CLARK -v- COMMONWEALTH BANK OF AUSTRALIA [2025] WASCA 127 (22 August 2025)

1. Although the appellant left the hearing at its commencement, when the primary judge declined to immediately rule on whether the bank had in fact lent the money to the second respondent, the appellant had been given a reasonable opportunity to present her case by evidence, information and submissions [4] ‑ [5], [7]. 2. The bank should be granted leave to bring the application for summary judgment out of time [12] ‑ [17]. 3. The bank had established the following by its affidavit evidence:

(a) The appellant was the sole director and shareholder of the second respondent and the registered proprietor of the property [19].
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> (b) The bank and the second respondent entered into a loan agreement on or about 29 March 2010 in relation to a loan amount of $522,000, which loan amount was advanced by the bank to the second respondent on or about that date [21] ‑ [22].
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> (c) The guarantee on which the bank relied had been entered into by the appellant on or about 9 April 2010. By the guarantee, among other things, the appellant guaranteed to the bank that the second respondent would pay the amounts owing to the bank under the loan agreement. The guarantee provided that the 'supporting security' for the guarantee was a registered mortgage over the property [23] ‑ [24].
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> (d) A registered mortgage over the property in favour of the bank had been entered into by the appellant in October 2007. It secured, among other things, all money that the appellant owed the bank under a guarantee which was acknowledged to be an agreement to which the mortgage so extended [20]. As has been noted, the guarantee so provided [24].
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> (e) The second respondent was in default under the loan agreement. Accordingly, pursuant to the guarantee the appellant had become liable to pay the outstanding amount under the loan agreement [25].
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> (f) Notice of default had issued to each of the appellant and the second respondent and neither had rectified the default within the time provided by the notice [26] ‑ [27].
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> (g) As at 4 February 2025 the amount owing under the loan agreement, the guarantee and the mortgage was $526,286.41 [28].

3. The primary judge was satisfied that the bank had established a prima facie right to summary judgment [29] ‑ [32]. His Honour then considered whether the appellant had an arguable defence to the claim. The primary judge identified that the appellant appeared to have raised four potential defences [35]. We will come back to these so far as they are relevant to the appellant's grounds of appeal. For now, it suffices to observe that the primary judge considered each of the four potential defences and determined that each matter did not raise an arguable defence [36] ‑ [51]. The primary judge concluded that the appellant had not put before the court any facts, or made any submissions, which could give rise to an arguable defence to the bank's claim [52]. Nor, in his Honour's view, was there some other reason not to award summary judgment in relation to the bank's claim [53] ‑ [55].
4. After referring to relevant authority, the primary judge stated that he had the 'high degree of certainty required as to the ultimate outcome of the action' to make it appropriate to order summary judgement in favour of the bank in relation to its claim against the appellant [57].
5. The primary judge made orders that:

1. The [bank] have leave to bring an application for summary judgment. 2. Pursuant to Order 14 Rule 3 of the Rules of the Supreme Court judgment be entered in favour of the [bank] against the [appellant] in the following terms:

(a) The [appellant] pay to the [bank] the sum of $548,716.18 plus interest continuing after judgment at the rate and in the manner specified in the guarantee and mortgage that are the subject of this action until payment in full.
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> (b) Within 28 days of the date of service of this order the [appellant] give possession to the [bank] of [the property].
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> (c) Pursuant to clause A22.8 of the mortgage that is the subject of this action, the [appellant] pay the [bank's] reasonable legal costs of the action, including of the application for summary judgment, as between a law practice and its client, to be taxed if not agreed.

6. His Honour provided reasons explaining why he was satisfied that it was appropriate to exercise the costs discretion in a manner consistent with a contractual provision as between the bank and the appellant [58] ‑ [60].

1. On 11 June 2025 the appellant commenced an appeal from the primary judge's orders of 21 May 2025. Subsequently the parties consented to the execution of the primary judge's orders being stayed pending the determination of the appeal. On 15 July 2025 the appellant filed her appellant's case.
2. The appellant advances five grounds of appeal. These are reproduced in full in the schedule to these reasons. In summary the grounds allege that:
   1. The primary judge erred in fact in finding that the bank advanced the loan amount to the second respondent under the loan agreement.
   2. The primary judge erred in fact and law in finding that the National Credit Code did not apply to the loan agreement, the guarantee or the mortgage.
   3. The primary judge erred in law in not finding that the bank has committed an offence under the National Credit Code in respect of which the appellant is entitled to relief under both the National Credit Code and the Criminal Code (Cth).
   4. The primary judge erred in law in finding that the Supreme Court of Western Australia had jurisdiction.
   5. The primary judge's decision was affected by bias.
3. The Registrar's Notice to Attend requires consideration of whether the appeal should be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding. It thus invokes r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules. The principles that apply to r 43(2)(g)(i) were considered in Jackson v National Australia Bank Ltd.[2] For present purposes it suffices to state that we rely on, and need not repeat, what we stated in Jackson as to the application of r 43(2)(g)(i).

1. It is appropriate to start with the allegation of bias insofar as actual or apprehended bias strikes at the validity and acceptability of a hearing and its outcome: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd.[3] It is unclear whether the appellant alleges actual bias or apprehended bias. The principles applicable to both kinds of bias are summarised, in terms that we adopt, in Armet v Stephen Browne.[4] In our view, having reviewed the record in the primary proceedings, neither kind of bias arguably taints the orders for summary judgment made by the primary judge.
2. The basis for the appellant's allegation of bias is particularised at (a) ‑ (e) of ground 5. Particular (a) does nothing more than state the legal orthodoxy as to the burden of proof. The primary judge acknowledged that the bank bore the relevant burden [29], [33], [56]. Particular (c) is misconceived for the reasons we give in relation to ground 1 (see [19] ‑ [22] below). Particular (e) does no more than attempt to provide the appellant's reasons for not remaining at the hearing before the primary judge. The appellant's reasons for leaving the hearing cannot demonstrate bias, either actual or apprehended, on the part of the primary judge. This leaves particulars (b) and (d).
3. As to particular (b), Gething J's refusal, at the commencement of the hearing, to immediately rule on whether in fact the bank had lent the loan amount to the second respondent does not demonstrate bias. At the commencement of the hearing the appellant said that she needed one question answered, namely:

I need to know whether the [bank] was the lender of the money. I can't go any further if that cannot be established (ts 2).

1. Discussion on that point continued. Eventually the appellant questioned why the parties were in court if the bank had not lent the money; this, in the appellant's view, was the 'ground rule' before going further (ts 4). The primary judge said:

Well, I think you've made that point. I'm not going to - and that is one of the things that the [bank] has to prove in order to get summary judgment. I am not going to - I'm going to deal with the application as a whole. I'm not going to deal with the application in bits and pieces. That is one of the things I need to consider, but I'm not going to deal with the application in bits and pieces (ts 4).

1. The primary judge's ruling that he would hear the application as a whole - and would not immediately rule on one aspect of the bank's claim ‑ was entirely conventional. It did not ‑ and could not even arguably ‑ demonstrate bias on the part of the primary judge. The appellant's contention to the contrary is properly characterised as irrational, fanciful or absurd.
2. Particular (d) is concerned with the primary judge's rejection of the appellant's reliance on s 58 and s 105 of the Transfer of Land Act 1893 (WA). See the primary judge's reasons at [49]. The primary judge's rejection of one of the appellant's asserted defences on the basis that it is legally misconceived does not and cannot ‑ even arguably ‑ demonstrate bias on the part of the primary judge. Bias is not established by pointing to an adverse decision on the merits. See Ogbonna v CTI Logistics Ltd;[5] G v W;[6] Zaghoul v Bradley Bayly Holdings Pty Ltd.[7]
3. Ground 5 does not have a reasonable prospect of succeeding.

Ground 1: the allegation that the respondent bank was not the lender

1. The appellant claims that the respondent bank has not stated that it is the 'true lender' of the money advanced under the loan agreement. That is incorrect. The bank's statement of claim avers that the bank advanced the $522,000 loan amount under the loan agreement to the second respondent (par 4(b)). Moreover, an officer of the bank, Manoj Thomas, swore an affidavit on 4 February 2025 in support of the application for summary judgment. Mr Thomas confirmed, on oath, that: (1) the bank and the second respondent entered into a loan agreement in writing on or about 29 March 2010; (2) pursuant to the loan agreement the second respondent borrowed a loan amount of $522,000 from the bank and agreed to repay that amount on the terms and conditions of the loan agreement; and (3) on or about 29 March 2010 the bank advanced the $522,000 to the second respondent pursuant to the loan agreement (par 5).
2. Mr Thomas' evidence was not contradicted by any evidence on the part of the appellant. We acknowledge that, in an affidavit sworn 30 October 2024, the appellant made the bald assertion that 'at no time has the [bank] claimed to be the true lender of the money' (par 3(a)). There is a similar assertion in an unsworn affidavit of the appellant purportedly filed on 26 February 2025 (par 3(a)). Those statements are self‑evidently incorrect given the matters we have referred to above. In any case the appellant's assertion rises no higher than an assertion as to whether a claim has been made by the bank. There is no assertion on the part of the appellant ‑ and critically no evidence ‑ contradicting Mr Thomas' evidence that the bank in fact advanced the loan amount to the second respondent under the loan agreement.
3. The primary judge found that:

The Loan Amount was advanced by [the bank] to [the second respondent] on or about 29 March 2010. This evidence squarely addresses the concern raised by [the appellant] at the commencement of the hearing [22].

The [appellant's] first assertion is that [the bank] does not claim to be the 'true lender of the money'. However, as mentioned ... Mr Thomas [an officer of the bank] has given evidence that [the bank] advanced the Loan Amount to [the second respondent]. [The appellant] did not adduce any evidence to the effect that [the bank] did not in fact advance the money to [the second respondent], so as to give rise to a factual issue warranting a trial of the action. This assertion does not raise an arguable defence [36].

1. Those findings were correct on the evidence before the primary judge. There was no basis for the primary judge to find otherwise. In the circumstances, ground 1 does not have a reasonable prospect of succeeding.

Ground 2: the allegation that the National Credit Code applies

1. The appellant relied on the National Credit Code to answer the bank's claim. See primary reasons [37], [41]. The primary judge rejected the defence. Two reasons were given:
   1. First, in the primary judge's view, properly construed, the mortgage could apply to a secured amount to which the National Credit Code applied and a secured amount to which the National Credit Code did not apply. As such, there was no arguable defence to the bank's claim based on the fact that the mortgage was initially entered into to secure a loan made to her personally (such that the National Credit Code applied to the mortgage). The appellant agreed to the mortgage being used to secure her obligations under the guarantee [45] ‑ [47].
   2. Second, even if the loan agreement, the guarantee and the mortgage were regulated by the National Credit Code, the appellant had not given any evidence of any issue arising under the National Credit Code that would give rise to an arguable defence to the bank's claim [48].
2. Ground 2 predominantly alleges error in the primary judge finding that the National Credit Code did not apply to the loan agreement, the guarantee or the mortgage. See the chapeau to ground 2 and particular (b) to ground 2. That is also the tenor of the appellant's very sparse written submissions in support of ground 2.
3. The difficulty with this aspect of ground 2 is that it challenges a strawman. The primary judge did not find, as is asserted by the appellant, that the National Credit Code did not apply. Rather, his Honour found that the mortgage operated to secure the appellant's obligation under the guarantee whether or not the National Credit Code applied; and, in any case, even if the National Credit Code applied, the appellant had not identified any issue arising under the National Credit Code that gave rise to any arguable defence. So understood ground 2 does not have a reasonable prospect of succeeding. This conclusion is not affected by particular (c) or (d). Particular (c) also misstates the primary judge's findings - the primary judge did not find that pt B of the memorandum of common provisions did not apply (see [31] ‑ [33] below). Particular (d) - dealing with the terms of the default notice - raises a matter that is irrelevant to the proper construction of the memorandum of common provisions. Nor are the terms of the default notice relevant to whether as a matter of fact or law the transaction the subject of the bank's claim was governed by the National Credit Code.
4. However, in particular (a) of ground 2 the appellant complains that the primary judge has ignored her defence. It is, in the circumstances, appropriate that we look further at this issue in the context of ground 2
5. In her defence dated 30 October 2024 the appellant pleaded at par 4:

b) Furthermore, the Letter of Offer was not attached to the registered Mortgage, therefore, it does not come under the jurisdiction of the TLA or State. Rather, this Letter of Offer is a Credit Agreement and comes under the jurisdiction of the Credit Act, as an unsecured Credit.
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> c) This is also confirmed near the top of the signature page of the Credit Agreement, which states: When you sign this Schedule, you accept our offer, as set out in the Schedule and the UTC, and acknowledge that any Security stated at item K extends to cover your obligations under the Contract and any land mortgage listed at item K given by you on or after 13 June 2005 covers all other moneys you owe to us now or in the future on any account which are not subject to the Consumer Credit Code. The Credit Code mentioned above is under the jurisdiction of Section 3 of the Credit Act.
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> d) Because the claim has not complied with Section 7 of the Credit Act and notwithstanding A, B, and C above, the reality is that none of the registered Mortgages listed in the Credit Agreement are applicable to the Agreement, which brings to question: -

Are the usual Terms and Conditions of the Credit Agreement still applicable without security?

1. In written submissions filed 24 March 2025 in opposition to the summary judgment application the appellant contended that the loan agreement and the guarantee were governed by the National Credit Code. This, on the appellant's case, had the result that the mortgage excluded any indebtedness under the guarantee. The appellant relied on the terms of the memorandum of common provisions incorporated into the mortgage (pars 5 ‑ 6).
2. We do not accept the appellant's contention that the loan agreement and the guarantee were governed by the National Credit Code. The types of credit provision to which the Code applies is provided for in s 5. Among other things, the debtor must be a natural person or a strata corporation (s 5(1)(a)). That is not so in the present case. The second respondent - the relevant 'debtor' ‑ is a proprietary limited company not being a strata corporation. As to guarantees, the Code applies to a guarantee if it guarantees obligations under a credit contract and the guarantor is a natural person or a strata corporation (s 8(1)). The appellant ‑ as the relevant guarantor ‑ is plainly a natural person. But the loan agreement is not a credit contract. A 'credit contract' is a contract under which credit is or may be provided being the provision of credit to which the Code applies (s 4). As the loan agreement was not governed by the National Credit Code, so too the guarantee was not governed by the National Credit Code.
3. Accordingly, in our view, neither the loan agreement nor the guarantee was governed by the National Credit Code.
4. As we have mentioned, the primary judge did not determine whether the National Credit Code applied to the loan agreement, the guarantee or the mortgage. His Honour approached the asserted defence another way. The primary judge referred to the relevant parts of the loan agreement, the mortgage and the memorandum of common provisions [20], [42] ‑ [44]. His Honour reproduced the following part of the memorandum of current provisions [43]:

PART B - Mortgage securing unregulated credit B2.

This Part applies, in addition to Part A, once you have entered into a Secured Agreement with us relating to credit where no Consumer Credit Law applies. From that time, the extended definition of Amount Owing applies and this Part operates to the extent that this mortgage secures an Amount Owing to which no Consumer Credit Law applies.

1. As has been seen, the guarantee was a 'Secured Agreement'.
2. The primary judge held that, properly construed, the mortgage could apply to a secured amount to which the National Credit Code applied and a secured amount to which the National Credit Code did not apply [45]. We agree. That is the natural and ordinary reading of the provisions reproduced at [31] above. The contrary construction is not open. Once that point is reached the matters advanced by the appellant by way of her pleaded defence go nowhere. If, as the appellant contends, the National Credit Code applies to the transaction, the mortgage operates. Or if, as the bank contends, the National Credit Code does not apply to the transaction, the mortgage also operates.
3. The latter situation is contemplated by s 7(2) of the National Credit Code. Section 7 provides:

Mortgages to which this Code applies

(1) This Code applies to a mortgage if:

(a) it secures obligations under a credit contract or a related guarantee; and

(b) the mortgagor is a natural person or a strata corporation.

(2) If any such mortgage also secures other obligations, this Code applies to the mortgage to the extent only that it secures obligations under the credit contract or related guarantee.

1. The appellant could only demonstrate that ground 2 has a reasonable prospect of succeeding if, contrary to our view, the National Credit Code applies and some issue arising under the Code gives rise to an arguable defence. Nothing has been pointed to in the latter respect. The absence of any contention in the latter respect is marked so far as the primary judge expressly found that the appellant had not given any evidence of any issue arising under the National Credit Code that could give rise to an arguable defence [48]. That finding is unchallenged. In the absence of a challenge to that finding particular (a) of ground 2 (like the rest of ground 2) does not have a reasonable prospect of succeeding.

Ground 3: whether respondent committed an offence against the National Credit Code

1. Ground 3 alleges that the respondent bank has committed an offence or offences under the National Credit Code. This ground is predicated on ground 2 succeeding, and on the appellant establishing that the National Credit Code applied.
2. The conclusion that ground 2 does not have reasonable prospects of succeeding is dispositive of ground 3. As ground 2 does not have a reasonable prospect of succeeding, so too ground 3 does not have a reasonable prospect of succeeding.

1. Ground 4 alleges that the Supreme Court of Western Australia lacked jurisdiction because all 'Commonwealth matters come under commonwealth jurisdiction'.
2. The primary judge observed that the National Credit Code has been adopted 'as a law of Western Australia' [38] (emphasis added). That observation is not strictly correct. Section 4 of the Credit (Commonwealth Powers) Act 2010 (WA) adopts the relevant provisions of the 'National Credit legislation' for the purposes of s 51(xxxvii) of the Commonwealth Constitution. That provision of the Constitution empowers the Commonwealth Parliament to make laws with respect to matters referred by a State Parliament, but so that the law shall only extend to States by whose Parliaments the matter is referred, or which afterwards adopt the law. As such, the National Consumer Credit Protection Act 2009 (Cth) (including the National Credit Code insofar as the Code has effect as a law as being scheduled to that Act) operates as Commonwealth rather than State law (see s 18 and s 19 of that Act).
3. However, ground 4 proceeds on the false premise that the Supreme Court lacks jurisdiction in matters arising under a federal Act. Section 39(2) of the Judiciary Act 1903 (Cth) confers the Supreme Court with general federal jurisdiction in those matters. Further, subject to its general jurisdictional limits, the Supreme Court, being a superior court of a State, is conferred with jurisdiction in relation to civil matters arising under the National Consumer Credit Protection Act by s 187(1) of that Act.
4. It is plain, and beyond argument, that the Supreme Court has jurisdiction to adjudicate in the present matter, even assuming that the claimed defence under the National Credit Code characterises the present dispute as a matter arising under the National Consumer Credit Protection Act.
5. As such, ground 4 does not have a reasonable prospect of succeeding.

1. For these reasons, none of the appellant's grounds of appeal has a reasonable prospect of succeeding. The appeal was to be dismissed. It was appropriate, in the circumstances, to discharge the court's earlier orders staying the execution of the orders for judgment as entered by the primary judge on 21 May 2025.
2. Accordingly, at the conclusion of the oral hearing on 22 August 2025 we made orders that:
   1. The appeal is dismissed.
   2. The order of Hall JA made 23 June 2025 (such order having the effect of staying the execution of the orders for judgment entered by Gething J on 21 May 2025 in Supreme Court of Western Australia action CIV 2170 of 2024) is discharged.
   3. The appellant pay the first respondent's costs of the appeal, including any reserved costs, to be assessed if not agreed.
3. The costs order in favour of the respondent bank followed the event.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Commonwealth Bank of Australia v Shada Pty Ltd [2025] WASC 200.

[2] Jackson v National Australia Bank Ltd [2025] WASCA 80 [18] ‑ [20].

[3] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [2] ‑ [3], [117].

[4] Armet v Stephen Browne [2024] WASCA 44 [56] ‑ [59].

[5] Ogbonna v CTI Logistics Ltd [2021] WASCA 25 [25] ‑ [28].

[6] G v W [2021] WASCA 180 [62] ‑ [64].

[7] Zaghoul v Bradley Bayly Holdings Pty Ltd [2025] WASCA 81 [80].