COMMONWEALTH BANK OF AUSTRALIA v GINBEY

The background to the Summary Judgment Application and the decision of the learned Master

1. The Bank filed its Writ of Summons on 20 June 2019. Mr Ginbey filed his appearance on 3 July 2019.

1. In support of the Summary Judgment Application, the Bank relied on the affidavit of Mr Mark Hanrahan, sworn 8 August 2019. The Bank also relied on two affidavits to prove the service, on Mr Ginbey, of a notice of default, and of the Summary Judgment Application and the documents in support thereof.[6] In addition, the Bank filed two further affidavits, each sworn by Ms Cassandra Guy, a solicitor. The first of Ms Guy's affidavits, sworn 14 August 2019, was filed in support of the Bank's application for leave to file the Summary Judgment Application out of time.[7] Ms Guy's second affidavit set out the current arrears on the loan, the total outstanding principal and interest, and the amount of interest accruing daily.[8]
2. Mr Hanrahan appears to have been employed by the Bank, and deposed to having personal knowledge of the facts referred to in his affidavit. In summary, Mr Hanrahan's evidence was that the Ginbeys entered into the Loan Agreement with the Bank on about 10 July 2009; on about 24 August 2009, the Bank advanced moneys (loan amount) to the Ginbeys pursuant to the Loan Agreement; the Ginbeys secured all moneys owing under the Loan Agreement by the Mortgage over the Properties; as at 18 April 2019, the Ginbeys had failed to pay the Bank the sum of $114,037.80 and were in default under the Loan Agreement and the Mortgage; by a written notice dated 18 April 2019 the Bank gave the Ginbeys notice that they were in default, and stated that if the default was not rectified within the time specified in the notice, the whole of the amount due and owing under the Loan Agreement would become immediately due and payable, and the Bank would commence enforcement proceedings; the Ginbeys failed to rectify the default within the time specified, and therefore the whole of the amount owing was due and payable and the Bank became entitled to possession of the Properties. Mr Hanrahan deposed that he believed that Mr Ginbey had no defence to the Bank's claim.
3. Mr Hanrahan's evidence in relation to the terms of the Loan Agreement was, relevantly, and in summary, that:
   • the Loan Agreement comprised the Bank's Consumer Credit Contract Schedule (Schedule) and the Bank's Usual Terms and Conditions (UTC);
   • the loan amount was $1,260,000.00;
   • interest was calculated on the loan amount at a variable rate;
   • the Ginbeys agreed to repay the loan amount, plus accrued interest, to the Bank by 24 monthly interest only repayments, and then 336 monthly principal and interest repayments;
   • the Ginbeys secured all money owing under the Loan Agreement by a first registered mortgage over the Properties, which comprised a property in Carmel (Carmel property) and another property in Kalamunda;[9]
   • the Loan Agreement provided that the Ginbeys would be in default if they failed to repay any of the loan amount in accordance with the terms of the Loan Agreement;
   • in the event of a default, the Bank would issue a notice to the Ginbeys requiring the default to be rectified by the time stated in the notice and would be entitled to demand the Ginbeys pay any costs and expenses incurred by the Bank in enforcing its rights under the Loan Agreement;
   • if the Ginbeys failed to comply with the notice within the time stated in the notice the whole of the amount owing under the Loan Agreement would become immediately due and payable; and
   • the Ginbeys agreed that if an obligation to pay the Bank under the Loan Agreement became merged in a court order, the Ginbeys would pay interest on that amount as a separate obligation.
4. Mr Hanrahan's evidence in relation to the terms of the Mortgage was that the Mortgage incorporated the terms contained in a Memorandum of Provisions J584291 (Common Provisions). The Common Provisions relevantly provided, in summary, that:
   • the Ginbeys would be in default if they failed to repay any of the loan amount in accordance with the terms of the Loan Agreement;
   • if the Ginbeys were in default, the Bank would issue a notice to the Ginbeys requiring the default to be rectified by the time stated in the notice and would be entitled to demand payment of any costs incurred by the Bank in exercising its powers under the Mortgage;
   • if the Ginbeys failed to comply with the notice by the time stated in the notice, the whole of the amounts owing under the Loan Agreement and the Mortgage would become immediately due and payable and the Bank would be entitled to possession of the Properties; and
   • if an obligation to pay the Bank an amount pursuant to the Mortgage became merged in a court order, the Ginbeys would pay interest on that amount as a separate obligation.
5. Annexed to Mr Hanrahan's affidavit were copies of certificates of title showing the Properties encumbered by the Mortgage, the Loan Agreement, the Schedule, the UTC, the Mortgage, and the Common Provisions.

The Bank's application to extend time to bring the Summary Judgment Application

1. The Bank sought leave to extend the time for filing the Summary Judgment Application.[10] In her affidavit filed in support of that part of the Application, Ms Guy relevantly deposed, in summary, that: Mr Ginbey filed an appearance to the Action on 3 July 2019; the Bank obtained a copy of the appearance on 4 July 2019; Mr Hanrahan instructed her that between 11 July 2019 and 29 July 2019, the Bank 'was carrying out an internal loan origination review';[11] on 2 August 2019, the Bank instructed her to prepare the Summary Judgment Application; before that Application was filed, the Bank's solicitors wrote to Mr Ginbey querying the factual nature of any opposition to the Application; on 13 August 2019, Mr Ginbey advised that he 'was in an arrangement with [the Bank] to sell one of the [P]roperties the subject of this action';[12] and that on 13 August 2019, the Bank's solicitors wrote to Mr Ginbey, advising that the Bank's instructions were that Mr Ginbey 'had failed to comply with the terms of the arrangement to sell the property and instructed [its solicitors] to file the [Summary Judgment Application].'[13]
2. The Summary Judgment Application was filed on 14 August 2019.[14]

1. The Summary Judgment Application was listed before Acting Master Strk on 29 August 2019. On that occasion, the Acting Master made orders granting Mr Ginbey four weeks (until 27 September 2019) to file and serve any affidavit and any written submissions in opposition to the Summary Judgment Application, and gave the Bank a further two weeks (until 10 October 2019) to file any responsive affidavit and an outline of submissions. Her Honour gave Mr Ginbey four weeks in which to file his affidavit and submissions in response to Mr Ginbey's request for four to six weeks to do so. Her Honour listed the Summary Judgment Application for hearing on 22 October 2019 (Hearing), and made an order granting the parties liberty to apply.[15]
2. Mr Ginbey did not file any affidavit in accordance with the orders made by the Acting Master within the time specified, or at all. That was despite the fact that the Hearing was almost eight weeks after the programming orders were made by the Acting Master. Nor did Mr Ginbey exercise the liberty to apply, granted by the Acting Master, in order to make an application for an extension of time in which to file his affidavit and submissions in opposition to the Summary Judgment Application.

1. At the commencement of the Hearing, Mr Ginbey applied for an adjournment of the hearing of the Summary Judgment Application (Adjournment Application). Mr Ginbey submitted that the hearing of the Summary Judgment Application should be vacated to await service of a summary judgment application on Mrs Ginbey, so that the two applications could then be dealt with together.[16]
2. In addition, Mr Ginbey applied for a further 14 days in which to file an affidavit in opposition to the Summary Judgment Application.[17] Mr Ginbey told the learned Master that he had been trying to find his papers concerning the Bank, which were in storage, together with papers from his office. Mr Ginbey told the learned Master that he believed that he and his wife 'do have an arguable defence, based on discussions I had over a significant period of time with various officers of the [Bank].'[18] However, he acknowledged that he had not filed anything in response to the Summary Judgment Application.[19]
3. In support of his application for these orders, Mr Ginbey sought to hand up an affidavit, sworn 21 October 2019, which he had not filed in the court (Affidavit).[20] Although not filed in the proceeding, the Master had regard to the contents of the Affidavit during the Hearing.[21]
4. In summary, Mr Ginbey dealt with three matters in his Affidavit. First, he referred to the progress of the Action as against Mrs Ginbey. He deposed that although Mrs Ginbey had been advised by the Bank's solicitors that the Bank would be applying for summary judgment against her, the Bank had not yet served Mrs Ginbey with any such application. Mr Ginbey deposed to his belief that it was necessary for the Bank to pursue that application against Mrs Ginbey in order to achieve the outcome it sought, as Mr and Mrs Ginbey jointly owned the Properties.[22] Mr Ginbey considered it would be appropriate for him and his wife to file a joint affidavit setting out their grounds for opposing the Bank's application for summary judgment.[23]
5. Secondly, Mr Ginbey sought to explain why he had not, prior to the Hearing, filed any affidavit in opposition to the Summary Judgment Application. He deposed that he had been unable to locate, either at his home, or at another residential address where he stored documents, any documents in relation to the Loan Agreement, including 'correspondence and file notes relating to various variations to the terms of the loan negotiated and agreed'[24] between the Ginbeys and the Bank. Mr Ginbey deposed that 'those file notes relating to the variations to the terms of the loan are vital in my defence to the Action and to oppose the Summary Judgment [A]pplication and will also be vital documents in [Mrs Ginbey's] defence to the Writ of Summons that has now been served on her and to oppose any application for Summary Judgment made against her'.[25] Mr Ginbey further deposed that he also held documents in commercial storage and he had 'yet to locate the files relating to the loan and containing all my and [Mrs Ginbey's] loan documents, correspondence and notes relating to the loan and to the loan variations'.[26]
6. Thirdly, Mr Ginbey deposed that he believed that he and Mrs Ginbey had a defence to the Action.[27] However, he did not refer to the nature of that defence or provide any detail about it whatsoever.

1. In the course of the Hearing, the learned Master asked Mr Ginbey to explain his defence to the Action. Mr Ginbey claimed that he had had discussions with an officer or officers of the Bank in which it was agreed that the Ginbeys would sell the Carmel property to reduce their debt, that the proceeds of the sale would be paid to the Bank, that there would be a moratorium on the payment of monthly interest, subject to the sale of the Carmel property, and that after its sale there would be a renegotiation of the balance of the loan. Mr Ginbey explained that he and his wife had had difficulty finding a buyer for the Carmel property. He claimed that the Bank then sought to take possession of that property, at which point the Ginbeys' real estate agent refused to market it for sale. Mr Ginbey told the learned Master that he did not accept that the Bank was entitled to take possession of the Carmel property because 'no notices had been received by us'.[28] Mr Ginbey claimed that the result was that he and his wife were left in a position where 'for a significant number of weeks ... [the Carmel] property could possibly have been sold, [but] we were unable to sell it'.[29]
2. Mr Ginbey also told the learned Master that he and his wife were assisting in proceedings involving a family member in the Family Court, and sought an adjournment of the hearing of the Summary Judgment Application until after the trial in those proceedings was held.[30]

1. The learned Master gave his reasons for decision extemporaneously. The transcript of his Honour's reasons was in evidence on the appeal (Reasons).[31]
2. The learned Master began by referring to the Summary Judgment Application, and the programming orders which had been made. He observed that nothing had been filed by Mr Ginbey, and that he had instead applied, on the morning of the hearing, for an adjournment. The learned Master noted that the Affidavit 'sets out some reasons why nothing has been done for the last almost eight weeks to advance [Mr Ginbey's] position'.[32]
3. The learned Master considered the documents filed by the Bank in support of the Summary Judgment Application. The learned Master concluded that the Summary Judgment Application was 'in order'.[33] His Honour noted that the affidavit filed in support of that Application established that 'money has been loaned, it was secured against real estate and there is default under the loan, and as is the position at law, the plaintiff now seeks possession of the property so it can move to sell the property and reduce its debt'.[34] It is apparent that the learned Master regarded the documents filed by the Bank as supporting the grant of the Summary Judgment Application, in the absence of some indication from Mr Ginbey that he may have a defence to the Action.
4. The learned Master then considered the Adjournment Application. He concluded that there was no basis for an adjournment 'apart from the fact that the ... [A]ffidavit doesn't really advance [Mr Ginbey's] position'.[35] It appears that what his Honour meant was that the only basis for the Adjournment Application was that Mr Ginbey was in the position where the hearing was due to proceed but he had not filed an affidavit which set out any defence to the Action.
5. The learned Master noted that while the Affidavit explained the difficulties Mr Ginbey had encountered in attempting to obtain access to documents which he claimed may provide a defence to the Action, the Affidavit did not set out Mr Ginbey's defence, 'or even hint at any defence.'[36]
6. The learned Master also considered the progress of the Action as against Mrs Ginbey and whether an adjournment should be granted to enable any summary judgment application against her to be determined at the same time as the Summary Judgment Application in respect of Mr Ginbey. His Honour concluded that the slower progress of the Action as against Mrs Ginbey did not warrant an adjournment because 'the liability is joint and several and the fact that summary judgment hasn't been sought against [Mrs Ginbey] as yet can in no way stand ... in the way of the rights of the [Bank] to judgment against [Mr Ginbey].'[37]
7. The learned Master therefore concluded that the Adjournment Application should be refused, and proceeded to make the orders which were sought by the Bank.[38]

1. Mr Ginbey advances nine grounds of appeal. Doing the best we can to discern their meaning and intent, grounds of appeal 3, 4, 8 and 9 allege error in the learned Master's decision to refuse to grant the Adjournment Application or in failing to grant Mr Ginbey an extension of time in which to file an affidavit in opposition to the Summary Judgment Application. Grounds 2, 5, 6 and 7 allege error in the learned Master's decision to grant the Bank leave to extend time to file the Summary Judgment Application. Finally, ground 1 alleges error in the learned Master's decision to allow the Summary Judgment Application. It is convenient to deal with the grounds in that order.

Grounds 3, 4, 8 and 9: Grounds alleging errors of fact and law in the learned Master's refusal of the Adjournment Application or failure to grant Mr Ginbey's application for an extension of time to file an affidavit

1. It is convenient to commence by noting the principles applicable in respect of the issues raised by these grounds of appeal.
2. Each of grounds 3, 4, 8 and 9 are concerned with the learned Master's refusal of the Adjournment Application or with his failure to grant Mr Ginbey more time in which to file an affidavit in opposition to the Summary Judgment Application. A decision of either kind is clearly a decision of a discretionary nature. In an appeal against a decision of that kind, the standard of review described in House v The King[39] applies, that is:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. It is well established that an appellate court will exercise particular caution in reviewing a decision which involves the exercise of discretion on a matter of practice and procedure.[40] That is especially so in the case of the numerous decisions of this kind made in relation to the matters in the Master's list.
2. Each of grounds 3, 4, 8 and 9 allege an error by the learned Master on the basis of a denial of procedural fairness or bias in reaching the relevant decision. Procedural fairness is an essential characteristic of judicial proceedings. However, its content is dependent upon the nature of the proceedings and the persons claiming its benefit.[41]
3. At its heart, an allegation of bias, although incapable of precise definition, is an allegation of the absence of impartiality.[42] The rule that judges and judicial decision makers must act without bias is one aspect of the requirements of procedural fairness.[43] None of Mr Ginbey's grounds particularised the nature of the bias alleged. He did not identify any foundation for an allegation of actual bias. As this court recently observed:[44]

An inquiry about actual bias in the form of prejudgment requires assessment of the state of mind of the judge in question, ordinarily on the basis of what the judge had said and done. As French J noted in Jia v Minister for Immigration and Multicultural Affairs:

The onus of demonstrating actual bias lies upon an applicant for judicial review and it is a heavy onus. The fact that an applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias.

That is, as Kirby J noted in Jia, an allegation of actual bias is subject to a 'stringent standard of proof' and will only be upheld 'where the accusations are distinctly made and clearly proved' and ... where it is 'firmly established'. (footnotes omitted)

1. It may be that Mr Ginbey's grounds should be understood as alleging ostensible bias. If so, the question in such a case is whether a fair‑minded lay observer might reasonably apprehend that the learned Master might not bring an impartial mind to the resolution of the question he was required to decide.[45]
2. When an apprehension of bias is alleged, it is necessary to identify what is said might lead the judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between that matter and the feared deviation from the course of deciding the case on its merits.[46]
3. We now turn to consider the alleged errors of which Mr Ginbey complains.

The learned Master erred in fact and law 'in refusing [Mr Ginbey] additional time to file ... [an] affidavit in opposition to the [Summary Judgment Application]' and denied '[Mr Ginbey] procedural fairness and or natural justice' (ground 3)

1. At the outset, we note that in the reasons, the learned Master did not expressly deal with Mr Ginbey's application for an extension of time in which to file an affidavit in opposition to the Summary Judgment Application. Having refused the Adjournment Application, with the result that the learned Master would proceed to determine the Summary Judgment Application, Mr Ginbey's application for further time to file an affidavit was necessarily rendered inutile. In those circumstances, there was no error by the learned Master in failing to deal separately with Mr Ginbey's application for an extension of time to file an affidavit.
2. Mr Ginbey submitted that the learned Master's decision to refuse to permit him more time to file his affidavit evidence in opposition to the Summary Judgment Application denied him natural justice or procedural fairness, and exhibited a bias in favour of the Bank.[47] That submission must be rejected, for the following reasons.
3. First, nothing in the Affidavit, or in Mr Ginbey's oral submission on 22 October 2019, provided any indication that he had a defence to the Action. The learned Master noted that Mr Ginbey had not provided even a 'hint' of a defence. As the learned Master acknowledged, Mr Ginbey had had some difficulty locating his documents relevant to the Loan Agreement. However, Mr Ginbey did not outline or describe his defence to the Action. He did not, for example, deny that the Loan Agreement had been properly entered into. He did not deny the alleged default. He did not deny that the default had not been remedied.
4. Mr Ginbey claimed that he had attempted to put evidence before the learned Master 'of the misuse of powers by the [Bank] in earlier attempting to take vacant possession of the land ... and the agreement by the [Bank] to market that land from November 2018.'[48] (The extent of that 'attempt' was limited to oral submissions made by Mr Ginbey at the Hearing.) Mr Ginbey claimed that as a result of that conduct by the Bank, he and Mrs Ginbey had suffered loss and damage. He submitted that the decision by the learned Master to refuse to allow him to particularise that loss and damage was procedurally unfair. We are unable to agree. It is far from apparent that the state of affairs described by Mr Ginbey could provide a basis for a defence to the Action (as opposed to a cross claim[49]), or constituted some other reason for a trial of the Bank's claim.[50]
5. Mr Ginbey also submitted that he had told the learned Master that 'there had been extensive negotiations between the parties during 2017 and 2018 leading to the Loan Agreement between the parties being varied'.[51] Mr Ginbey submitted that '[o]n the 22 October 2019 [he] informed the Master of those negotiations and the variation to the loan repayment term, and informed the learned Master that none of those negotiations were referred to in Mr Hanrahan's affidavit or any affidavit of any employee, servant or agent of the [Bank].'[52] However, Mr Ginbey provided no particulars of the claimed variation of the Loan Agreement. He did not suggest that any variation, if it existed, had been committed to writing. And significantly, he did not explain how any variation of the Loan Agreement removed the entitlement of the Bank to recover the entirety of the amount borrowed, plus interest, or to take possession of the Properties in the exercise of its rights as a mortgagee under a registered first mortgage,[53] in the event of a default by the Ginbeys.
6. In this respect, we note that while Mr Ginbey acted for himself in these proceedings, he is a legal practitioner who has been admitted for many years, but is no longer in practice. As a legal practitioner, he can be expected to have been aware that it was essential for him to identify what his defence to the action was, and the court was entitled to expect that as a legal practitioner he had the ability to describe or explain the nature of that defence, whether in an affidavit, or in his oral submissions before the learned Master.
7. In those circumstances, the failure to provide Mr Ginbey with more time to file an affidavit in opposition to the Summary Judgment Application, when there was no indication whatsoever that that affidavit would identify a defence to the Action, did not constitute a denial of procedural fairness.
8. Secondly, Mr Ginbey had already been granted ample time in which to file his affidavit. As a legal practitioner, Mr Ginbey can be expected to have known the importance of filing an affidavit to indicate his defence to the Action, in the face of the Summary Judgment Application, within the time permitted. Yet in the eight weeks which had passed since the Acting Master made programming orders, Mr Ginbey had not filed any affidavit which gave any indication of what his defence to the Action might be.
9. A party is not entitled to expect an unlimited opportunity to marshal its case. While procedural fairness requires that a party must be given a sufficient opportunity to prepare and present its case,[54] a party who is given that opportunity but who does not take advantage of it cannot complain that they have been denied procedural fairness simply because the court has declined to provide a further opportunity to do so.[55]
10. Finally, and for completeness, while Mr Ginbey has not identified any express error in this aspect of the decision of the learned Master, he also has not identified anything in the facts which permits an inference of error in the exercise of the learned Master's discretion. In the circumstances we have outlined above, there is nothing to support the conclusion that the denial of further time for Mr Ginbey to file an affidavit in opposition to the Summary Judgment Application was unreasonable or plainly unjust.

The learned Master failed to observe procedural fairness in denying Mr Ginbey further time in which to file his affidavit in response to the Summary Judgment Application 'when Acting Master Strk had allowed time to [Mr Ginbey] to file his affidavit' (ground 8)

1. There is no merit in this ground. Acting Master Strk gave Mr Ginbey four weeks, as he had requested, to file any affidavit in opposition to the Summary Judgment Application. He failed to file any affidavit in that period, or in the following nearly four weeks prior to the Hearing.
2. For the reasons set out above in respect of ground 3, in circumstances where Mr Ginbey was given an ample opportunity to set out his defence to the Summary Judgment Application, had failed to avail himself of it, and had not identified that he had any defence to the Application, the learned Master's failure to grant Mr Ginbey further time to file an affidavit in opposition to the Summary Judgment Application did not constitute a denial of procedural fairness.

The learned Master erred in fact and law in accepting the Bank's submission 'of the calculation ... of a sum of money allegedly owing ... thereby exhibiting bias towards the [Bank]' and 'denied [Mr Ginbey] a right to submit his affidavit in response ... exhibiting bias against [Mr Ginbey]' (ground 4)

1. Mr Ginbey's complaint appears to be that the learned Master erred because he accepted the affidavit evidence filed on the Summary Judgment Application as to the amount owing, which included the affidavit of Ms Guy sworn 29 August 2019.
2. Mr Ginbey did not demonstrate any basis for concluding that the learned Master's acceptance of that affidavit evidence manifested actual bias towards the Bank, or bias against him. Further, the learned Master's acceptance of the affidavit evidence advanced by the Bank in support of its claim as to the arrears, the outstanding balance of principal and interest, and the daily interest which was accruing, provided no basis, in and of itself, for thinking that a fair minded lay observer might reasonably apprehend that the Master might not bring an impartial mind to the resolution of the Summary Judgment Application.
3. In so far as this ground alleges that the learned Master denied Mr Ginbey the opportunity to provide an affidavit in response to the Summary Judgment Application, we note, for completeness, that at no stage during the Hearing did Mr Ginbey suggest that the Bank's evidence as to the calculation of the amounts of principal, and interest outstanding, and accruing on a daily basis, should be doubted. Nor did he seek an opportunity to respond to that aspect of the Summary Judgment Application in particular. Mr Ginbey's assertion of bias against him really amounts to no more than a repetition of his claim that the learned Master's refusal of his application for an adjournment or more time to put on an affidavit constituted a denial of procedural fairness. To that extent, ground 4 must be dismissed, for the same reasons as are outlined above in relation to ground 3.

The learned Master erred in denying Mr Ginbey natural justice or procedural fairness and exhibited bias against him 'by failing to take into consideration any submissions made by [Mr Ginbey] ... that [the Summary Judgment Application] be heard at the same time as the [Bank's] summary judgment application against [Mrs Ginbey] [which was] subsequently listed for hearing on 19 December 2019' (ground 9)

1. There is no merit in this ground of appeal. As is apparent from the summary of the Reasons at [31] above, the learned Master took into consideration Mr Ginbey's submissions that the Summary Judgment Application should be heard at the same time as any summary judgment application the Bank might bring against Mrs Ginbey. Having taken Mr Ginbey's submissions into account, the learned Master rejected them.
2. Even if this ground is understood as an allegation that the learned Master erred in this aspect of his decision to refuse the Adjournment Application, this ground has no merit, for two reasons.
3. First, the learned Master concluded that the fact that summary judgment had not yet been sought in respect of the action as against Mrs Ginbey could not prevent the Bank pursuing its right to obtain judgment against Mr Ginbey, because the Ginbeys' liability to the Bank under the Loan Agreement and the Mortgage was joint and several. That was clearly correct. Under the UTC the persons named in the Schedule (namely the Ginbeys)[56] - referred to as 'you' in the UTC - was defined to refer to each of those persons separately and every two or more of them jointly, and provided that 'when two or more of you are Parties to the Contract your undertakings and agreements in the Contract bind you jointly and each of you separately. For example, we may ask any one of you to pay the full amount owing under the Contract.'[57] Further, in the event of a default which was not fixed in the time allowed, the UTC provided that the Bank 'may decide ... that all money owing by you under the Contract is due and payable immediately,'[58] that the Bank 'may sue you for payment of the money you owe us'[59] and that the Bank 'may exercise our rights under the Security, including our right to sell the Security Property'.[60] Similarly, the Common Provisions in respect of the Mortgage relevantly provided that 'you' (that is, the Persons named in the Mortgage as the mortgagor,[61] namely the Ginbeys) 'are liable for all the obligations under this [M]ortgage both separately on your own and jointly with any one or more other Persons named in this mortgage as mortgagor ...'.[62]
4. In practical terms, the Bank may not have been able to take possession of the Properties until it had obtained judgment in the Action as against Mrs Ginbey, whether on a summary judgment application or following a trial. The learned Master acknowledged that issue.[63] But as his Honour found, that was not a reason to refuse the Summary Judgment Application.
5. Secondly, no summary judgment application in respect of the Action as against Mrs Ginbey had been filed by the date of the Hearing. The Bank was under no obligation to bring such an application. The Adjournment Application thus constituted an application to adjourn the Summary Judgment Application until the occurrence of a future event, which might never occur.
6. Mr Ginbey did not demonstrate any basis for concluding that the learned Master's conclusion was affected by actual bias against him, nor did he identify anything prior to, or in the course of, the Hearing which gave rise to an apprehension of bias on his Honour's part. Furthermore, his Honour's rejection of Mr Ginbey's unmeritorious submission did not constitute a basis on which a fair minded lay observer might reasonably apprehend that the Master might not bring an impartial mind to the resolution of the Adjournment Application, nor did it otherwise constitute a denial of procedural fairness.
7. Finally, nothing in the facts provides any basis for concluding that the learned Master's decision to refuse the Adjournment Application was unreasonable or plainly unjust, so as to permit an inference that the learned Master failed to properly exercise his discretion as to whether to grant an adjournment.

Grounds 2, 5, 6 and 7: Grounds alleging errors of fact and law in the learned Master's decision to grant the Bank leave to extend time to file the Summary Judgment Application

1. The Summary Judgment Application was made pursuant to O14 r 1 RSC. That rule requires that an application for summary judgment be made within 21 days after an appearance 'or at any later time by leave of the Court'. In this case, Mr Ginbey's appearance was filed on 3 July 2019. The Summary Judgment Application was made on 14 August 2019. It was thus filed 3 weeks out of time.
2. The policy objective behind the time limit in O 14 r 1 RSC is well established. Its purpose is to ensure that applications for summary judgment are made at an early stage, before unnecessary expense has been incurred in the proceedings.[64]
3. The discretion to grant leave to bring an application out of time is conferred for the purpose of avoiding an injustice to a plaintiff which would result from requiring strict compliance with the time limit in the rule. In determining whether to grant an application for leave to bring the application out of time, the court will have regard to the merits of the application, the history of the proceedings, the conduct of the parties and the reason an extension is required, the nature of the litigation and the consequences for the grant or refusal of the extension application.[65]
4. The principles set out at [35] ‑ [36] above in relation to appeals against decisions of a discretionary nature apply in relation to grounds 2, 5, 6, and 7 also. To the extent that Mr Ginbey alleges bias in these grounds, the principles discussed at [37] ‑ [40] are also relevant.
5. We turn, now, to consider the particular grounds of appeal relating to the learned Master's grant of leave to the Bank to bring the Summary Judgment Application out of time.

The learned Master erred in fact and law by granting the Bank an extension of time in which to file its Summary Judgment Application when 'no realistic submission and/or evidence had been made by or submitted by the [Bank] to support the late filing of its Application given the vast resources of the [Bank] and showing bias toward [the Bank]' (ground 2)

1. In support of its application for leave to bring the Summary Judgment Application out of time, the Bank relied on the affidavit of Ms Guy sworn 14 August 2019. We summarised the content of that affidavit at [14].
2. That the learned Master was prepared to make the order for leave to bring the Summary Judgment Application out of time indicates that he accepted the Bank's evidence explaining the delay, and having regard to all of the circumstances, including the merits of the Summary Judgment Application, considered that an extension of time in which to bring the Summary Judgment Application was warranted.
3. Mr Ginbey submitted that Ms Guy failed to explain what the claimed 'internal loan originating review' [sic] required or to explain to the court why an organisation the size of the Bank could not comply with the time limits set out in O 14 r 1 RSC.[66] The thrust of this ground of appeal thus appears to be that the learned Master erred in concluding that the Bank had demonstrated a proper basis for the exercise of his discretion to grant leave.
4. Ground 2 has no merit. The Bank provided an explanation for the delay in filing the Summary Judgment Application, in Ms Guy's affidavit of 14 August 2019. The Bank's reasons for the delay were not the subject of submissions at the Hearing. While Ms Guy did not explain the nature of the 'internal loan origination review' to which she referred in her affidavit, Mr Ginbey did not seek clarification of what that review was, nor did he challenge that explanation during the Hearing. At no stage during the Hearing did Mr Ginbey submit that the Bank's explanation should be rejected, or otherwise indicate any opposition to the grant of leave to file out of time.
5. The position before the Master, therefore, was that an explanation for the delay was provided by the Bank, on affidavit; Mr Ginbey had raised no opposition to the grant of leave to file out of time, or to the adequacy of the explanation for the delay; the delay was relatively short; and the learned Master had concluded that the Summary Judgment Application had merit, because the Bank's claims to relief were supported by the documents it had filed, and Mr Ginbey had not identified any defence to the Action.
6. Mr Ginbey has not demonstrated any express error by the learned Master in the exercise of his discretion to grant leave to the Bank to bring the Summary Judgment Application out of time. Nor has Mr Ginbey demonstrated that in these circumstances it was unreasonable or plainly unjust for the learned Master to grant leave to the Bank to bring the Summary Judgment Application out of time, so as to permit the inference that his Honour failed to properly exercise his discretion.
7. In so far as this ground of appeal also alleges bias on the part of the learned Master, Mr Ginbey did not suggest any actual basis. Mr Ginbey submitted that in the course of the Hearing, the learned Master used terms such as 'kicking a can down the road' to justify his decision to allow the Bank's application for an extension of the time in which to bring its Summary Judgment Application and to make the Orders.[67] Perhaps Mr Ginbey understood that observation to suggest that the learned Master had prejudged the Summary Judgment Application. If that is the basis for a claim of apprehended bias on the part of the Master, that claim has no merit. In the course of Mr Ginbey's submissions, the learned Master observed that 'just kicking the can down the road just isn't going to work'[68] to summarise his conclusion that, in circumstances where Mr Ginbey had not shown any basis for a defence to the Action, there was no utility in merely postponing the determination of the Summary Judgment Application by granting the Adjournment Application. The learned Master's observation provided no basis on which a fair minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the question he was required to decide.
8. Mr Ginbey's claim of bias otherwise appears to amount to nothing more than an assertion that the learned Master's decision to permit the Bank leave to file out of time, and to grant the Summary Judgment Application, was wrong. Even if the learned Master erred in either respect, such an error does not establish actual or ostensible bias.[69]

The learned Master erred in fact and law in granting the Bank's application for an extension of time, by relying on the affidavit of Ms Guy, who is a solicitor, who had 'no personal knowledge of why the [Bank] delayed making [the Summary Judgment Application]' (ground 5)

1. This ground of appeal has no merit.
2. Whether or not the Bank's application for leave to file out of time is regarded as part of, or discrete from, its Summary Judgment Application, the Bank was entitled to rely on affidavits containing statements of information and belief in support of that application. Order 14 r 2(2) RSC permits an affidavit filed in support of an application for summary judgment to contain statements of information or belief with the sources and grounds thereof. Similarly, O 37 r 6(2) RSC permits an affidavit to contain statements of information and belief in certain circumstances, including where the affidavit is relied on in support of an interlocutory application. If the affidavit contains statements of information or belief, the sources or grounds of that information or belief must be set out.[70]
3. To the extent that Ms Guy's affidavit included statements of her information and belief, she complied with the requirement to set out the source of the information to which she deposed.
4. There is therefore no basis for Mr Ginbey's objection to Ms Guy's affidavit on the basis that she had no personal knowledge of the facts relevant to the Bank's delay, and instead referred to her information and belief.

The learned Master erred in fact and law for failing to give reasons for his conclusion that the Bank's application for an extension of time was justified on the basis of any affidavit filed by the Bank (ground 6)

1. Mr Ginbey submitted that the learned Master 'fail[ed] to provide any explanation for accepting the delay in [the Bank] bring[ing] the [Summary Judgment Application]'.[71]
2. In Browne v Browne[72] this court referred to the following principles concerning the evaluation of the adequacy of reasons:

(1) Reasons for decision need not be lengthy or elaborate.

(2) Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.

(3) It is certainly not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails. Considering that party's submissions is an aspect of what procedural fairness requires.

(4) In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's consideration.

1. In any case where the adequacy of reasons is challenged, the critical question is whether the essential path of reasoning to the impugned conclusion is disclosed with sufficient detail and in sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.[73]
2. The learned Master stated that he would extend the time to bring the Summary Judgment Application. He did not, at that precise point in the Reasons, explain the basis for that conclusion. However, the Reasons must be read as a whole, bearing in mind that they were delivered extemporaneously, and their adequacy must be assessed in the context of the evidence, issues and submissions in the case.[74]
3. In this case, as we have already pointed out, the position before the learned Master at the Hearing was that an explanation for the delay in filing the Summary Judgment Application was provided by the Bank, on affidavit. Mr Ginbey had raised no opposition to the grant of leave to file out of time. The delay was relatively short. And the learned Master concluded that the Summary Judgment Application had merit, in that Mr Ginbey had not identified any defence to the Action. When the Reasons are read as a whole and in that context, there is no room for doubt about the learned Master's reasons for granting the Bank leave to file out of time: the learned Master regarded all of these factors as clearly supporting the exercise of discretion to grant leave to the Bank to file the Summary Judgment Application out of time. That being the case, ground 6 should be dismissed.

The learned Master erred in law by relying on the affidavits of Mr Hanrahan and Ms Guy which were both filed outside the 21 day period for the filing of the Summary Judgment Application (ground 7)

1. There is no merit in this ground. The court may grant leave to bring a summary judgment application outside the period prescribed in O 14 r 1(1), or extend the time within which a person is authorised to apply for summary judgment.[75] The court may do so, even though the application is not made until after the expiration of that period.[76]
2. The Bank sought and was granted leave to file the Summary Judgment Application out of time. The Summary Judgment Application comprised the chamber summons and the affidavits filed in support of that Application, including the affidavits of Mr Hanrahan and Ms Guy, which were each filed on the same day as the Application. There is no basis for Mr Ginbey to object to the court's acceptance of, and reliance on, those affidavits.

Ground 1: The learned Master erred in fact and law 'in finding that the [Bank's] claim against [Mr Ginbey] was genuine or established for the purposes of making the Orders'

1. The relevant principles governing the exercise of the court's power to grant summary judgement are well established.[77] Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care. Summary judgment should be awarded only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour.[78]
2. In bringing the Summary Judgment Application, the Bank bore the legal onus of establishing that there was no defence to the Action and no real question to be tried. Once the Bank satisfied the requirements of O 14 r 1 RSC, however, it had a prima facie right to summary judgment, and the evidentiary burden fell on Mr Ginbey to satisfy the court that there was an issue or question in dispute which ought to be tried, or that there ought, for some other reason, be a trial of the Action.[79] To do so, it was necessary for Mr Ginbey to provide sufficient details to demonstrate the existence of an arguable defence or triable issue.[80]
3. Ground 1 appears to allege an error by the learned Master in concluding that the Bank had established that there was no defence to the Action and no issue or question to be tried. Mr Ginbey submitted that the learned Master failed to consider the terms of the Mortgage but rather simply accepted the terms.[81] It was not entirely clear what Mr Ginbey meant by that submission. Further, as counsel for the Bank submitted, Mr Ginbey failed to articulate what terms of the Mortgage were relevant to his defence, and how particular terms, if considered by the learned Master, would have affected his decision to grant judgment for the Bank.[82]
4. In so far as Mr Ginbey contended that the learned Master failed to consider the terms of the Mortgage, that submission must be rejected. The learned Master made clear in the Reasons that he had looked at the documents which had been lodged by the Bank, which included copies of the documents on which the Bank relied (including the Loan Agreement and the Mortgage), and that he regarded the application as 'in order'.
5. In so far as ground 1 contended that the learned Master erred in concluding that the Bank had established that Mr Ginbey did not have a defence to the Action and that there was no issue or question to be tried, so that the Summary Judgment Application should be granted, no such error has been shown.
6. In this case, Mr Ginbey did not dispute the existence and terms of the Loan Agreement or the Mortgage annexed to Mr Hanrahan's affidavit, the fact that money was owed, or the fact that the Ginbeys had defaulted on their obligations and failed to rectify that default. The UTC made plain what would constitute a default; outlined the Bank's obligation to give the Ginbeys notice of the default and the period of time to remedy that default; and expressly stated that in the event of a default 'we [that is, the Bank] may decide that all money owing by you [that is, the Ginbeys] under the [Loan Agreement] is due and payable immediately', that 'we may sue you for payment of the money you owe us', and that 'we may exercise rights under the Security [that is, the Mortgage] including our right to sell the [Properties]'.[83] The Common Provisions which formed part of the terms of the Mortgage expressly stated when a mortgagor would be in default, what could happen in the event of a default, including the Bank's obligation to give the Ginbeys a notice of default before choosing to enforce the Mortgage, and expressly specified that if the default was not rectified in the period specified in the notice of default, the Bank was entitled to decide that the amount owing was due and payable immediately, and to take possession of the Properties.[84] The provisions of the Loan Agreement, and the Mortgage, thus supported the Bank's claim for the payment of the total amount owing, plus interest and costs, and an order for possession of the Properties.
7. Mr Ginbey did not identify any basis for a defence to the Bank's claim that it was entitled to exercise its rights under the Loan Agreement and Mortgage to obtain possession of the Properties, and to recover all of the money owed plus interest and its costs. Nor did he identify any other reason why the Action should proceed to trial.
8. Mr Ginbey has not demonstrated any error in the learned Master's conclusion that a proper basis for granting summary judgment had been established, and that the Summary Judgment Application should be granted.
9. Ground 1 should therefore be dismissed.
10. As none of the grounds of appeal have merit, the appeal must be dismissed.

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

[1] Chamber Summons for Summary Judgment pursuant to O 14 r 1 filed 14 August 2019, Blue Appeal Book (BAB) 7 - 8.

[3] Hunt v Knabe (No. 2) (1992) 8 WAR 96, 109; Briggs v Glentham Pty Ltd (1992) 8 WAR 339.

[4] Supreme Court Act 1935 (WA), s 58(1)(b), s 58(2).

[5] Cf Supreme Court Act 1935 (WA), s 60(1).

[6] Affidavit of Linda Maria Pearson sworn 16 August 2019; Affidavit of Linda Maria Pearson sworn 14 August 2019, Green Appeal Book (GAB) 153 - 156; 157 - 163.

[7] Affidavit of Cassandra Michelle Guy sworn 14 August 2019, GAB 149.

[8] Affidavit of Cassandra Michelle Guy sworn 29 August 2019, GAB 164.

[9] Initially, the terms of the Loan Agreement referred to three properties provided as security for the loan, but in 2016, one of those properties was released as a security: Affidavit of Mark Hanrahan, GAB 28, 31.

[10] Chamber Summons for Summary Judgment pursuant to O 14 r 1 RSC, BAB 7.

[11] Affidavit of Cassandra Michelle Guy sworn 14 August 2019 [4], GAB 150.

[12] Affidavit of Cassandra Michelle Guy sworn 14 August 2019 [8], GAB 150.

[13] Affidavit of Cassandra Michelle Guy sworn 14 August 2019 [9], GAB 150.

[14] Chamber Summons for Summary Judgment pursuant to O 14 r 1, filed 14 August 2019, BAB 7.

[15] Order of Acting Master Strk made 29 August 2019, BAB 10.

[17] ts 12, 14, 22 October 2019, GAB 5, 7.

[32] Reasons, ts 2, 22 October 2019, BAB 4.

[33] Reasons, ts 2, 22 October 2019, BAB 4.

[34] Reasons, ts 2, 22 October 2019, BAB 4.

[35] Reasons, ts 3, 22 October 2019, BAB 5.

[36] Reasons, ts 3, 22 October 2019, BAB 5.

[37] Reasons, ts 3, 22 October 2019, BAB 5.

[38] Reasons, ts 3, 22 October 2019, BAB 5.

[39] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt and McTiernan JJ).

[40] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177.

[41] RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47; (2012) 247 CLR 304 [42] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

[42] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 [53] ‑ [54] (Nettle and Gordon JJ); Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 348 [23] (Gleeson CJ, McHugh, Gummow and Hayne JJ), [182] (Callinan J, agreeing).

[43] CNY17 [54] (Nettle and Gordon JJ); Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476, 490 [25] (Gleeson CJ).

[44] Ogbonna v CTI Logistics Ltd [2021] WASCA 25 [24].

[45] CNY17 [17] - [20] (Kiefel CJ and Gageler J), [56] (Nettle and Gordon JJ), [132] (Edelman J).

[46] CNY17 [56] (Nettle and Gordon JJ); Ogbonna [23].

[47] Appellant's submissions [14], White Appeal Book (WAB) 9.

[48] Appellant's submissions [17], WAB 9.

[49] Cf Cornell v National Australia Bank Ltd (No 3) [2010] WASCA 42 [20] (Buss JA, Newnes JA and Jenkins J agreeing).

[50] RSC O 14 r 3(1); see also Westpac Banking Corp Ltd v McLean [2011] WASC 2 [41] ‑ [42] (K Martin J).

[51] Appellant's submissions [15], WAB 9.

[52] Appellant's submissions [16], WAB 9.

[53] See also Transfer of Land Act 1893 (WA), s 106 - 108, s 111.

[54] Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [98], [102], [112] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[57] UTC section 2, GAB 56.

[61] Common Provisions cl A.1, GAB 136.

[62] Common Provisions cl A2.2, GAB 136.

[64] See, for example, Westpac Banking Corporation v Anderson [2017] WASC 106 [38].

[65] See, for example, Bank of Western Australia v Stein [2005] WASC 43 [53].

[66] Appellant's submissions [5], WAB 7.

[67] Appellant's submissions [13], WAB 9.

[71] Appellant's submissions [4], WAB 7.

[72] Browne v Browne [2019] WASCA 1 [80]; Pave Wealth Services Pty Ltd v Danielle Jones as executrix of the late Michael Frederick Jones [2021] WASCA 7 [121].

[75] RSC O 14 r 1(1); see also O 3 r 5(1).

[77] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24]; see also Ogbonna v Qantas Airways Limited [2019] WASCA 146 [51].

[78] Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [54] ‑ [55]; Fels v Rural Bank [2020] WASCA 151 [27].

[79] Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110; Bankwest (A Division of the Commonwealth Bank of Australia) v Mann [2015] WASC 187 [46].

[80] RSC O 14 r 3(1); Moscow Narodny Bank Ltd (113), citing Wallingford v Mutual Society (1880) 5 App Cas 685, 704, referred to in Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [54].

[81] Appellant's submissions [12], WAB 8 - 9.

[82] Bank's submissions [11], WAB 15.

[84] Common Provisions cl A22.5, GAB 142.