COMMONWEALTH BANK OF AUSTRALIA -v- SHADA PTY LTD [2025] WASC 200 (23 May 2025)

CBA also filed submissions on 11 March 2025 (CBA Submissions).

1. Ms Clark filed a defence on 30 October 2024 (Defence). She also filed four affidavits, filed on 30 October 2024 (Clark 30.10.24 Affidavit), 26 February 2025 (Clark 26.2.25 Affidavit), 26 February 2025 (unsworn) (Clark 26.2.25 Affidavit) and 24 March 2005 (Clark 24.3.25 Affidavit). She also filed submissions on 24 March 2025 (Clark Submissions). I have reviewed all this material and took it into account in determining the Application.
2. After hearing from counsel for the CBA, I advised counsel that I was satisfied that CBA was entitled to summary judgment, and that I would publish my reasons for coming to this conclusion. My reasons for doing so follow.
3. I invited counsel for CBA to file a minute of proposed orders with up to date figures and made orders in terms of that minute (see [61]).
4. In conducting the hearing and determining the Application, I was, and am, mindful that Ms Clark is a litigant in person. As a litigant in person, she is entitled to some leniency in relation to compliance with the court rules.[3] The court is required to approach the documents in which she articulates her case with some flexibility.[4] The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which she sets out her case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[5] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[6]
5. One 'abiding difficulty' faced by the court is 'the tension between the duty of a ... judge to ensure a fair and just trial and the requirement that the court maintain a position of neutrality and impartiality as between the parties'.[7] The court also needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing.[8] The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[9]

2. Should CBA be granted leave to commence the Application out of time?

1. As mentioned, the Application was commenced on 7 February 2025. Ms Clark entered her appearance on 15 October 2024, so the Application was required to have been commenced within 21 days of that that, being 5 November 2024. However, the court may grant an applicant leave to commence an application for summary judgment after that date.[10]
2. The policy rationale for the time limit is to ensure that summary judgment applications are brought at an early stage of proceedings before unnecessary expense has been incurred.[11] The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties, and may be exercised in favour of an applicant where strict compliance with the rules will work an injustice upon the applicant.[12] In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant and refusal of the application for the extension of time.[13] Ordinarily, the plaintiff should explain the delay and show that it was justifiable in the circumstances.[14]
3. The prospects of the application are also relevant. To proceed to trial, with the expense that that may incur, when there is no defence to an action, would of itself be contrary to modern principles of case management. Thus, where an application has some merit, the requirements for leave will not ordinarily be demanding.[15]
4. The Strack Affidavit is to the following effect:

(a) between when Ms Clark entered her appearance and the end of January 2025, the parties were engaged in conferral and without prejudice negotiations;

(b) CBA has a moratorium on processing mortgage enforcement actions between 14 December 2024 and 2 January 2025; and

(c ) case management orders were made on 5 December 2024, which included an order that CBA file and serve any application for summary judgment, and leave to do so, by 10 February 2025.

1. In my assessment, the Application was still brought at an early stage of proceedings, before either party undertook any interlocutory step or incurred any real expense. Ms Clark did not file any evidence identifying any specific prejudice to her due to the delay. The delay of about 3 months is adequately explained by the Christmas break and the fact that the parties were engaged in settlement discussions. The latter was obviously relevant to the decision of whether or not to seek summary judgment. Delays in bringing a summary judgment application whilst parties are negotiating to resolve the action should not weigh heavily against the grant of leave to bring the application in the event of the failure of those negotiations. A contrary view may lead to applications for summary judgment being commenced unnecessarily, merely to hold this option open as of right.[16]
2. Finally the prospects of the Application, as will be seen, are compelling. A grant of leave is appropriate.

1. I find the following facts established from the affidavits relied on by CBA.
2. Ms Clark is the sole director and shareholder of Shada.[17] She is also the registered proprietor of the Property.[18]
3. The Mortgage was entered into on or about 11 October 2007. What Mr Thomas deposes to be a true copy of the Mortgage and incorporated Memorandum of Common Provisions (MCP) is annexure MT4 to the Thomas Affidavit.[19] The Mortgage on its face appears to have been executed by Ms Clark.[20] The relevant terms are to the effect that:

(a) the 'Amount Owing' under the Mortgage is all money that Ms Clark owed CBA, or may owe CBA in the future, under a 'Secured Agreement' (cl A1);

(b) a 'Secured Agreement' is any agreement between CBA and Ms Clark, including a guarantee, in which she undertook to pay or repay money to CBA, which she acknowledge in writing was an agreement to which the Mortgage extended (cl 1A);

(c) Ms Clark must pay CBA any part of the Amount Owing at the time agreed, or if no time has been agreed, on demand (cl A4.1);

(d) Ms Clark would be in default if she did not pay any amount owing under the Guarantee when it was due (cl A21(a));

(e) the rights and remedies of CBA under the Mortgage are independent of those that CBA has under any other security or law, and those rights may be exercised by CBA even if it obtains judgment against Ms Clark (cl A27.2); and

(f) where the Mortgage becomes merged in a court order, Ms Clark must pay interest on the amount due under the Mortgage as a separate obligation (cl B3).

1. The Loan Agreement was entered into on or about 29 March 2010. What Mr Thomas deposes to be a true copy of the Loan Agreement, including the terms and conditions incorporated (Terms and Conditions), is annexure MT3 to the Thomas Affidavit.[21] The Loan Agreement on its face appears to have been executed by an officer of CBA and by Ms Clark on behalf of Shada.[22] The relevant terms are:

(a) the amount lent was $522,000 (Loan Amount);

(b) the interest rate was variable;

(c) the loan repayments were interest only for the first five years, then monthly payments of principal and interest over a 25 year period;

(d) the security for the loan included a registered mortgage over the Property and a guarantee by Ms Clark; and

(e) Shada would be in default if it did not pay any of amount owing under the Loan Agreement when it was due.

1. The Loan Amount was advanced by CBA to Shada on or about 29 March 2010.[23] This evidence squarely addresses the concern raised by Ms Clark at the commencement of the hearing.
2. The Guarantee was entered into on or about 9 April 2010. What Mr Thomas deposes to be a true copy of the Guarantee is annexure MT5 to the Thomas Affidavit.[24] The Guarantee on its face appears to have been signed by Ms Clark.[25] In the 'Details' section, the 'Supporting Security' for the Guarantee is:[26]

Registered mortgage over the property situated at 36B Fairlight St MOSMAN PARK by Susan Kay Clark.

Under the signature block which Ms Clark appears to have signed, the following appears: [27]

and by so signing you, the Guarantor, acknowledge that any Supporting Security listed against your name in the Details extends to cover this guarantee.

1. The relevant terms of the Guarantee are to the effect that:

(a) Ms Clark guaranteed that Shada would pay the amounts owing to CBA under the Loan Agreement (cl 1.1);

(b) Ms Clark agreed to pay to CBA on request of any money that Shada did not pay when due in accordance with the Loan Agreement (cl 1.2);

(c) Ms Clark must pay CBA's reasonable costs of enforcing the Guarantee (cl 5.2); and

(d) CBA's rights and remedies under the Guarantee can still be exercised if it obtains a court order or judgment against Ms Clark (cl 14.4).

1. As at 17 June 2024, Shada had failed to pay the sum of $131,702.23 to CBA when it was due. Mr Thomas deposes that, by that failure, Shada was in default under the Loan Agreement and Ms Clark became liable to pay that amount pursuant to the Guarantee and Mortgage.[28] As a matter of law, I agree.
2. By a notice of default dated 19 June 2024 (Notice) CBA gave notice to Shada and Ms Clark that each was in default and that if the default was not rectified within the time specified in the Notice, the whole of the amount owing pursuant to the Loan Agreement and the Guarantee would become immediately due and payable, and CBA would commence enforcement proceedings.[29]
3. Neither Shada nor Ms Clark rectified the default within the time specified in the Notice.[30]
4. As at the date on which the Thomas Affidavit was sworn, 4 February 2025, the amount owing under the Loan Agreement, Guarantee and Mortgage was $526,286.41. Interest was accruing on this amount at the rate of 8.8% per annum, which is $126.89 per day.[31]

4. Has CBA established a prima facie right to summary judgment?

1. The principles by which an application for summary judgment is to be determined were recently summarised by the Court of Appeal in Kounis in the following terms:[32]

Summary judgment is a procedure designed to deal with cases that are not fit for trial. The power to determine a proceeding summarily must be attended with great care - sometimes expressed in terms of 'exceptional caution'. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if they went to trial, that summary judgment ought properly to be granted. The claimant carries the burden of persuading the court that the claim is a good one, that there is no defence to it, that leave to defend should not be granted and that judgment should be given for the claimant. If the claimant can establish a prima facie right to summary judgment, the burden then shifts to the defendant to satisfy the court why judgment should not be given against him or her. In this respect the defendant has an evidentiary burden. However, the overall burden of persuasion remains on the party moving for summary judgment.

1. I find that the preconditions to the exercise of the court's power in RSC O 14 r 1(1) have been satisfied:

(a) the action is one to which RSC O 14 applies;

(b) CBA has served a statement of claim on Ms Clark (which was endorsed on the writ); and

(c) Ms Clark has entered an appearance.

1. Further, as required by RSC O 14 r 2(1), I am satisfied that CBA has filed affidavits verifying the facts on which the claim is based, as set out in Part 3. Mr Thomas also deposes that he believes that Ms Clark does not have a defence to the claim by CBA.[33]
2. Accordingly, CBA has satisfied all the requirements of RSC O 14 so as to give it a prima facie right to summary judgment.

5. Does Ms Clark have an arguable defence to the claim?

1. The burden then shifts to Ms Clark to satisfy the court that judgment should not be given against her. This is an evidentiary burden, the overall legal burden of persuasion remaining on CBA as the applicant.[34] Specifically, Ms Clark must satisfy the court 'with respect to the claim ... that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of that claim'.[35] Ms Clark does not have to show a defence on the balance of probabilities, but she must at least show cause why there is an arguable defence.[36]
2. An application for summary judgment is to be determined on the basis that the version of the facts put forward by Ms Clark assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action.[37] The court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent.[38] If after argument there remains real uncertainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused.[39]
3. Ms Clark appears to raise four potential defences.
4. The first assertion is that CBA does not claim to be the 'true lender of the money'.[40] However, as mentioned ([22]) Mr Thomas has given evidence that CBA advanced the Loan Amount to Shada.[41] Ms Clark did not adduce any evidence to the effect that CBA did not in fact advance the money to Shada, so as to give rise to a factual issue warranting a trial of the action. This assertion does not raise an arguable defence.
5. The second assertion, as I understand it, is that CBA cannot enforce the agreements the subject of this action as it has not complied with the National Credit Code which applies to the agreements.[42]
6. The National Credit Code is schedule 1 to the National Credit Protection Act 2009 (C'th). By the Credit (Commonwealth Powers) Act 2010 (WA) s 4 the National Credit Code was adopted as a law of Western Australia, and continues to be.
7. The National Credit Code relevantly applies to:

(a) credit contracts that are entered into by a debtor who is a natural person or strata corporation;[43]

(b) guarantees that guarantee obligation under a credit contract to which the National Credit Code applies; [44] and

(c) mortgages that secure obligations under a credit contract or guarantee to which the National Credit Code applies.[45]

1. CBA submits that, as Shada is not a natural person or a strata corporation, the National Credit Code does not apply to the Loan Agreement, the Guarantee or the Mortgage.
2. Ms Clark's argument is that as the Mortgage was initially entered into for a home loan by her, a natural person, it is one to which the National Credit Code applies. She says Part B of the MCP 'clearly states' that the Mortgage is excluded from any loan agreement or guarantee 'under the Credit Act'.[46]
3. At the top of the page on which Ms Clark executed the Loan Agreement, the following appears:[47]

Your acceptance: 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 security at item K includes the Mortgage and the Guarantee.[48] These provisions, in my view, make it clear that Ms Clark knew that the Mortgage was being used as security for the obligations under the Loan Agreement, even if not subject to the National Credit Code, and agreed to that.[49]

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. I have mentioned the definition of 'Secured Agreement' at [20]. In full it is defined as follows:[51]

• an agreement between one or more of you and us (including a guarantee given by one or more of you) whenever made, under which you undertake to pay or repay us money, and which you acknowledge in writing to be an agreement to which this mortgage extends; and
• any such agreement as varied.

1. In my view, the combined effect of these provisions is that the Mortgage can apply to both a secured amount to which the National Credit Code applies and one to which it does not. If, and only if, National Credit Code does not apply, then the terms in Part B take effect.
2. I have then set out the relevant provisions of the Mortgage at [20].
3. In my view, Ms Clark does not have an arguable defence to CBA's claim based on the fact that the Mortgage was initially entered into by her to secure a loan made to her personally, one to which the National Credit Code applies. She agreed to the Mortgage being used to secure her obligations under the Guarantee. This was an express condition of both the Loan Agreement ([21]) and the Guarantee ([23]).
4. CBA further submits that, even if the Loan Agreement, the Guarantee or the Mortgage were regulated by the National Credit Code, Ms Clark has not given any evidence of any issue arising under the National Credit Code that would give rise to an arguable defence to its claim. I agree.
5. The third assertion is that the Mortgage cannot be enforced as CBA has not complied with relevant provisions of the Transfer of Land Act 1893 (WA) (TLA). It is not clear to me which provision has not been complied with. TLA s 105 is mentioned. However, that section simply allows for a registered proprietor of land to mortgage it, which mortgage must be in the prescribed form. There is no suggestion that the Mortgage was not in the prescribed form; in any event it was in fact registered. Land charged with the payment of an annuity may also be registered, but the present case does not concern an annuity. TLA s 58 is mentioned, however, it has no application as the Mortgage has been registered. TLA s 68 is also mentioned. However, as the Mortgage has been registered, with the consent of Ms Clark, it can be used to 'defeat' her title to the Property. TLA s 3 is mentioned, but it does not affect the conclusions as to the operation of other provisions of the TLA which I have just mentioned.
6. The fourth assertion is that the debt the subject of the action cannot be enforced as it has not been registered on the PPSR, that is, the Personal Property Security Register (PPSR).
7. The PPSR is a register of security interests in property other than land.[52] This regime has no application to the enforcement of the Loan Agreement, the Guarantee or the Mortgage which all relate to the Property, that is, land.
8. In summary, in my view, Ms Clark has not put before the court any facts, nor made any submissions, which could give rise to an arguable defence to the claim of CBA.

6. Is there 'some other reason' not to award summary judgment in relation to either claim?

1. On an application pursuant to RSC O 14, the court may also decline to award summary judgment if the defendant satisfies the court 'that there ought for some other reason to be a trial of that claim'.[53] In Miles v Bull, Megarry J said with reference to this phrase:[54]

If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the court that there are circumstances that ought to be investigated, then I think that those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff.

This passage has been endorsed in this court.[55]

1. In relation to this ground, in Mavaddat v HSBC Bank Australia [No 2] Mitchell JA observed:[56]

The relevant part of O 14 requires that there be some other reason for there to be a trial of the claim or part thereof. It does not merely require that there be some other reason why judgment should not be immediately entered or enforced... It would be a waste of the resources of the parties and the court to require the trial of a claim which is certain to succeed.

1. Ms Clark objects to summary judgment being granted until she has complete disclosure or discovery. However, in the evidence which she filed and the submissions which she made, she did not identify any information which such discovery or disclosure could potentially bring to light which may lead her to be able to raise an arguable defence. In my view, there is no 'other reason' why there ought to be a trial of CBA's claim.

1. The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.[57] It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted.[58] The overall legal burden of persuasion to establish that summary judgment is warranted is on CBA as the applicant for summary judgment.[59] CBA has established that Ms Clark has no defence to its claim;[60] the matters she raises by way of defence are so clearly untenable that they cannot possibly succeed.[61]
2. I have the high degree of certainty required as to the ultimate outcome of the action to make it appropriate to order summary judgment in favour of CBA in relation to its claim against Ms Clark.
3. CBA seeks its costs pursuant to the Guarantee. In this regard, cl A22.8 of the Guarantee provides:

You must pay us our reasonable enforcement expenses reasonably incurred or spent by us in exercising our rights in relation to your default.

1. Parties to litigation may also be parties to a contract which contains plain and unambiguous provisions allowing for costs to be paid on a certain basis. The court is not bound to give effect to the contract and retains its discretion. However, the court should ordinarily exercise its discretion in a manner consistent with the contractual provisions.[62]
2. In this case, I am satisfied that it is appropriate to exercise my discretion as to costs in a manner consistent with cl A22.8. The order should allow for the costs to be readily the subject of the taxation process by the court, as opposed to disputes being determined as a matter of contract law.[63] Clause A22.8 is in substance an order for costs taxed as between a law practice and its client.[64] The clause is not framed in terms that would justify an order for indemnity costs (all the costs incurred by it except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions, it is completely indemnified for its costs). The onus remains on CBA to satisfy the taxing officer that the costs claimed are necessary and reasonable, as opposed to an order for indemnity costs where it is for the paying party to satisfy the taxing officer that the costs were of an unreasonable amount or were unreasonably incurred.[65]
3. For these reasons, I made the following orders:

1. The Plaintiff 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 Plaintiff against the Second Defendant in the following terms:

(a) The Second Defendant pay to the Plaintiff 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.
>
> (b) Within 28 days of the date of service of this order the Second Defendant give possession to the Plaintiff of all that piece of land situated at 36B Fairlight Street, Mosman Park in the State of Western Australia more particularly described as:

Lot 1 on Strata Plan 2228 and being the whole of the land comprised in Certificate of Title volume 1373 folio 758.

(c) Pursuant to clause A22.8 of the mortgage that is the subject of this Action, the Second Defendant pay the Plaintiff'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.

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

[1] Rules of the Supreme Court 1971 (WA) (RSC) O 14 r 1(1).

[2] Defendi v Szigligeti [2019] WASCA 115 [47] (judgment of the court).

[3] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).

[4] Zaghloul v Bayly [2021] WASCA 125 [82] (judgment of the court) (Zaghloul); Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P with whom Hope & Samuels JJA agreed).

[5] Sethi v Bhavsar [2020] WASCA 52 (Sethi) [27] (reasons of the court).

[6] Neil v Nott [1994] HCA 23 [5]; [1994] HCA 23; (1994) 68 ALJR 509, 510; [1994] HCA 23; (1994) 121 ALR 148, 150 (judgment of the court); Kounis v Westpac Banking Corporation [2023] WASCA 185 [11] (reasons of the court) (Kounis); Sethi [27].

[7] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 (Zerjavic) [74] (judgment of the court).

[8] Nobarani v Mariconte [2018] HCA 36 [47] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).

[11] Colonga Investments Pty Ltd as trustee for the P and D Panizza Family Trust) v Caranna [2023] WASC 368 [25] - [26] (Archer J) (Colonga); Diedler v Borowiec [2021] WASC 394 [59] (Strk AM) (Diedler); Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [40] (Tottle J).

[12] Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459 (McHugh J) (Gallo); Colonga [27]; Commonwealth Bank of Australia (ACN 123 123 124) v Deighton [2024] WASC 410 [16] (Russell M).

[15] Diedler [62]; Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260 [48] (Newnes JA).

[16] Johnson v Hallam [2015] WASC 149 [12] (Gething AM).

[19] Thomas Affidavit, par 17, pages 121 - 141.

[21] Thomas Affidavit, par 16, pages 13 - 120.

[24] Thomas Affidavit, par 18, pages 142 - 151.

[29] Thomas Affidavit, par 10; Fielding Affidavit, par 2, attachment ELF1.

[36] Kounis [9]; Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27 [4] (reasons of the court).

[37] Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 608 (Mason CJ, Deane & Dawson JJ); Pisano v South Metropolitan Health Service [2023] WASCA 80 [52] (judgment of the court) (Pisano); RHG Mortgage Corporation Ltd v Schafer [2014] WASC 297 [28] (Chaney J).

[38] Pisano [52]; Manton Enterprises Pty Ltd (As Trustee for GPK No 2 Trust) v LT. Market St Pty Ltd [2021] WASC 4 [23] (Strk AM) (Manton); Perpetual Trustee Co Ltd v Nikoloff [2020] WASC 389 [14] (Strk AM) (Perpetual); Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28] (Newnes M) (Ansearch).

[39] Ansearch [28]; Manton [23] Stevens v Wright [2021] WASC 36 [49] (Strk AM); Bozic v Rand Mining Limited [2019] WASC 73 [20] (Whitby AM).

[40] Clark 30.10.24 Affidavit, par 3(a); Clark 26.2.25 Affidavit, par 3.

[42] Defence, pars 4 - 6; Clark 26.2.25 Affidavit, par 2.

[49] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; (2004) 211 ALR 342; (2004) 79 ALJR 129; (2005) Aust Contract R 90-204; [2004] HCA 52 [57] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); George 218 Pty Ltd v Bank of Queensland Ltd (No 2) [2016] WASCA 182 [90] (reasons of the court).

[52] Personal Property Securities Act 2009 (C'th) s 10 (definition of 'personal property').

[54] Miles v Bull [1969] 1 QB 258, 265 - 266 (Megarry J).

[55] Rhodes v De Castro [2022] WASC 214 at [28] (Hill J); HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 [95] (Gething AM); Helmers v Como [2014] WASC 394 [59] ‑ [61] (Gething AM).

[56] Mavaddat v HSBC Bank Australia [No 2] [2016] WASCA 94 [103] (Mitchell JA, with whom Newnes JA agreed) (references omitted) (Mavaddat CA).

[57] Zaghloul [116]; Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24] (judgment of the court) (Sutton).

[58] Nikoloff v Perpetual Trustee Company Limited [No 2] [2022] WASCA 16 [44] (judgment of the court); Zaghloul [116]; Sutton [24].

[59] Morgan v Pallister [2004] WASC 188 [4] (Pullin J); National Australia Bank Limited v Jackson [2025] WASC 8 [25] (Russell M).

[60] RSC O 14 r 1(1); Mavaddat CA [100].

[61] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 ‑ 130 (Barwick CJ); Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24] (French CJ & Gummow J), [54] ‑ [57] (Hayne, Crennan, Kiefel & Bell JJ); Lee v Lawfirst Pty Ltd [2023] WASCA 166 [80] (judgment of the court).

[62] Bank of Queensland Limited v Fahy [2025] WASC 180 [62] (Gething J) (Fahy); Manton Enterprises Pty Ltd (As Trustee for GPK No 2 Trust) v Lt. Market St Pty Ltd [2021] WASC 4 (S) [15] (Strk AM); Boon v Burt [2020] WASC 64 (S) [4] (Curthoys J); Rumball v Mortimore [2000] WASC 126 [15] - [17] (Owen J).

[64] Legal Profession (Supreme and District Court) (Contentious Business) Determination 2024 (WA), item 14.

[65] See generally: Ellis v East Metropolitan Health Service [2018] WADC 36 (S) [23] - [37] (Gething DCJ).