(These reasons were delivered orally on 12 August 2025 and have been edited from the court's record to include references, headings and to correct matters of grammar and expression.
[2]
Paragraphs 12, 13, 48 to 51 of these reasons, as published, have been included in addition to the oral reasons and relate to the defendant's attendance at the hearing after delivery of the oral reasons, and to the final orders made.)
[3]
The defendant is the registered proprietor of the land and property in Ferndale, Western Australia, described as Lot 5 on Strata Plan 11458 and being the whole of the land comprised in Certificate of Title Volume 1644 Folio 711 (Property).
The plaintiff, Police & Nurses Limited, commenced these proceedings against the defendant on 20 March 2024 claiming the amount owing pursuant to a loan agreement and mortgage, and an order for possession of the Property.
Orders were made on 14 August 2024 that the requirement for personal service of the writ of summons on the defendant be dispensed with and for substituted service.
On 26 August 2024, the defendant filed a memorandum of appearance as a self-represented litigant. No email address was provided in the memorandum and the address for service was given as that of the Property.
By chamber summons filed on 26 September 2024 (Application), the plaintiff applies for leave to bring an application for summary judgment, for an order that the requirement for conferral pursuant to O 59 r 9(1) of the Rules of the Supreme Court 1971 (WA) (RSC) be waived and for summary judgment pursuant to O 14 RSC. The plaintiff seeks judgment against the defendant for the amount owing pursuant to the loan agreement, together with interest and an order for possession of the Property.
[4]
In support of the Application, the plaintiff relies on an outline of submissions filed on 4 July 2025 and the following affidavits:
[5]
(a) affidavit of Nicola Lynn Pillion affirmed on 25 September 2024 (Pillion Affidavit) deposing to details of the loan and mortgage and the default relied upon;
(b) affidavit of Daniel Mark Jones affirmed on 26 September 2024 (Jones Affidavit) deposing to service of the notice of default;
(c) affidavit of Brian Cameron Smith sworn on 26 September 2024 (Smith Affidavit) in support of the plaintiff's application for leave to bring the Application; and
(d) affidavit of Lucas Geoffrey Giles sworn on 11 August 2025 (Giles Affidavit) as to the amount owing under the loan agreement as at that date and the rate at which interest continues to accrue.
[6]
Orders were made on 27 May 2025 at a hearing attended by the plaintiff and the defendant, requiring the defendant to file and serve any affidavits in response to the Application by 17 June 2025, and to file and serve an outline of submissions in response to the Application by 15 July 2025. The defendant has not filed any affidavits or submissions in response to the Application.
The defendant did not attend the hearing today.[1] I am satisfied that the defendant has been given a reasonable opportunity to present his case and was on notice of today's hearing. The orders made on 27 May 2025, in the defendant's presence, also included that the Application remain listed for hearing at 11.00 am today, 12 August 2025.
Further, an email was sent to the plaintiff's solicitors and a copy sent to the defendant by express post to the Property address on 29 July 2025 in relation to the hearing of the Application, again referring to the time and date of the hearing.
I am satisfied the defendant is on notice of the hearing of the Application and the time and date of the hearing. He has not filed any affidavits or submissions in opposition to it and, at the time of delivery of my reasons for decision, had not appeared. There had been no communication with the court to explain the defendant's absence.
For those reasons, I was satisfied that it was appropriate to proceed to hear the Application in the defendant's absence and did so.
In addition to the oral reasons delivered, I note that the defendant entered the courtroom towards the end of me delivering my oral reasons for decision,[2] and sat in the public gallery. Having been identified as the defendant, following delivery of my oral reasons, the defendant was asked to come forward to the Bar table. I informed the defendant that the Application had been heard, reasons for decision had been delivered and the time for presenting any documents or submissions in opposition to the Application had passed.
Having stated in general terms the orders to be made in my oral reasons for decision, I heard from the plaintiff and the defendant in relation to the final form of the orders to be made.
[7]
Procedural requirements and applicable legal principles relating to summary judgment
[8]
The procedural requirements for an application for summary judgment were summarised by Archer J[3] in Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna.[4]
An application for summary judgment must be brought within 21 days after an appearance has been filed, or a later time with leave of the court.[5]
The 21-day limit to bring an application for summary judgment reflects the view that such applications should be brought promptly and at an early stage of the proceedings, before unnecessary expense is incurred. Where leave is required to bring an application out of time, the onus is on the applicant to demonstrate that the delay is justifiable in the circumstances. Any prejudice to the other party caused by the delay and the prospects of the application are also relevant factors.[6]
In Gallo v Dawson,[7] McHugh J said in the context of leave to extend time to appeal:
[9]
The discretion to extend time is given for the sole purpose of enabling the Court of Justice to do justice between the parties. This means that the discretion can be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. 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.
[10]
An application pursuant to O 14 RSC must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.[8]
The principles that apply to an application for summary judgment are well established. The key principles were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd, as follows:[9]
[11]
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: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only 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: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
[12]
The plaintiff bears the burden of persuading the court that the claim is a good one and there is no defence to it. If the plaintiff's affidavit or affidavits in support of the Application make out a prima facie case on these two matters, the evidentiary burden ordinarily passes to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action. A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend to particulars and provide sufficient details of their defence.[10]
[13]
Leave to bring the Application out of time and waiver of conferral
[14]
As noted, the defendant filed an appearance on 26 August 2024. As such, the 21-day time limit for bringing an application for summary judgment expired on 16 September 2024. The Application was filed 10 days later, on 26 September 2024.
This is a short delay, which is explained in the Smith Affidavit. Mr Smith explains that, although the defendant entered his appearance on 26 August 2024, a copy was not served on the plaintiff. The plaintiff's solicitors became aware that an appearance had been filed on about 9 September 2024 when they received a notification from the court to attend a case management conference.
On 11 September 2024, the plaintiff instructed its solicitors to commence preparation of the Application. On the same date, the plaintiff's solicitors sent a letter to the defendant advising him they had been instructed to prepare an application for summary judgment and seeking his engagement in conferral. Mr Smith deposes that no response was received to the letter and further efforts were made by the plaintiff's solicitors to confer with the defendant, which were unsuccessful. Following preparation of affidavits in support of the Application, and such being sworn, the Application was filed on 26 September 2024, after a further attempt to contact the defendant by telephone that day.
I am satisfied on the evidence before me that, although there was a delay in bringing the Application, it is not an undue delay and was justifiable in the circumstances. The Application is still brought at an early stage of the proceedings and before a defence had been filed. There is no evidence of any prejudice to the defendant caused by the short delay in bringing the Application.
For these reasons, I am satisfied it is appropriate that the plaintiff have leave to bring the Application. The time for bringing the Application should be, and is, extended to the date of filing. I am also satisfied, in the circumstances deposed to by Mr Smith, and the efforts made to confer with the defendant, as set out in the memorandum of conferral, that it is appropriate that the requirement for conferral under O 59 r 9 RSC be waived.
[15]
The facts relevant to the plaintiff's claim and the Application
[16]
The following facts, verified by the Pillion Affidavit and the Jones Affidavit, make up the essential elements of the plaintiff's claim.
On 26 February 2018, the plaintiff and the defendant entered into a written loan agreement (Loan Agreement), signed on behalf of the plaintiff on 21 February 2018 and on behalf of the defendant on 26 February 2018.[11] Pursuant to the Loan Agreement, the defendant borrowed the amount of $257,877.22 (Loan Amount) from the plaintiff, which the defendant agreed to repay to the plaintiff in accordance with the terms and conditions of the Loan Agreement.[12] The plaintiff advanced the loan amount to the defendant on 26 February 2018.[13]
The Loan Agreement incorporated by reference the terms contained in the plaintiff's Home Loan Terms and Conditions (30 September 2017) booklet (Terms and Conditions).[14]
The defendant secured repayment of all money payable under the Loan Agreement by an existing first registered mortgage over the Property in favour of the plaintiff registered on the title of the Property on 12 July 2012 bearing number L991080 (Mortgage).[15]
The Mortgage incorporated by reference the terms contained in a memorandum of common provisions registered number L354582 (Memorandum of Provisions).[16]
Relevantly, pursuant to the terms of the Loan Agreement and Mortgage and as set out in the Terms and Conditions and the Memorandum of Provisions:
[17]
(a) the defendant agreed to repay the Loan Amount, together with interest at the rates provided, by monthly repayments of principal and interest over 360 months as set out in the Loan Agreement;[17]
(b) the defendant would be in default of the Loan Agreement and the Mortgage if he failed to make a payment of any amount due under the Loan Agreement when it was due to be paid;[18]
(c) if the defendant was in default, the plaintiff may issue to the defendant a notice specifying the default and providing a period of time within which the default may be rectified;[19]
(d) if a default was not rectified within the time specified in a default notice given to the defendant, or as required by law, without further notice to the defendant, the whole of the amount due under the Loan Agreement would become immediately due and payable and, under the terms of the Mortgage, the plaintiff may sue the defendant for the amount owing and enforce its rights to recover possession of the Property. [20]
[18]
As at 13 December 2023, the defendant had failed to pay the amount of $4,435.92 to the plaintiff when it was due.[21]
The plaintiff issued and served a notice of default dated 13 December 2023 (Default Notice)[22] on the defendant under the Loan Agreement and Mortgage as prescribed by the terms of each of those agreements, and pursuant to s 88 of sch 1 of the National Consumer Credit Protection Act 2009 (Cth) (National Credit Code) and s 106 of the Transfer of Land Act 1893 (WA).
The Default Notice specified the default and required the defendant to rectify the default by paying $4,864.62 (being arrears of $4,435.92 as at 13 December 2023 plus enforcement expenses of $428.70) by the time specified in the notice, 22 January 2024. The total amount stated to be owing under the Loan Agreement and Mortgage at that time was stated in the Default Notice as $232,882.10. The Default Notice also stated that if the amount of $4,864.62 was not paid by 22 January 2024, without further notice to the defendant:
[19]
(a) pursuant to the terms of the Loan Agreement, the whole of the amount required to pay out the loan would become immediately due and payable; and
(b) the plaintiff may commence enforcement proceedings in relation to the default, including for repossession of the Property; and
(c) the plaintiff proposed to exercise its power of sale in respect of the Property; and
(d) the plaintiff may exercise all or any of the other rights under the Loan Agreement, the Mortgage, or at law.
[20]
The defendant did not rectify the default within the time specified in the Default Notice.[23]
As at the date of affirmation of the Pillion Affidavit, the amount in arrears under the Loan Agreement was $25,121.16 and the total amount outstanding was $251,669.78, increasing at a daily rate of $49.81.
The amount outstanding as at 11 August 2025, as verified in the Giles Affidavit, is $275,565.11, with interest accruing on that amount at a rate of 6.72% per annum ($50.73 per day).
Ms Pillion deposes on behalf of the plaintiff to her belief that there is no defence to the plaintiff's claim.[24]
The plaintiff seeks summary judgment against the defendant for the amount owing under the Loan Agreement and Mortgage and orders for possession of the Property.
[21]
The defendant's position in relation to the Application
[22]
As noted, the defendant did not file any affidavits or submissions in response to the Application and has not appeared today to oppose the Application.
[23]
For the following reasons, leave should be, and is, granted to the plaintiff to bring the Application out of time and an order will be made waiving the requirement for conferral in relation to the Application. I am also satisfied on the evidence before me, as outlined, that the plaintiff has complied with the other procedural requirements for an application for summary judgment, and made out a prima facie case that it is entitled to possession of the Property under the terms of the Loan Agreement and Mortgage.
Ms Pillion and Mr Jones have sworn affidavits deposing to the facts verifying the plaintiff's claim, as outlined. Ms Pillion has deposed to her belief on behalf of the plaintiff that there is no defence to the claim.
In my view, the plaintiff's case and its entitlement to the orders sought are clearly established on the evidence before the court. The defendant defaulted under the terms of the Loan Agreement and Mortgage by failing to make repayments when they were due and payable. A Default Notice has been served on the defendant. The default has not been remedied and the amount owing under the Mortgage has increased.
The defendant has not discharged his evidentiary burden of establishing that there is an arguable defence to the plaintiff's claim, an issue or question to be tried, or some other reason why there ought to be a trial of the action. There has been no opposition to the Application.
I recognise that summary judgment should only be awarded in the clearest of cases. I am satisfied, on the evidence before the court, that this is such a case and that it is appropriate to grant summary judgment.
[24]
For these reasons, I am satisfied that the time for bringing the Application should be extended to the date of filing, 26 September 2024, that summary judgment should be entered for the plaintiff against the defendant for the amount owing under the Loan Agreement, and that an order be made requiring the defendant to deliver up vacant possession of the Property to the plaintiff.
I will hear from the plaintiff as to the final form of orders and in relation to costs.
As noted, at this stage the defendant, who had entered the courtroom and taken a seat in the public gallery towards the end of delivery of my oral reasons, was identified and invited to come forward to the Bar table.
The defendant accepted that he had not filed any materials or opposed the Application, and that the time for producing any documents had passed.[25]
I heard from the plaintiff as to the form of the final orders and gave the defendant the opportunity to be heard in relation to the time sought by the plaintiff for delivery of possession of the Property by the defendant to the plaintiff. He did not seek any alternative date.[26]
A copy of the orders made is attached to these reasons.
[25]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[26]
[27]
[28]
[1] Which, due to technical issues, commenced at 11.40 am.
[29]
[4] Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 (Cologna Investments) [27] (Archer J). See also Commonwealth Bank of Australia v Shada Pty Ltd [2025] WASC 200 [12] - [14], [30] - [31] (Gething J).
[30]
[6] Cologna Investments [26], [27.2]. See also Mineralogy Pty Ltd v Sino Iron (No 11) [2016] WASC 235 [4] (Chaney J); Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 (Lafferty) [40] ‑ [41] (Tottle J); Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac Banking) [38] (Pritchard J).
