PRIVATE LENDER PTY LTD -v- MOODLEY [2025] WASC 418 (2 October 2025)

1. The first defendant entered an appearance on 2 September 2024, and an amended appearance on 2 October 2024. The second defendant entered an appearance on 5 March 2025.
2. A notice of change of representation was filed on 16 April 2024 by Vogt Legal as solicitors for first and second defendants.
3. Orders were made at a hearing on 24 April 2025 attended by Mr Vogt on behalf of the defendants which, relevantly, required:

(a) the defendants to file and serve any affidavits in opposition to the Application by 15 May 2025;

(b) the plaintiff to file and serve any further affidavits and an outline of submissions in support of the application by 22 May 2025; and

(c) the defendants to file an outline of submissions in opposition to the Application by 29 May 2025.

1. On 29 April 2025 the plaintiff filed an amended statement of claim which deleted paragraph 25 of the statement of claim alleging the amount owing under the Agreement, as defined, including interest, costs and charges of $427,103.02. The prayer for relief was also amended to seek judgment only for an order that the first and second defendants give the plaintiff possession of the land described, and deleting its claim for costs.
2. In an affidavit sworn by Christopher Yam on 22 May 2025, Mr Yam deposes to communications between him and the defendants' solicitors regarding filing and service of any affidavits in opposition to the Application, which were due to be filed by the defendants by 15 May 2025. Mr Yam deposes that, as at 22 May 2025, he had not received a response as to whether the defendants intended to file and serve any affidavits in opposition to the Application.
3. The plaintiff filed its outline of submissions in support of the Application on 26 May 2025.
4. On 8 September 2025, the defendants filed a notice of change of representation informing the Court and the plaintiff that they were now acting in person.
5. At 10.38am on 10 September 2025, just before the special appointment listed to hear the Application was due to commence at 11am, the first defendant emailed to the Court:

(a) a document titled 'Notice of opposition to plaintiff's application for summary judgment';

(b) an affidavit of Mervin Moodley affirmed on 10 September 2025 (First Moodley Affidavit);

(c) an outline of submissions;

(d) a chronology; and

(e) a minute of proposed orders.

1. The second defendant did not attend the hearing on 10 September 2025. She informed the court, by email sent on 9 September 2025, that this was due to the late change in representation and her work commitments.
2. For the reasons given orally on 10 September 2025, I adjourned the hearing of the Application to 30 September 2025 and made orders for the filing of any further affidavits in opposition to the Application by the first and second defendants, and for the plaintiff to file responsive submissions.
3. On 12 September 2025, the first defendant filed a further affidavit sworn on 11 September 2025 (Second Moodley Affidavit). On 19 September 2025, the plaintiff filed supplementary submissions responding to the issues raised in the materials filed by the first defendant.
4. The second defendant has not filed any affidavits or submissions in opposition to the Application and did not attend the adjourned hearing of the Application on 30 September 2025. In her email sent to the court on 9 September 2025, the second defendant indicated that she authorised the first defendant to attend and oppose the Application at the hearing on 10 September 2025. There was no communication from the second defendant seeking to be excused and no explanation for her not attending the hearing on 30 September 2025. The first defendant said that the second defendant had work commitments away from Perth.
5. I was satisfied that the second defendant was on notice of the hearing and that it was appropriate to proceed to hear the Application in her absence.

1. I will deal firstly with the plaintiff's application for leave to bring the Application against the first defendant.
2. The rules require an application for summary judgment to be made within 21 days after an application has been filed, or any later time with leave of the Court.[1]
3. The 21-day limit to bring an application for summary judgment reflects the view that such applications should be brought at an early stage of the proceedings. Where there is a delay, the onus is on the applicant to demonstrate that the delay is justifiable in all of the circumstances.[2]
4. The first defendant entered an appearance on 2 September 2024 and an amended appearance on 2 October 2024. The Application was filed on 18 March 2025, approximately six and a half months after the first defendant entered his appearance. As such, the plaintiff requires, and has sought, leave to bring the Application as against the first defendant.
5. The second defendant entered an appearance on 5 March 2025, within the 21-day limit. As such, leave to bring the Application is not required in respect of the second defendant.
6. In relation to the delay in bringing the Application as against the first defendant, the plaintiff says that it did not bring an application for summary judgment against the first defendant within 21 days of appearance in the interests of efficiency. Rather it brought one Application against both defendants after service of the writ on the second defendant and within 21 days of the second defendant's appearance.
7. I am satisfied that, although there was a delay in bringing the Application, it is not an undue delay. The Application is still brought at an early stage of the proceedings and before a defence was filed. There is no evidence of any prejudice to the first defendant caused by the delay in bringing the Application against him more than 21 days after his appearance was filed.
8. The merits of the Application are also a relevant consideration. For the reasons I will develop, the merits of the Application are such that leave ought to be granted, in any event.
9. For these reasons, I am satisfied that leave to bring the Application against the first defendant should be granted, the time for which is extended to the date of filing, 18 March 2025.

1. 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.[3]
2. The legal principles relating to applications for summary judgment are well established. The key principles were summarised in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd, as follows:[4]

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 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: 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].

1. The plaintiff bears the burden of persuading the Court that the claim is a good one and there is no defence. If the plaintiff's affidavit in support of the Application makes out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or another reason there ought to be a trial.[5]
2. 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.[6]

The facts relevant to the plaintiff's claim and the Application

1. The following facts, verified by the Khaimov Affidavit, make up the essential elements of the plaintiff's claim.
2. The first defendant is the sole director and shareholder of the Borrower, Project Service Consultants Pty Ltd.[7]
3. On or about 31 October 2022, the plaintiff, as lender, entered into a written agreement (Agreement) with the Borrower and the first and second defendants, pursuant to which:[8]

(a) the plaintiff loaned the Borrower $250,000 (Loan Amount);

(b) the first and second defendants guaranteed the Borrower's obligations under the Agreement; and

(c) the first and second defendants granted the plaintiff a mortgage over the Property (Mortgage) as security for the Borrower's obligations under the Agreement.

(a) the Loan Facility Summary signed by the first and second defendants and the Borrower on 3 November 2022;

(b) a Fee Schedule signed by the first and second defendants and the Borrower on 3 November 2022;

(c) the Mortgage granted over the Property executed by the first and second defendants on 3 November 2022, incorporating by reference Registered Mortgage Memorandum of Common Provisions O885782 (Memorandum), which sets out the terms and conditions of the Agreement, Mortgage and Guarantee; and

(d) the Drawdown Authority from the Borrower to the plaintiff dated 3 November 2022.

1. By cl 30 of the Memorandum, the first and second defendants, as guarantors, guaranteed performance of the Borrower's obligations under the Agreement and indemnified the plaintiff with respect to the Borrower's performance of its obligations.
2. The loan was a short-term loan of six months and was repayable six months after the Payment Date stated in the Agreement, being six months after 31 October 2022.[9]
3. The Memorandum provides that failure to pay any amount payable when it was due to be paid is an event of default.[10] If an event of default occurs, the plaintiff is entitled, amongst other things, to take possession of the Property.[11]
4. The Loan Amount of $250,000 was advanced to the Borrower by the plaintiff on 9 November 2024.[12]
5. As at 1 May 2023, the Borrower had failed to pay an amount owing to the plaintiff when due and payable.[13] As a result, it was in default under the terms of the Agreement, and the first and second defendant became liable to pay the amount owing to the plaintiff pursuant to the Guarantee.
6. On 9 May 2023, the plaintiff, the Borrower and the first and second defendants entered into a Deed of Support (Deed of Support),[14] by which, relevantly:

(a) the first and second defendants acknowledged that the secured money under the Guarantee as at 3 May 2023 was $274,952.87 plus all other amounts due under the finance documents;[15]

(b) the Borrower had breached the terms of the Agreement and the first and second defendants had breached the terms of the Guarantee by failing to pay the secured money by 1 May 2023;[16]

(c) the breaches were an event of default under the Agreement, Mortgage and Guarantee;[17]

(d) the plaintiff would not take any steps to enforce the events of default against the Borrower or the first and second defendants as guarantors before 29 June 2023;[18] and

(e) the Borrower and the first and second defendants were to pay $274,952.87 and all other amounts then due (secured money) to the plaintiff by no later than 29 June 2023.[19]

1. The Borrower and the defendants failed to pay the plaintiff the secured money by 29 June 2023.[20]
2. On 27 September 2023, the plaintiff, by its solicitors, issued a notice of default to the Borrower, the first defendant and second defendant (Default Notice).[21] The Default Notice stated that the Borrower and the first and second defendants were in default and demanded payment by the defendants of the whole amount owing pursuant to the Agreement and Guarantee, being $290,000 plus the costs of preparing and serving the Default Notice. The total amount owing and demanded was $291,500. The Default Notice stated that if the default was not rectified within one month of the date of service of the notice, by payment of $291,500, the plaintiff would exercise its power of sale over the Property in its capacity as mortgagee.
3. No payment was made to rectify the default within the time specified in the Default Notice.[22]
4. The plaintiff claims and seeks orders for possession of the Property pursuant to the terms of the Agreement and Memorandum.

1. The overarching issues that arise for determination in respect of the Application may be summarised as follows:
   1. Has the plaintiff established a prima facie case that it is entitled to summary judgment and an order for possession of the Property?
   2. If so, is there an arguable defence or some other reason why there ought to be a trial of the action?

Has the plaintiff established a prima facie case that it is entitled to summary judgment and an order for possession of the Property?

1. I am satisfied that the plaintiff has complied with the procedural requirements for an application for summary judgment. The action, having been commenced by writ, is one to which O 14 RSC applies. The writ was indorsed with a statement of claim, which was subsequently amended on 29 April 2025. Mr Khaimov deposes in the Khaimov Affidavit to the facts verifying the claim, as set out in these reasons. He also deposes to his belief, on behalf of the plaintiff, that there is no defence to the plaintiff's claim.
2. On the basis of the evidence adduced by the plaintiff, as outlined, I am satisfied the plaintiff has made out a prima facie case.

Is there an arguable defence or some other reason why there ought to be a trial of the action?

1. The second defendant has not filed any affidavits or submissions in opposition to the Application.
2. In the materials filed by the first defendant on 10 and 12 September 2025, the first defendant asserts two bases upon which he says the Application should be dismissed. They may be summarised as follows:

(a) the National Credit Code (NCC)[23] applies to the Agreement, and the plaintiff has failed to comply with requirements of the NCC; and

(b) the Agreement is unjust on the basis of:

(i) the interest rate of 4% per month (48% per annum);

(ii) a minimum six months' interest being payable even if the loan is repaid early; and

(iii) uncapped and unascertainable fees in the fee schedule, which the first defendant explained refers to the 'Extension Fee' and 'Legal Disbursements' in the Fee Schedule.[24]

1. The first defendant relies on s 5(1)(b) of the NCC, which he submits applies where credit is provided to refinance credit previously provided for a residential property for use as a residence. In that regard, the first defendant submits, in effect, that more than 10% of the Loan Amount was applied to settle arrears on his residential home loan and that portion of the loan constitutes residential refinancing and brings the Agreement within the NCC, independently of the 'predominant purpose' test in s 5(4) of the NCC.
2. The first defendant submits that, although the Facility Summary in the loan documentation contains a clause stating that the loan is not subject to the NCCP Act or the NCC, such is ineffective by operation of s 13(3) of the NCC, which he contends applies notwithstanding any contractual term to the contrary. He says that at the time of applying for the loan he informed the plaintiff's representative or broker and its lawyers that a portion of the loan funds would be applied for personal and household purposes including contributing to renovating the property, which is the family residential property, assisting with personal liabilities and refinancing a caveat on the Property.[25]
3. He relies on a copy of an email from the plaintiff's lawyers to his lawyer relating to disbursement of the loan funds on settlement,[26] which include amounts of $27,644 to be paid to Commonwealth Bank, $1,311.80 to City of Perth, $2,633.44 to City of Vincent and $168,142.91 to Mango Capital Pty Ltd and Isla Pty Ltd. The first defendant submitted that the latter was to discharge a caveat on the mortgage and Property. There is no evidence as to what the mortgage and caveat related to, or as to whether it was a business expense or otherwise.
4. Also attached to the Second Moodley Affidavit is a copy of a Commonwealth Bank statement showing a payment to the defendants' home loan account in the amount of $27,644 on 14 November 2022.
5. The first defendant says that the plaintiff failed to provide pre-contract disclosure and information statements as required by ss 17 and 18 of the NCC and responsible lending under the NCCP Act. He also says the loan terms are unjust because of the high rate of interest and for the other reasons referred to, as outlined. He contends that these are matters which give rise to an arguable defence or at least an issue that ought to be tried, making this matter unsuitable for summary judgment.
6. In support of his submissions to the effect that the real purpose of the loan was for domestic or household purposes and, as such, the NCC applies to the Agreement, the first defendant referred to[27] Perpetual Trustee Co Ltd v Khoshaba,[28] Australian Securities and Investments Commission v Channic Pty Ltd (No 4),[29] Australian Securities and Investments Commission v Kobelt,[30] Permanent Custodians Ltd v Upston,[31] and the Australian Securities and Investments Commission Regulatory Guide 209, 'Credit licensing: responsible lending conduct'.[32]
7. During the hearing of the Application, the first defendant was not able to direct me to the relevant parts of the authorities and Regulatory Guide that he sought to rely on. At my request, he emailed my associate after the hearing with a document identifying the relevant parts.[33]
8. Having reviewed those authorities and the references provided, I accept the plaintiff's submissions to the effect that they concern borrowers who were natural persons, as opposed to a corporation, or other issues that are not relevant to, and do not support, the first defendant's contentions in this case. It is the plaintiff's position that the NCC does not apply to the Agreement and that the terms are not unjust, as contended by the first defendant.

1. The NCC regulates the provision of 'credit' and applies to all 'credit contracts' entered into after its commencement date of 1 July 2010, or which were on foot immediately prior to that date and were regulated by the predecessor Consumer Credit Code.
2. Under s 3 of the NCC, 'credit' is provided if under a contact:

(a) payment of a debt owed by one person (the debtor) to another (the credit provider) is deferred; or

(b) one person (the debtor) incurs a deferred debt to another (the credit provider).

1. A 'credit contract' is defined in s 4 of the NCC as a contract under which credit is or may be provided.
2. Section 5(1) sets out the provision of credit or types of 'credit contract' to which the NCC applies, as follows:
   1. Provision of credit to which this Code applies:

(1) This Code applies to the provision of credit (and to the credit contract and related matters) if when the credit contract is entered into or (in the case of precontractual obligations) is proposed to be entered into:

(a) the debtor is a natural person or a strata corporation; and

(b) the credit is provided or intended to be provided wholly or predominantly:

(i) for personal, domestic or household purposes; or

(ii) to purchase, renovate or improve residential property for investment purposes; or

(iii) to refinance credit that has been provided wholly or predominantly to purchase, renovate or improve residential property for investment purposes; and

(c) a charge is or may be made for providing the credit; and

(d) the credit provider provides the credit in the course of a business of providing credit carried on in this jurisdiction or as part of or incidentally to any other business of the credit provider carried on in this jurisdiction.

1. As submitted, by the plaintiff, for the NCC to apply, all four of the conditions in s 5(1)(a) - (d) must be satisfied. As observed by Doyle J in Bendigo and Adelaide Bank Ltd v Brackenridge,[34] which is evident from the use of the word 'and' in a conjunctive sense at the end of each sub‑section.
2. I accept the plaintiff's submissions to the effect that that pursuant to s 5(1)(a), for the NCC to apply to a credit contract, the debtor must be a natural person or a strata corporation. With respect to the Agreement, for the purpose of the NCC, the debtor is Project Service Consultants Pty Ltd, a corporation.
3. The Agreement is between the plaintiff and the Borrower. It was not entered into by the first defendant in his personal capacity. He signed the Agreement as sole director and company secretary of Project Service Consultants Pty Ltd in accordance with s 127 of the Corporations Act 2001 (Cth). The Borrower is not a natural person and there is no evidence it is a strata corporation, nor is it contended otherwise. In the circumstances, s 5(1)(b) has no application and the NCC does not apply to the Agreement.

Do the terms of the Agreement give rise to an arguable defence or triable issue?

1. In relation to the first defendant's contention that the Agreement is unjust on the basis of the interest rate charged and the terms referred to, the plaintiff submits as follows:
   1. In relation to the interest rate, cl 23 of the Memorandum[35] provides:

Interest is payable at the Standard Rate. If, however, none of the Obligors are in breach of the Agreement at the time an interest payment is due, the interest is instead payable at the Discount Rate.

1. Pursuant to the Facility Summary, the Standard Rate is 4% per month, and the Discount Rate is 2% per month. On a proper construction, cl 23 of the Memorandum is an example of an interest clause which provides a discount for early payment, rather than a penalty for late payment.
2. Where in Australia an interest clause is drafted in such a way, the rate does not amount to a penalty and is not unconscionable, and is not capable of being disturbed, other than by the High Court or Parliament.[36]
3. In those circumstances, it is not open to the court to find that the interest rates charged by the plaintiff were unjust or unconscionable.
4. In entering into the Agreement, Guarantee and Mortgage, the Borrower and the defendants agreed to the terms and the interest rates, the defendants most likely anticipating they would be in a position to repay the Loan Amount within the term of the Loan. Whilst the interest rates that apply to the loan under the Agreement are significantly higher than generally charged by major banks and financial institutions, it is not unusual for higher rates to be charged by other lenders, particularly for short term loans, and is not of itself a defence to the plaintiff's claim.
5. I accept the plaintiff's submissions that the interest provision is drafted so as not to be a penalty. As such, I am unable to find that the rates charged are unjust, as contended by the first defendant.
6. As to the first defendant's contentions concerning a minimum of six months interest being payable even if the loan was repaid early, the plaintiff submits as follows:
   1. The loan was for a short term of only six months. It was a term of the Agreement that the entirety of the discount interest for the term of the loan, being $30,000, was retained by the plaintiff and deducted or offset against the defendant's monthly interest liability for the duration of the term. There is nothing unjust or unconscionable about that term and there is no evidence to suggest otherwise.
   2. Nor is there evidence that the defendants have suffered any prejudice. The term of the Agreement has come and gone and the defendants have not repaid the loan. As such, the purported claim of injustice is entirely hypothetical and has no application in the circumstances where there has been no early repayment.
7. In the circumstances, the first defendant's contention is purely theoretical and does not give rise to a defence to the plaintiff's claim.
8. In relation to the first defendant's contentions concerning uncapped and unascertainable fees, I accept the plaintiff's submissions to the effect that there is nothing inherently unjust because the fees identified are stated to be unascertainable. Nor is there evidence to suggest such are unconscionable.
9. The 'Extension Fee' is described in the Fee Schedule as a fee that may be charged by the plaintiff where a request is made that the plaintiff extend the date by which the loan is to be repaid. 'Legal Disbursements' are described in the Fee Schedule[37] as expenses and disbursements incurred by the plaintiff's lawyers for the preparation of securities and settling the Agreement, including, search, enquiry, lodgment fees and other costs and charges referred to.
10. In each case, as submitted by the plaintiff, such fees are of a character that an exact amount is unable to be ascertained at the time of entering into the Agreement and would be ascertained at or after the time at which those fees are incurred. I am not persuaded that those terms are such as to give rise to any injustice or prejudice so as to amount to a defence or a triable issue.
11. I accept the submissions made on behalf of the plaintiff that none of the matters raised by the first defendant give rise to an arguable defence to the plaintiff's claim or some other reason why there should be a trial of the action. The second defendant has raised no defence or put on any material in opposition to the Application.
12. I am satisfied on the evidence before me, exercising the proper degree of care, that it is appropriate to grant summary judgment.

1. For these reasons, I am satisfied that the plaintiff should have leave to bring the Application against the first defendant, the time for which is extended to the date of filing, 18 March 2025. I am also satisfied that summary judgment should be entered for the plaintiff against the first defendant and the second defendant, and that an order should be made requiring the defendants to deliver up vacant possession of the Property to the plaintiff.
2. I will hear from the parties as to the form of the orders to be made.

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

[2] See Westpac Banking Corporation v Anderson [2017] WASC 106 [38] (Pritchard J) and the authorities referred to.

[4] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].

[5] Westpac Banking Corporation v Anderson [53] - [54], [103]. See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [54] (Tottle J) and the authorities referred to.

[6] Deputy Commissioner of Taxation v Lafferty [54].

[7] Khaimov Affidavit [5], Attachment 'C'.

[8] Amended Statement of Claim [4]; Khaimov Affidavit [6] - [7], Attachment 'D' (Agreement).

[9] Khaimov Affidavit, Agreement, page 18, Attachment 'E' (Memorandum), cl 20.

[14] Khaimov Affidavit [11], Attachment 'F' (Deed of Support), page 61.

[15] Deed of Support cls 1.3(e), 1.3(f), 1.5.

[19] Deed of Support, Lender Support Conditions 1.

[21] Khaimov Affidavit [13], Attachment 'G'.

[23] National Consumer Credit Protection Act 2009 (Cth) (NCCP Act) sch 1.

[24] Khaimov Affidavit [24] - [25], Agreement, pages 24 - 25 (items 5 and 12).

[25] First Moodley Affidavit [5(a)]; Second Moodley Affidavit [V(a)], Appendix B.

[26] Second Moodley Affidavit [V(a)], Appendix B.

[27] First defendant's Submissions filed on 10 September 2025; First defendant's List of Authorities filed on 30 September 2025 (List of Authorities).

[28] Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 [114] - [115], [124] - [127], [139] - [142].

[29] Australian Securities and Investments Commission v Channic Pty Ltd (No 4) [2016] FCA 1174.

[30] Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1.

[31] Permanent Custodians Ltd v Upston [2007] NSWCA 41.

[32]Australian Securities and Investments Commission, Regulatory Guide 209, 'Credit licensing: responsible lending conduct' (December 2019).

[34] Bendigo and Adelaide Bank Ltd v Brackenridge [2020] SASC 114 [370].

[35] Khaimov Affidavit, Agreement, page 44.

[36] Referring to Oxygen Funding Solutions Pty Ltd v Dick-Telfar [2020] NSWSC 582 [78] - [81]; Kellas-Sharpe v PSAL Limited [2013] 2Qd R 233; 2012 QCA 371 [2] - [4].

[37] Khaimov Affidavit, Agreement, page 24.