SECURE FUNDING PTY LTD -v- ANAND [2023] WASC 441 (17 November 2023)

The default is in relation to clause 7.1(b) of the Loan Agreement [Terms and Conditions] in that you failed to get [the plaintiff's] consent as required by clause 6.1 of the Mortgage [P]rovisions... prior to carrying out the demolition of the [house on the]...[P]roperty ...

1. The Default Notice stated that the default was not capable of remedy and required the defendant to pay the amount outstanding under the Loan, default interest thereon, and enforcement expenses within 31 days.
2. The defendant did not comply with the Default Notice within the period specified.
3. On 31 January 2023, the plaintiff commenced these proceedings against the defendant seeking, inter alia, possession of the Property and the outstanding amount of the Loan.
4. The defendant entered an appearance on 10 May 2023.
5. The plaintiff filed the application for summary judgment on 31 May 2023.

1. By chamber summons dated 31 May 2023, the plaintiff applied for summary judgment against the defendant pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) (application).
2. The plaintiff relies upon the following in support of the application:

(1) affidavit of Damian Crowley affirmed 13 April 2023 (Crowley Affidavit)

(2) affidavit of Joe George Mercieca sworn 31 May 2023 (First Mercieca Affidavit);

(3) affidavit of Jessica Alicia Garafalo sworn 12 June 2023 (First Garafalo Affidavit)

(4) affidavit of Joe George Mercieca sworn 21 June 2023 (Second Mercieca Affidavit);

(5) affidavit of Jessica Alicia Garafalo sworn 21 June 2023 (Second Garafalo Affidavit)

(6) affidavit of Jessica Alicia Garafalo sworn 23 June 2023 (Third Garafalo Affidavit);

(7) affidavit of Jessica Alicia Garafalo sworn 25 October 2023 (Fourth Garafalo Affidavit); and

(8) outline of submissions filed 30 June 2023 in support of the application.

1. The defendant opposes the application and relies upon his affidavits sworn 14 June 2023 (First Anand Affidavit) and 4 July 2023 (Second Anand Affidavit) and his outline of submissions filed 3 July 2023.

1. Order 14 r 1(1) of the RSC provides that where a statement of claim has been served on a defendant and the defendant has entered an appearance, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the court for judgment against that defendant.
2. Order 14 r 2(1) of the RSC provides that the application for summary judgment 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. Order 14 r 3(1) of the RSC provides that on the hearing of a summary judgment application, unless the court dismisses the application, or the defendant satisfies the court with respect to the claim, or the part of the claim to which the application relates, 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 or part, the court may give such judgment for the plaintiff against the defendant on that claim or part thereof as may be just, having regard to the nature of the remedy or relief claimed.
4. The legal principles governing the power to order summary judgment are well established. Summary judgment should be exercised with great care and will not be exercised unless it is clear that there is no real question to be tried.[2]
5. Summary judgment must only be granted where the court has a high degree of certainty of the outcome of the proceedings if they went to a trial.[3] If the determination of an application for summary judgment depends upon contested questions of fact, the court should not dispose of the action summarily. However, where the issues raised depend upon questions of law, the court may answer those questions in deciding whether summary judgment should be granted.[4]
6. Once the plaintiff has established a prima facie right to judgment, the onus is on the defendant to satisfy the court why judgment should not be given. The defendant does not have to show a defence on the balance of probabilities, only to show cause as to why there is an arguable defence.[5]
7. In order for the defendant to satisfy the court that there is a serious question to be tried, the defendant is usually required to file an affidavit which contains sufficient particulars to enable the defence case to be properly understood.[6]
8. Therefore, in an application for summary judgment, the court must answer the following questions:

(1) has the plaintiff established a prima facie right to judgment? and if so;

(2) has the defendant shown cause as to why he has an arguable defence?

1. It is only if the plaintiff has established a prima facie right to judgment and the defendant has not shown cause as to why he has an arguable defence, that summary judgment will be granted.

Has the plaintiff established a prima facie right to judgment?

1. The plaintiff has satisfied the formal requirements of O 14 r 2(1) ‑ Mr Mercieca, by his affidavit filed on behalf of the plaintiff, verifies that the facts upon which the claim is based are true and correct and that in his belief the defendant has no defence to the action[7].
2. The plaintiff pleads that the defendant is in breach of cl 7.1(b) of the Loan Agreement Terms and Conditions and cl 6.1 of the Mortgage Provisions because the house on the Property was demolished without the consent of the plaintiff.[8]
3. Clause 7.1(b) of the Loan Agreement Terms and Conditions provides:[9]

(b) you do something you agree not to do, or don't do something you agree to do under this loan agreement; ...

1. Clause 6.1 of the Mortgage Provisions provides: [10]

You must get our consent and all necessary approvals from authorities (and the governing body if the property is part of a shared scheme) before you carry out or permit works, or enter into a contract to carry them out.

1. Works is defined in cl 41 of the Mortgage Provisions to mean:[11]

building work, excavation or earthworks on the property, work demolishing, removing or altering any part of the property, or any building or development work required by an authority in connection with the property.

1. Mr Mercieca, on behalf of the plaintiff, deposes that, based upon his review of the plaintiff's files, the house on the Property was demolished without the plaintiff's consent and the Property is now vacant land.[12]
2. Mr Mercieca, on behalf of the plaintiff, deposes that, on or about 1 December 2022, the solicitors for the plaintiff served the defendant with the Default Notice by registered post at 42 West Coast Drive, Marmion WA 6020, the address for the defendant listed on the certificate of title for the Property.[13]
3. Clause 23.1(b) of the Mortgage Provisions provides that, if the defendant does not correct the default within the time specified in the Default Notice, then the plaintiff may take possession of the Property.[14]
4. It is not in dispute that the defendant has not, as at the date of the application, paid the balance outstanding under the Loan or given possession of the Property to the plaintiff.
5. The plaintiff claims:[15]

(1) Possession of the Property;

(2) Payment of the sum of $510,984.56 as at 25 October 2023;[16]

(3) Interest on the sum of $510,984.56 from 25 October 2023 at the rate of 10.67% per annum until the date of payment, being $149.37 per day;

(4) Fees, charges and enforcement expenses due under the Loan Agreement and the Mortgage; and

(5) Costs of the action on a solicitor and own client basis.

1. I am satisfied that the plaintiff has established a prima-facie right to judgment. That being so, the question is whether the defendant has shown cause as to why he has an arguable defence.

1. The defendant, by his defence and the First and Second Anand Affidavits, submits that he has an arguable defence to the action on one or more of the following grounds:

(1) he has not been validly served with the Default Notice;

(2) the plaintiff has pleaded a default of cl 7.1(b) of the Loan Agreement Terms and Conditions based upon a breach of cl 6.1 of the Mortgage Provisions- the defendant says that the Mortgage Provisions are not incorporated into the Loan Agreement Terms and Conditions. The defendant says that he has an arguable defence because the plaintiff has not pleaded a cause of action based upon a breach of the Loan Agreement Terms and Conditions;

(3) Mr Mercieca is not an employee of the plaintiff and has no authority to depose to matters on behalf of the plaintiff (and Mr Mercieca should not have access to the defendant's confidential information);

(4) the plaintiff was required, acting properly, to consent to a demolition of the house on the Property because the City of Stirling issued the defendant with a notice declaring the house on the Property unfit for human habitation;

(5) the plaintiff has waived its right to rely upon any default of the Loan Agreement Terms and Conditions arising from the demolition of the house on the Property and therefore, is estopped from claiming possession of the Property and the amount outstanding under the Loan;

(6) the clause in the Mortgage Provisions requiring the plaintiff's consent for demolition of the house on the Property is unjust;

(7) the plaintiff failed to comply with O 26 r 8 of the RSC by not producing to the defendant the files it maintained in relation to the defendant;

(8) the plaintiff is merely the trustee of a trust and does not hold the benefit of the Loan because the Loan has been securitised;

(9) the amounts contained in the certificate of outstanding amounts are not calculated accurately.

1. I turn to consider whether each one of these alleged defences is arguable.

Has the Default Notice been validly served on the defendant?

1. The defendant says the Default Notice was not served on him as required by the Loan Agreement Terms and Conditions and the Mortgage Provisions because the Default Notice was not served at his New Zealand address which was his last known address to the plaintiff.[17]
2. The plaintiff says that the Default Notice was validly served on the defendant as it was served in accordance with s 106(2)(b)(i) of the Transfer of Land Act 1893 (WA) (TLA), by sending it by registered post to the address of the defendant in the Register. The plaintiff submits this was a valid form of service even if the Default Notice did not come to the attention of the defendant.[18]
3. Section 106 of the TLA deals with default procedures and by subsection (1) provides that, where a mortgagor is in default in the performance or observance of a covenant in a mortgage, the mortgagee may serve on the mortgagor a written notice to perform and observe that covenant or to pay the amount owing under the mortgage.
4. Section 106(2) of the TLA governs the methods by which that notice can be served:

(2) Service of the notice referred in in subsection (1) is not properly effected unless -

(a) the notice is delivered personally to the mortgagor or the grantor or his transferees, as the case requires; or

(b) the notice is sent by registered post to -

(i) the address entered in the Register as the address of the mortgagor or the grantor or his transferees, as the case requires; or

(ii) the address known to the mortgagee or the annuitant or his transferees as the current address of the mortgagor or the grantor or his transferees, as the case requires;

(c) the notice is left in a conspicuous place on the mortgaged or charged land; or

(d) the notice is sent to the mortgagor or the grantor or the mortgagor's or grantor's transferees, as the case requires, in compliance with a way of sending notices electronically (for example, to an email address) that is prescribed by the regulations for the purposes of this paragraph.

1. 'Register' is defined in s 4 of the TLA to mean 'the Register referred to in section 48'. Section 48 of the TLA provides:

(1) The Registrar shall cause to be maintained for the purposes of this Act a Register comprising -

(a) all registered certificates of title...

1. The address of defendant entered on the certificate of title for the Property is 42 West Coast Drive, Marmion.[19] The plaintiff sent the Default Notice to the defendant at that address by registered post.[20]
2. In the case of Commonwealth Bank of Australia Ltd v Shaddick,[21] the issue of whether a default notice had been validly served was considered in the context of the operation of s 106(2) of the TLA. The plaintiff had sent a default notice to the defendant by registered post to her residential address which was also the address of the mortgaged property. The notice was returned unopened as the property was unoccupied. The defendant contended that the default notice had not been served within the terms of s 106(2) of the TLA because it had not actually come to the attention of the defendant. In finding that the default notice had been validly served, Master Sanderson said:[22]

...[section 106(2)] is not in the nature of a consumer protection provision. It sets out a method by which default notices can be served. It is clear the subsection does not anticipate a default notice will, in every instance, actually come to the attention of the party to be served.

...

In my view, there is no doubt as to the proper interpretation of s 106(2), nor is there any doubt as to the legislature's intent. If one or other of the means of service provided for in the section is complied with by a mortgagee, then service will be effected.

1. In forming this view, Master Sanderson relied upon earlier cases that supported his interpretation of s 106(2) of the TLA.[23]
2. The plaintiff sent the Default Notice to the defendant by registered post to the address entered in the Register as the address of the defendant.[24] The plaintiff has strictly complied with s 106(2)(b)(i) of the TLA. Given only strict compliance with one of the methods of service provided for in s 106(2) of the TLA is required, it is irrelevant whether the Default Notice actually came to the attention of the defendant.
3. I am satisfied that the Default Notice has been validly served on the defendant in accordance with s 106(2)(b)(i) of the TLA. The defendant has not demonstrated that he has an arguable defence on the basis that the Default Notice was not validly served.

Can the plaintiff rely upon a breach of a term of the Mortgage Provisions?

1. The plaintiff pleads that the defendant is in default of cl 7.1(b) of the Loan Agreement Terms and Conditions as a result of a breach of cl 6.1 of the Mortgage Provisions.[25]
2. The defendant says that 'things agreed to be done (or not done) in the [Mortgage Provisions] do not make up a default under cl 7.1(b) of the [Loan Agreement Terms and Conditions]' and that this is a complete defence to the plaintiff's claim.[26]
3. In answer to this submission from the defendant, the plaintiff says that:

(a) pursuant to clause 7.1(e) of the Loan Agreement Terms and Conditions, the defendant is in default of the Loan Agreement Terms and Conditions if he is in default under a 'security';[27]

(b) by clause 16 of the Loan Agreement Terms and Conditions:[28]

schedule means the 'Loan Agreement Schedule' executed by you and us and forming part of this agreement.

security means each security interest described in the schedule under 'Security' ....

security interest means any mortgage... given as or in effect as security for the payment of money or performance of obligations;

(c) the 'Loan Agreement Schedule' describes the 'Security' as the 'new mortgage' taken by the plaintiff over the Property with the defendant as mortgagor.[29]

1. A breach of a security by the defendant, which in this case is a breach of the Mortgage Provisions, clearly constitutes a default of the Loan Agreement Terms and Conditions. I am satisfied that the plaintiff can rely upon a breach of the Mortgage Provisions as giving rise to a default under the Loan Agreement Terms and Conditions. Therefore, the defendant has not demonstrated that he has an arguable defence that a breach of the Mortgage Provisions does not constitute a default of the Loan Agreement Terms and Conditions.

Does Mr Mercieca have authority to depose to matters on behalf of the plaintiff?

1. The defendant submits that Mr Mercieca does not have authority to depose to matters on behalf of the plaintiff because, in order to have that authority, the power of attorney[30] requires him to be a permanent employee of Liberty Financial Pty Ltd whose job title with Liberty Financial Pty Ltd is Team Leader.[31]
2. Mr Mercieca deposes that:

(1) he holds 'the position of Team Leader - Asset Realisation, with Assured Credit Pty Ltd (Assured Credit) which, together with Liberty Financial Pty Ltd (Liberty Financial) and Secure Funding Pty Ltd (Secure) are subsidiaries of Liberty Financial Group Pty Ltd (Liberty Group)';[32]

(2) each entity within the Liberty Group performs different functions;[33]

(3) Liberty Financial is the operating entity of the Liberty Group and handles all day-to-day operations of the Liberty Group. Therefore, in his position as team leader of Assured Credit, he is a permanent employee of Liberty Financial;[34]

(4) Secure, ie the plaintiff, is the funding entity of the Liberty Group and was formerly known as Liberty Funding Pty Ltd;[35]

(5) Assured Credit is the collections and recoveries entity of the Liberty Group and its role is to manage loans provided by the plaintiff and to act on the plaintiff's behalf to collect loans that are in arrears and initiate legal proceedings to recover outstanding loans;[36]

(6) as a permanent employee of Liberty Financial and a team leader of Assured Credit, he can exercise certain powers on behalf of the plaintiff as specified in the power of attorney registered at Landgate (Power of Attorney);[37]

(7) the Loan is one of the loans managed by Assured Credit on behalf of the plaintiff;[38]

(8) in order for Assured Credit to manage the Loan, it received loan records and information relating to the defendant and he can access that information in his role as Team Leader of Assured Credit.[39]

(1) by cl 2, the plaintiff 'appoints the persons named in the First Schedule ('the Attorneys') as the attorneys of the [plaintiff] with the powers and authorities conferred by this deed';

(2) by cl 3, read with the second schedule, the Attorneys may do a number of things in the name of the plaintiff, including signing, sealing, executing and delivering notices relating to the enforcement of any security, commencing any proceedings for the recovery of any debt owing to the plaintiff and to sign, seal, execute and deliver any other documents that are necessary, incidental and convenient to the due and effectual exercise of the other powers specified in the Power of Attorney; and

(3) by the first schedule, 'Attorneys' are defined as 'severally any permanent employee at Liberty Financial' with the job title of 'Team Leader' and/or the job title of 'Manager'.

1. It is the last of these provisions that the plaintiff relies upon as giving rise to an arguable defence. The defendant submits that the first schedule of the Power of Attorney requires Mr Mercieca, in order to have the necessary authority to depose to matters on behalf of the plaintiff, to be both a permanent employee of Liberty Financial and a team leader with Liberty Financial. The defendant says that, while Mr Mercieca may be a permanent employee of Liberty Financial, he is a team leader with Assured Credit and therefore, not an attorney of the plaintiff as defined by the first schedule of the Power of Attorney.
2. In Electricity Generation Corporation v Woodside Energy[41] and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd[42] the High Court reaffirmed that the rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract) and purpose.
3. A court will ordinarily be able to construe the terms of a contract by reference to the contract alone. However, evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.[43]
4. Although the Power of Attorney is executed as a deed, as opposed to a contract, the principles governing the interpretation of contracts apply equally to the interpretation of a deed.[44]
5. The relevant words of the Power of Attorney which this court is required to construe are 'any permanent employee at Liberty Financial ... with the job title of 'Team Leader'. The defendant submits that the Power of Attorney must be construed as applying only to those persons who are permanent employees of Liberty Financial and whose job title with Liberty Financial is team leader.[45]
6. On the plain meaning of the words, an Attorney is any permanent employee at Liberty Financial with the title of 'Team Leader'. Mr Mercieca is a permanent employee of Liberty Financial and has the title of team leader with Assured Credit, a subsidiary within the Liberty Group, as is Liberty Financial. There is nothing in the language of the Power of Attorney, properly construed, that points to the limitation that the attorney must be a team leader with Liberty Financial, as opposed to a team leader with an entity within the Liberty Group. The proviso is that the attorney must be a permanent employee of Liberty Financial.
7. It is important to construe the Power of Attorney having regard to the whole of the instrument. The Power of Attorney is granted by the plaintiff, a subsidiary of the Liberty Group, to permanent employees of Liberty Financial, also a subsidiary of the Liberty Group.
8. Add to this the objective evidence of background facts which provide context as to the genesis of the Power of Attorney. It is the undisputed evidence of Mr Mercieca that the Liberty Group consists of the following subsidiaries and the role that each subsidiary has within the Liberty Group:

(1) the plaintiff is responsible for funding all loans;[46]

(2) Liberty Financial is responsible for the day to day operations of the all entities within the Liberty Group - including employing staff;[47]and

(3) Assured Credit is responsible for managing the loans provided by the plaintiff and to act on the plaintiff's behalf to collect loans and commence legal proceedings if required.[48]

1. Taking all of these factors into consideration, it is clear that the proper construction of the Power of Attorney is not the one contended by the defendant. Properly construed, Mr Mercieca, is an attorney of the plaintiff pursuant to the Power of Attorney, because he is a permanent employee of Liberty Financial with the title of team leader with an entity within the Liberty Group.
2. Further, this construction of the Power of Attorney accords with the principle of construction that an instrument should be construed as to avoid it giving rise to commercial inconvenience.[49] It would be commercially inconvenient for only a team leader within Liberty Financial to be able to depose to relevant matters, given that is not the entity within the Liberty Group responsible for managing and enforcing loans made by the plaintiff.
3. As a properly appointed attorney of the plaintiff, I am satisfied that Mr Mercieca did have authority to depose to the matters contained in his affidavits on behalf of the plaintiff. The defendant has failed to demonstrate that he has an arguable defence on the basis that Mr Mercieca did not have the requisite authority of the plaintiff.

Was the plaintiff required, acting properly, to consent to a demolition of the house on the Property?

1. On 18 September 2019, the defendant received a notice from the City of Stirling (City of Stirling Notice). The defendant submits that the City of Stirling Notice advised that the house on the Property was unfit for human habitation and was required to be demolished, if not secured.[50] The defendant says he had to meet the legal obligation of City of Stirling.
2. The defendant submits that cl 3.2(b) of Mortgage Provisions is inconsistent with cl 6.1 of the Mortgage Provisions. The defendant submits that cl 6.1 must be read as being subject to cl 3.2(b).[51]
3. The relevant Mortgage Provisions are:[52]

(a) give us any order or notice from an authority, such as the local council, or a governing body concerning the use or condition of the property (or the shared property, if it is part of a shared scheme) as soon as you become aware of it; and

(b) comply with all laws and requirements of authorities and your other obligations in connection with the property; ...

6.1 You must get our consent and all necessary approvals from authorities (and the governing body if the property is part of a shared scheme) before you carry out or permit works, or enter into a contract to carry them out.

1. The plaintiff submits that the City of Stirling Notice does not require the house on the Property to be demolished.
2. The City of Stirling Notice states:[53]

The property is unsecure, in disrepair, has evidence of squatter activity, an accumulation of material, including excrement and putrescible waste and pest activity.

In view of the condition of the property the City has decided to issue a notice under the Health (Miscellaneous Provisions) Act 1911 declaring the property UNFIT FOR HUMAN HABITATION (effective immediately).

If the property is not to be demolished in the immediate future then it should be effectively secured to prevent entry.

...

CITY OF STIRLING

HEALTH (MISCELLANEOUS PROVISIONS) ACT 1911

NOTICE

...

TAKE NOTICE that the CITY OF STIRLING ...

HEREBY DECLARES that the house [on the Property] is UNFIT FOR HUMAN HABITATION by reason of the matters specified in the Second Schedule hereto and directs that the said house shall not after the 18 September 2019 be inhabited or occupied by any person.

...

SECOND SCHEDULE

The dwelling is damaged and fittings and fixtures for the kitchen and bathroom are in a condition not fit for use. Wastewater is not draining away to sewer from fixtures in the bathroom. There is an accumulation of disused material, excrement and putrescible waste within the dwelling. Electricity is not connected to the dwelling. There is a significant amount of cockroaches within the dwelling.

1. The arguable defence relied upon by the defendant that the plaintiff was obliged to consent to a demolition of the house on the Property in the face of a lawful requirement to do so by the City of Stirling is based upon a fundamentally flawed premise: that is, that there was such a lawful direction. There was not. The City of Stirling Notice does not require the demolition of the house on the Property. The City of Stirling Notice declares the house on the Property unfit for human habitation and requires that it be secured (after removing waste and undertaking pest control treatment). The defendant has not demonstrated that he has an arguable defence on this ground.

Has the plaintiff waived its right to rely upon the defendant's default of the Loan Agreement Terms and Conditions by accepting payments towards the Mortgage?

1. The defendant submits that he informed the plaintiff of the demolition of the house on the Property by email on 10 February 2022.[54] At the hearing of the application, the defendant submitted that the plaintiff became aware of the demolition in late November 2021 when he orally advised them of it during a telephone conversation.[55] However, as will become apparent, nothing turns on the date upon which the plaintiff became aware of the demolition of the house on the Property.
2. The defendant submits that notwithstanding the plaintiff having knowledge of the demolition of the house on the Property, the plaintiff continued to accept payment from him towards the Mortgage. The defendant says that by accepting payments towards the Mortgage, the plaintiff has waived its right to rely upon the default of the Loan Agreement Terms and Conditions.
3. In order for a party's conduct to constitute waiver, the waiver must be clear and unequivocal, and the other party must have altered its position in reliance on it. [56]
4. The plaintiff sent a notice of default to the defendant as a result of the demolition of the house on the Property (to his New Zealand address) on 10 October 2022.[57] Even on the best case for the defendant, this was only 10 months after the plaintiff first became aware of the demolition. In the interim, there is no evidence that the plaintiff engaged in any clear and unequivocal conduct that is capable of giving rise to a waiver on the part of the plaintiff. Even if there was evidence before the court that the defendant had made payments towards the Loan after February 2022 (which there is not),[58] acceptance of payments towards a mortgage is not sufficient to establish a waiver.[59] I am satisfied that the defendant has not demonstrated cause that he has an arguable defence on this ground.

Is the clause in the Mortgage Provisions requiring consent for demolition unjust?

1. The defendant says that cl 7.1(b) of the Loan Agreement Terms and Conditions and cl 6.1 of the Mortgage Provisions are unjust.
2. The defendant says that it is open to the court to re-open an unjust transaction and that there are good prospects that a court would find that the clauses relied upon by the plaintiff are unjust and re-write them.[60] The defendant referred to matters set out in s 76(2) of the National Consumer Credit Protection Act 2009 (Cth):
   1. Court may reopen unjust transactions

...

Matters to be considered by court

(2) In determining whether a term of a particular credit contract, mortgage or guarantee is unjust in the circumstances relating to it at the time it was entered into or changed, the court is to have regard to the public interest and to all the circumstances of the case and may have regard to the following:

(a) the consequences of compliance, or noncompliance, with all or any of the provisions of the contract, mortgage or guarantee;

(b) the relative bargaining power of the parties;

(c) whether or not, at the time the contract, mortgage or guarantee was entered into or changed, its provisions were the subject of negotiation;

(d) whether or not it was reasonably practicable for the applicant to negotiate for the alteration of, or to reject, any of the provisions of the contract, mortgage or guarantee or the change;

(e) whether or not any of the provisions of the contract, mortgage or guarantee impose conditions that are unreasonably difficult to comply with, or not reasonably necessary for the protection of the legitimate interests of a party to the contract, mortgage or guarantee;

(f) whether or not the debtor, mortgagor or guarantor, or a person who represented the debtor, mortgagor or guarantor, was reasonably able to protect the interests of the debtor, mortgagor or guarantor because of his or her age or physical or mental condition;

(g) the form of the contract, mortgage or guarantee and the intelligibility of the language in which it is expressed;

(h) whether or not, and if so when, independent legal or other expert advice was obtained by the debtor, mortgagor or guarantor;

(i) the extent to which the provisions of the contract, mortgage or guarantee or change and their legal and practical effect were accurately explained to the debtor, mortgagor or guarantor and whether or not the debtor, mortgagor or guarantor understood those provisions and their effect;

(j) whether the credit provider or any other person exerted or used unfair pressure, undue influence or unfair tactics on the debtor, mortgagor or guarantor and, if so, the nature and extent of that unfair pressure, undue influence or unfair tactics;

(k) whether the credit provider took measures to ensure that the debtor, mortgagor or guarantor understood the nature and implications of the transaction and, if so, the adequacy of those measures;

(l) whether at the time the contract, mortgage or guarantee was entered into or changed, the credit provider knew, or could have ascertained by reasonable inquiry at the time, that the debtor could not pay in accordance with its terms or not without substantial hardship;

(m) whether the terms of the transaction or the conduct of the credit provider is justified in the light of the risks undertaken by the credit provider;

(n) for a mortgage-any relevant purported provision of the mortgage that is void under section 50;

(o) the terms of other comparable transactions involving other credit providers and, if the injustice is alleged to result from excessive interest charges, the annual percentage rate or rates payable in comparable cases;

(p) any other relevant factor.

1. The defendant says the cl 6.1 of the Mortgage Provisions is unjust because it is 'hidden away' in the Mortgage Provisions and is only clear when read together with the definition of works.[61]
2. The defendant also submits that the plaintiff has not met the relevant requirements before attempting to enforce a mortgage against a defaulting debtor or mortgagor,[62] specifically the requirement under s 88(1)(b) of the National Consumer Credit Protection Act 2009 (Cth) which provides:
   1. Requirements to be met before credit provider can enforce credit contract or mortgage against defaulting debtor or mortgagor

Enforcement of credit contract

(1) A credit provider must not begin enforcement proceedings against a debtor in relation to a credit contract unless:

(a) the debtor is in default under the credit contract; and

(b) the credit provider has given the debtor, and any guarantor, a default notice, complying with this section, allowing the debtor a period of at least 30 days from the date of the notice to remedy the default; ...

1. The plaintiff submits that the Loan Agreement Terms and Conditions and the Mortgage Provisions are written in plain English and that it is very clear on their terms that a person giving security over a property is not permitted to demolish a house on that property over which security has been given without the consent of the plaintiff.[63]
2. I do not consider that it is unjust for a term within the Mortgage Provisions to refer to a defined term within the Mortgage Provisions. Clause 7.1(b) of the Loan Agreement Terms and Conditions and cl 6.1 of the Mortgage Provisions are written in plain English. I do not consider that a court would find the clauses relied upon by the plaintiff to be unjust and re-write them.
3. Further, for the reasons I have given in relation to effective service of the Default Notice, I am satisfied that the plaintiff has met the relevant requirements for notice under s 88(1)(b) of the National Consumer Credit Protection Act 2009.
4. I am satisfied that the defendant has not demonstrated that he has an arguable defence on these grounds.

Has the plaintiff failed to comply with O 26 r 8 of the RSC by not producing the plaintiff's files to the defendant?

1. The defendant says that the plaintiff's failure to provide documents referred to in the First Mercieca Affidavit, including a valuation report of the Property, is in breach of O 26 r 8 of the RSC and meant that he was unable to properly prepare for the hearing of the application.
2. The plaintiff says that all relevant documents have been provided to the defendant.
3. The documents identified by the defendant as being referred to in the affidavit of Mr Mercieca are, save for the valuation, generic references by Mr Mercieca to a 'review of the plaintiff's records'.
4. In relation to the valuation report, Mr Mercieca deposes:

Based on my inspection of the photos in a valuation report of the Property on the plaintiff's file, I believe the Property is now just vacant land and no-one is in occupation of it.[64]

1. The reference to the 'review of the plaintiff's records' is provided by Mr Mercieca in accordance with the requirement for him to set out the sources or grounds for his statements of information or belief which follow.[65] The defendant does not dispute the facts deposed to by Mr Mercieca based upon Mr Mercieca's review of the plaintiff's files.[66] As for the valuation report, it is the photographs therein that Mr Mercieca refers to and those have been provided by the plaintiff to the defendant.[67] The defendant has not pointed to any prejudice that he suffered as a result of not having any additional documents from the plaintiff.
2. I am satisfied that the defendant has not demonstrated that he has an arguable defence on the basis that the plaintiff has failed to produce documents to him.

Does the plaintiff hold the benefit of the Loan?

1. The defendant submits that it is likely that his Loan has been securitised and therefore, he has an arguable defence on the basis that the plaintiff may be a mere trustee and not hold the benefit of the Loan.[68]
2. The defendant did not further advance this submission at the hearing of the application. Even if there was evidence of securitisation of the Loan before the court (which there is not), a defence proffered on this basis is without foundation. This court has, on numerous occasions, dismissed contentions that a plaintiff does not have a claim based upon grounds of securitisation.[69]
3. The defendant has failed to demonstrate that he has an arguable defence on this ground.

Are the amounts contained in the certificate of outstanding amounts calculated accurately?

1. The defendant submits that the plaintiff is not entitled to the judgment sum plus interest because Mr Mercieca has not deposed how the judgment sum is calculated, there are unexplained charges and the default interest rate does not correlate to statements for the Loan.[70]
2. The plaintiff relies upon the certificate of outstanding monies dated on 25 October 2023[71] in support of the outstanding amount of the Loan and the daily interest rate.
3. Clause 30 of the Mortgage Provisions provides:[72]

We may give you a certificate about a matter or about an amount payable in connection with this mortgage. The certificate is sufficient evidence of the matter or amount, unless it is proved to be incorrect.

1. Further, cl 9.1(c) of the Loan Agreement Terms and Conditions provides that the defendant would pay the reasonable enforcement expenses incurred by the plaintiff[73] and cl 7.5 of the Loan Agreement Terms and Conditions provides that the plaintiff is entitled to claim interest on overdue amounts under the Loan at an additional 2% per annum.[74]
2. There is nothing before the court to suggest that the amount in the certificate of outstanding monies is incorrect. In the absence of such evidence, the plaintiff can rely upon the certificate of outstanding monies to verify the amount outstanding under the Loan and the daily interest rate.[75] The defendant has not demonstrated that he has an arguable defence on this ground.

1. I find that the plaintiff has established a prima facie right to judgment and that the defendant has not shown cause as to why he has an arguable defence. I have a high degree of certainty of the outcome of the proceedings if they went to a trial - the plaintiff would be entitled to judgment. There is no other reason why there should be a trial and none has been suggested.
2. I therefore make orders as follows:

(1) Possession of Lot 69 on Plan 9344 being the whole of the land described in Certificate of Title Volume 256 Folio 43A, the address of which is 32 Finchley Crescent, Balga Western Australia;

(2) Payment of the sum of $510,984.56 as at 25 October 2023; and

(3) Interest on the sum of $510,984.56 from 25 October 2023 at the rate of 10.67% per annum until the date of payment, being $149.37 per day.

1. There is no reason why costs should not follow the event and therefore, the appropriate order is that the defendant should pay the costs of the action, including the application.

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

[1] Affidavit of Joe George Mercieca sworn 31 May 2023, annexure 'JGM-6'.

[2] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 [99].

[3] Agar v Hyde (2000) 201 CLR 552 [57].

[4] Edenham Pty Ltd v Meares [2016] WASC 301 [17].

[5] Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27; Westpac Banking Corporation v Anderson [2017] WASC 106.

[6] Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109.

[7] First Mercieca Affidavit [19] - [20].

[8] Amended statement of claim filed 20 June 2023 [9] (ASOC).

[9] First Mercieca Affidavit; annexure 'JGM-2', page 21.

[10] First Mercieca Affidavit; annexure 'JGM-5', page 37.

[11] First Mercieca Affidavit; annexure 'JGM-6', page 46.

[13] First Mercieca Affidavit; annexure 'JGM-7', page 51.

[14] Second Mercieca Affidavit; annexure 'JGM-12', page 41.

[16] Fourth Garafalo Affidavit [4]; annexure 'JAG-1'.

[18] Plaintiff's Submissions [12] - [13].

[19] First Mercieca Affidavit; annexure 'JGM-3'.

[20] First Mercieca Affidavit; annexures 'JGM-6'. and 'JGM-7'.

[21] Commonwealth Bank of Australia Ltd v Shaddick [2011] WASC 205.

[22] Commonwealth Bank of Australia Ltd v Shaddick [6] - [7].

[23] Gunn v Land Mortgage Bank of Victoria Ltd (1890) 12 ALT 49; Irving v Commissioner of Titles [1963] WAR 67; Yap Cheng See v Challenge Bank Ltd (Unreported, WASC, Library No 970695, 12 December 1997); Hall v Hall [2007] WASC 34.

[24] First Mercieca Affidavit; annexures 'JGM-6' and 'JGM-7'.

[28] First Mercieca Affidavit; annexure 'JCG-2', page 29 - 30.

[29] First Mercieca Affidavit; annexure 'JGM-1', page 13.

[30] Second Mercieca Affidavit; annexure 'JGM-8'.

[37] Second Mercieca Affidavit [10]; annexure 'JMG-8'.

[39] Second Mercieca Affidavit [12] - [14].

[40] Second Mercieca Affidavit; annexure 'JMG-8'.

[41] Electricity Generation Corporation v Woodside Energy [2014] HCA 7; (2014) 251 CLR 640 (Electricity Generation).

[42] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990 (Mount Bruce Mining).

[43] Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337, 352.

[44] Hillboi Nominees Pty Ltd v Evenwood Pty Ltd [2000] WASC 66 [38] - [49]; Westgyp Pty Ltd v Northline Ceilings Pty Ltd [No 2] [2019] WASCA 145 [154].

[45] Defendant's Submissions [20(e)].

[49] Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42(9)].

[51] Defendant's Submissions [23] - [24]'.

[52] Second Mercieca Affidavit; annexure 'JGM-12', page 6 - 37.

[53] First Anand Affidavit; annexure 'MGA 2'.

[54] Defendant's Submissions [25]; First Anand Affidavit; annexure 'MGA4'.

[56] Morton v Suncorp Finance Ltd (1987) 8 NSWLR 325 (Morton); Muranna Park Pty Ltd & Ors v Southern Mortgages Ltd [2017] VSC 222 [63].

[57] First Anand Affidavit; annexure 'MGA 5'.

[58] First Anand Affidavit; annexure 'MGA-8'.

[60] Defendant's Submissions [28] - [29].

[66] See First Mercieca Affidavit [8] - [9], [11], [13].

[67] Second Mercieca Affidavit [31] - [32]; annexure 'JMG-13' and 'JMG-14'.

[69] Westpac Banking Corporation v McLean [2012] WASC 182 [86] - [99]; McLean v Westpac Banking Corporation [2012] WASCA 152 [27] - [31]. See also St George Bank v Hammer (No.2) [2015] NSWSC 953 [34]; Westpac Banking Corporation v Mason [2011] NSWSC 1241; and National Australia Bank v Norman [2012] VSC 14; and Westpac Banking Corporation v Davey [2016] WASC 316 [34].

[70] Defendant's submissions [39] - [42].

[71] Fourth Garafalo Affidavit; annexure 'JAG 1'.

[72] Second Mercieca Affidavit; annexure 'JGM-12', page 43.

[75] Bank of Western Australia v Stein [2005] WASC 43 [40].