Westlawn Finance Limited v A.C.N. 616 658 505 Pty Ltd (No 3)

Representation: Counsel:
Solicitors:
J R Tarrant, Westlawn Finance Limited (Plaintiff)
Mr B Strangio (First, Second and Third Defendants)

File Number(s): 2024/00232337

JUDGMENT – ex tempore

1. When the matter came before the Court today to hear Westlawn Finance Ltd’s application for orders stating the amount of the summary judgment, Mr Strangio appeared by way of telephone with leave. He was further given leave to appear on behalf of the first and second defendants as a director of those companies.

2. Mr Strangio made a number of applications. There was no formal Notice of Motion before the Court in relation to the applications. The Court treated them as applications made under Part 18.2 of the Uniform Civil Procedure Rules 2005 (NSW), being oral applications. The oral applications were:

3. For the dismissal of the Statement of Claim, as there was no basis for it, as there was no authority to give the authorisation for it;

4. That Ms Tarrant, solicitor, had no authority to give the oral evidence on behalf of the plaintiff on 5 June 2025;

5. That the Court should report Ms Tarrant to the Law Society for inappropriate conduct; and

6. That the Court should stay the orders made on the summary judgment.

7. In relation to the fourth matter, I have considered, following a determination of the quantum of the summary judgment, an application to stay made by the defendants, and I have made an order staying the orders until 5pm on 7 July 2025. That deals with the fourth matter.

8. In relation to the third matter, on the basis of the material before me, I see no proper basis for referring Ms Tarrant to the Law Society. She appears, from her affidavits, to be acting with authority. This does not prevent the defendants, or one of them, from making some sort of formal complaint if they are so advised. Accordingly, I will not proceed to make a formal referral of Ms Tarrant.

9. The second application before me relates to the question of authority. I have already indicated that, in relation to the Statement of Claim, Mr Kumar has sworn an affidavit dated 24 June 2024 as Collections and Recoveries Manager, stating that he has authority to make the affidavit on the plaintiff’s behalf. That authority extends to the affidavit asserting, in paragraph 2, his belief that the allegations of fact in the Statement of Claim are true.

10. The allegations in the Statement of Claim are the matters essentially relating to the documents which were considered by the Court in some detail in its judgment dated 5 June 2025. On the basis of that material, it appears that there was authority for Mr Kumar.

11. Secondly, I accept Ms Tarrant’s assertion that she has authority in her 6 June 2025 affidavit.

12. The second application by Mr Strangio’s was that Ms Tarrant did not have authority to give the oral evidence which she gave on 5 June 2025, as to the belief of the plaintiff as to the amount claimed. This was raised as an aspect needing to be established under Part 13.1 of the Uniform Civil Procedure Rules by me on 5 June 2025. Ms Tarrant sought an adjournment, and then came back to the Court stating she had authority, and gave oral evidence to that effect. On the basis of that evidence, the Court was satisfied of that aspect. There is no material before me which satisfactorily establishes anything other than the authority asserted by Ms Tarrant.

13. The next application made is the first application for the dismissal of the Statement of Claim proceedings as there being no basis for the proceedings. Having regard to the material in Exhibit B before me on 5 June 2025, it would appear that the matters asserted in the Statement of Claim have a proper basis. It is also the fact that Mr Kumar, in his affidavit verifying, has asserted that, in his belief, the allegations of fact in the Statement of Claim are true.

14. On the basis of the matters put before me by Mr Strangio today, I do not regard there being a proper basis for the application made.

15. Accordingly, I make the following orders:

In relation to the oral applications made by the defendants under Part 18.2 of the Uniform Civil Procedure Rules 2005 (NSW):

1. The Court declines to dismiss the Statement of Claim.

2. The Court declines to refer Jessica Rose Tarrant to the Law Society of New South Wales.

3. The Court declines to find that the Statement of Claim was filed without authority.

4. In his oral submissions, Mr Strangio indicates that, on 4 to 5 June 2025, he forwarded to the Court numerous authorities which were not taken into account by the Court in its 5 June 2025 reasons. I have referred to these authorities in paragraph 13 of my reasons for decision of 5 June 2025.

5. It was not clear to me precisely why these authorities were relied on. I have looked at them. A number of the authorities require that there be a clear case for a summary judgment. That is clear law, and in the course of my judgment, I referred to authorities of the New South Wales Supreme Court at first instance and on appeal, and of the High Court, stating those same principles. Those authorities relied upon did not, in my view, refer to any different statements of principle.

6. There were two authorities relating to the use of the Electronic Transactions Act 2011 in Western Australia in the context of an extension of a caveat: Prospa Advance Pty Ltd v Tasou [2024] WASC 359; Bizcap A**u Pty Ltd v Sharma [2024] WASC 198. These cases did not appear to be relevant to the issue of the authority under the chattel mortgages for the documents to be signed electronically by the defendants.

7. There was also the High Court authority of Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549, which is one of the main authorities relating to guarantees. It was not clear on what basis that was relevant, and I was satisfied on all of the evidence that the guarantees were executed as alleged.

8. In my view, none of those authorities impacted relevantly upon the principles which I took into account. This Court is entitled to take into account the binding authority in the New South Wales Court of Appeal and the High Court, and also judgments of the Supreme Court at first instance, where they stand for the same principles. There was no other or later case from the New South Wales Court of Appeal or the High Court referred to me by the parties which differed in relation to the principles applied.

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