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[2003] SASC 302
procedural. Leave to proceed under s 440D was granted; Westpac’s application for immediate relief was dismissed, with further directions to expedite the action to be considered.
Westpac wanted the court to remove IHL's caveat quickly so it could enforce its mortgage over land. IHL disputed whether the mortgage was valid, alleging fraud and lack of authority. The judge held that those allegations raised substantial factual issues that needed a trial, and Westpac had not shown either urgency or, on the evidence, why the caveat should be removed. IHL's limited affidavit evidence did not change Westpac's burden. The immediate-relief application was dismissed, while the underlying case was to be moved towards trial.
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2,623 words · generated 28/09/2026
Westpac Banking Corporation applied under Rule 25.02 for immediate relief in proceedings against IHL Australia Pty Ltd. Its practical aim was to remove IHL's caveat over Queensland land, enabling Westpac to exercise a mortgage power of sale. Debelle J treated the application as an interlocutory request, not a final determination of whether the mortgage was valid.
2 cited instruments linked from this judgment.
IHL owned land at Broadbeach, Queensland, subject to a mortgage in Westpac's favour. The mortgage secured amounts arising under certain arrangements between IHL and Westpac, including obligations under guarantees [2]. Under a deed dated 26 June 2001, IHL guaranteed amounts owed by Quoin Technology Pty Ltd to Westpac [3]. On 26 June 2002, Westpac demanded $618,807.27, together with interest and $300 in costs. IHL did not pay [4]. The mortgage provided for default where an amount due under a guarantee was unpaid or an administrator or liquidator was appointed, and gave Westpac a power to take possession and sell after default [5]-[7].
The caveat pre-dated the alleged defaults. IHL had lodged it on 14 February 2002, claiming a right to restrain Westpac from exercising an alleged power of sale under security that IHL said it had not executed [8]. The judgment does not determine the ultimate validity of the mortgage or the caveat. It records that IHL did not commence separate proceedings to restrain enforcement or pursue the alleged forgery, and that the liquidator refused Westpac's request to withdraw the caveat [8]-[9].
Westpac commenced this action on 4 December 2002, seeking an order for removal of the caveat. IHL's defence alleged that the mortgage had been executed fraudulently and without authority. It alleged that Booth was not a director or secretary and lacked authority, and that Clifford lacked authority and executed the mortgage for improper purposes [10], [13]. IHL later amended its defence and counterclaimed for orders setting aside the guarantee and mortgage, and for removal of the mortgage entry from the Queensland titles [17].
Westpac sought immediate relief on 23 May 2003 [16]. IHL's evidence in answer was limited. The court admitted only parts of an affidavit from Israel Herzog, including statements about his role and alleged forgery of documentation, with the forgery evidence confined as described by the judge [20]. Debelle J nevertheless treated the weakness of IHL's evidence as distinct from the question whether Westpac had proved its own entitlement to immediate relief [29].
A further administration had commenced on 11 June 2003. The court granted Westpac leave under s 440D of the Corporations Act to proceed, because determining whether Westpac could enforce the mortgage was necessary for the administration. The judge expressly stated that granting leave did not affect the outcome of the application [21]-[22].
The judgment begins with the established principles for Rule 25.02 applications, drawn from South Australian authorities. The procedure is available in urgent cases where the action should not be dealt with in the ordinary trial list. It is suitable for matters without a substantial dispute, or where the dispute can be resolved readily and speedily in chambers. It is not suitable for substantial factual disputes or legal issues requiring extensive argument and consideration [25].
The court found the dispute substantial. IHL's pleaded case put both the execution and authority for the mortgage in issue and alleged fraud. It also alleged that Westpac knew about the asserted lack of authority. Debelle J considered that these questions were neither suitable nor capable of speedy resolution and would require extensive oral evidence and cross-examination [23]-[24]. The judgment therefore did not treat the mortgage defaults as resolving the application. Westpac had established that an event of default had occurred, but could enforce only if the mortgage was valid [28].
The distinction between default and validity was important. IHL's caveat asserted that the security had not been executed by the registered proprietor. Once IHL had pleaded its defence and counterclaim, Westpac knew the grounds on which IHL challenged the security. In the judge's analysis, Westpac could not obtain immediate relief simply by proving an event of default. It also had to establish why the caveat should be removed and address the substance of the defence [28].
Westpac did not do so on the evidence before the court. The judge said that Westpac had adduced no evidence explaining why the caveat should be removed and had not established that IHL's case was without foundation [28]-[29]. The judgment refers to the terms of s 127 of the Queensland Land Title Act 1994 as supporting the conclusion that Westpac bore the onus in this application [29]. The source text does not set out the full text of that statutory provision, so the decision's treatment of it should be read within the specific procedural setting described.
The judge also rejected the suggestion that IHL's inadequate affidavit evidence should itself favour Westpac. IHL had missed court-ordered deadlines, and Herzog's affidavit was only a bare assertion in relevant respects. Debelle J described those matters as concerning. But the application was Westpac's, and the court reasoned that IHL's evidentiary shortcomings did not fill the gap in Westpac's proof [29]. The court did not decide that IHL's allegations were true. It decided that the applicant had not established the basis for immediate relief in the face of those allegations.
Urgency was a separate obstacle. Although the caveat had been lodged in February 2002, Westpac did not commence the action until December 2002 and did not issue the immediate-relief application until May 2003. The possibility that Bank West Ltd, another secured creditor, might sell the land did not establish urgency. The judgment observed that Westpac could take steps to ensure that the priorities between secured creditors were observed [26]. Westpac instead relied on the contention that there was no serious issue to be tried [27]. That contention failed because the defence raised substantial factual issues and Westpac had not addressed them with evidence.
Finally, the judge applied the caution required before summary or final judgment. Citing Fancourt v Mercantile Credits Ltd and Webster v Lampard, the judgment states that summary judgment must be exercised with exceptional caution and only where it is clear there is no real question to be tried, particularly where disputed facts determine the outcome [31]. In light of the fraud and authority allegations, that caution reinforced the conclusion that a summary procedure was inappropriate.
The judgment presents itself as applying, rather than reformulating, existing South Australian procedural principles. Before this decision, the authorities identified at [25] had established that Rule 25.02 was intended for urgency or for disputes capable of quick and effective resolution without a trial. The cited cases also recognised that the procedure could be used as an alternative to Rule 25.01 in some circumstances, even without urgency, where the plaintiff said there was no serious issue to be tried. The plaintiff nevertheless bore the onus of establishing that proposition, while a defendant relying on a ground on which it bore the onus had to show that the ground raised an issue for trial [25].
Debelle J applied those principles to a caveat dispute where the plaintiff had proved contractual default but faced a defence disputing whether the security instrument was validly executed. The decision illustrates that proof of default is not necessarily enough to obtain summary relief directed at a caveat. If the security's validity is a live issue, the applicant's case for removing the caveat must engage with that issue [28]-[29].
The judgment also applied the general caution concerning summary judgment stated in Fancourt and repeated in Webster. It did not displace those High Court principles. Rather, it used them to explain why a disputed issue of fact, particularly one involving allegations of fraud and knowledge, made immediate determination inappropriate [31].
The decision's practical contribution is its application of the onus principle to the evidence on this application. A respondent's sparse evidence may be a serious procedural concern, but it does not automatically turn an unsupported application into one fit for summary disposition. The applicant still needs to establish the basis for the order sought [29]. That conclusion is tied to the application and statutory context before the court; the judgment does not purport to decide every case in which a caveat or mortgage is contested.
The decision also separates leave to proceed during administration from the merits of immediate relief. The judge granted leave because the mortgage-enforcement question was relevant to the administration, but stated that leave did not affect the outcome of the Rule 25.02 application [22]. The result was not a final decision against mortgage enforcement. It was a procedural refusal to resolve the contest summarily, with the underlying action to move towards trial [32].
At [25], the court states that the procedure is appropriate where there is no substantial dispute or where the dispute can be resolved readily and quickly in chambers. In plain English, the process is for cases that can fairly be decided without the time and evidentiary demands of a trial. The same paragraph describes the corollary: substantial factual disputes and complex issues requiring extensive argument are not suited to it.
At [23]-[24], the judge says the allegations were serious and required careful examination, including extensive oral evidence and cross-examination. This is not a finding that Westpac committed fraud or that IHL's allegations were correct. It is an assessment that the disputed issues could not responsibly be resolved on the limited material available on the immediate application.
At [28], the judge explains that Westpac had shown an event of default, but that enforcement depended on the mortgage being valid. In plain English, an alleged breach of the mortgage terms could not answer the prior dispute about whether IHL had validly given the security. The plaintiff's application had to address the defence, not simply establish default.
At [29], Debelle J says that relying on the absence of evidence from IHL would be “to put the cart before the horse”. The ordinary-language point is that Westpac had to establish its own case for removing the caveat before shortcomings in IHL's response could matter. The judgment does not excuse IHL's missed deadlines or sparse affidavit; it says those matters did not discharge Westpac's burden.
At [31], the court invokes the need for “exceptional caution” in summary judgment, especially where disputed facts determine the outcome. For practitioners, the passage underscores that a contested factual record can itself make an immediate application unsuitable, even where one party points to a default or a weak opposing affidavit.
At [32], the judge dismisses the immediate-relief claim but says the action should be brought to trial as quickly as possible. The distinction matters: the court rejected the procedure and evidentiary basis used for this application, not the ultimate mortgage claim.
The decision is most directly relevant where a plaintiff seeks summary or immediate relief to remove a caveat, enforce a mortgage, or obtain a similarly consequential order, while the defendant has pleaded a substantive challenge to the instrument on which enforcement depends. The features that mattered here included a pleaded allegation of fraud, an allegation that the signatories lacked authority, and an allegation that the lender knew of the lack of authority [13], [19], [23].
It is also relevant where the applicant has proved one part of its case, such as a contractual default, but has not proved the further proposition necessary for the order sought, such as the validity of the security or the absence of a proper basis for the caveat [28]-[29]. The decision cautions against treating an established default as resolving a genuine dispute about whether the underlying security was authorised.
The procedural context matters. This was an application under Rule 25.02, and the court examined whether there was urgency or whether the dispute could be resolved quickly without a trial [25]-[27]. The judgment should not be detached from that context and treated as a decision on the final merits of the mortgage, guarantee, or caveat.
The case also speaks to applications where the respondent's evidence is weak or late. It shows that those shortcomings can be relevant and concerning, but do not by themselves relieve the applicant of its burden [29]. A lawyer applying the decision would need to examine the pleadings, the precise relief sought, the applicable statutory framework, the evidence actually filed, and whether the asserted dispute genuinely requires trial. The judgment does not specify how every later application should be decided on different evidence or under different procedural rules.
The supplied judgment contains no later judicial treatment of Westpac Banking Corporation v IHL Australia Pty Ltd. It is the 2003 decision itself, and it does not refer to any subsequent cases that applied, distinguished, or criticised its reasoning.
The judgment does identify earlier authorities and explains the propositions it draws from them. These include Bellas v Kipouros, Wicklow Enterprises Pty Ltd v Doysal Pty Ltd, Settlement Wine Co Pty Ltd v National & General Insurance Co Ltd, Lawrence v Griffiths, Addstead Pty Ltd (in liq) v Liddan Pty Ltd, Construction Services Civil Pty Ltd v J & N Allen Enterprises Pty Ltd, Fancourt v Mercantile Credits Ltd, Webster v Lampard and General Steel Industries Inc v Commissioner for Railways (NSW) [25], [31]. It also refers to Macks v Emanuele on jurisdiction [12].
Within the supplied text, Debelle J expressly agrees with the observations in Addstead [25]. The judgment uses the other authorities as sources for the principles it summarises or applies, but does not provide enough information to describe later treatment of this 2003 decision. Any account of subsequent citations or the decision's current status would require materials outside the judgment supplied here.
The principal question left open is the final validity of the mortgage and guarantee. The judgment does not decide whether Booth or Clifford had authority, whether fraud occurred, whether Westpac knew of any lack of authority, or whether any statutory or equitable argument would affect enforceability. It records Westpac's reliance on ss 126 and 128 of the Corporations Law and its alternative claim to an equitable mortgage, but does not determine those issues [19].
The judgment also leaves the ultimate status of the caveat unresolved. Its reasoning concerns whether Westpac had established a basis for removing the caveat summarily. It does not finally determine the proprietary interest claimed by IHL or whether, after trial, the caveat should remain or be removed.
The court did not resolve the evidentiary merits of IHL's case. It described the affidavit evidence as sparse and expressed concern about missed procedural deadlines, but concluded that Westpac had not met its own burden [29]. The trial would need to determine what evidence supported the allegations and whether the pleaded facts could be established.
Further questions concern the legal effect of s 127 of the Queensland Land Title Act 1994 in the circumstances. The judgment states that the terms of that section placed the onus on Westpac for this application [29], but the provided text does not reproduce the section or explore its operation beyond that conclusion. The precise interaction between that provision, the caveat procedure and the substantive mortgage dispute is therefore not fully set out in the judgment.
Finally, the judgment does not set out the later case history, any trial result, or how other courts have treated its reasoning. Its stated disposition is limited: immediate relief was dismissed, and the action was to be expedited towards trial [32].
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WESTPAC BANKING CORPORATION v IHL AUSTRALIA PTY LTD (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED)
1 DEBELLE J By application dated 23 May 2003, the plaintiff applies pursuant to Rule 25.02 for immediate relief. I will refer to the plaintiff as "Westpac" and to the defendant as "IHL".
2 I set out the facts leading to this application. IHL owns land at Broadbeach in Queensland. The land is subject to a mortgage in favour of Westpac as mortgagee. The mortgage secures, among other things, payment of all amounts referred to in any "lender arrangement" which includes any agreement to which IHL and Westpac are parties or under which obligations arise from IHL to Westpac.
3 By a Deed of Guarantee and Indemnity dated 26 June 2001, IHL has guaranteed that it will pay Westpac all monies owed to Westpac by a company called Quoin Technology Pty Ltd ("Quoin Technology") which had been demanded by Westpac.
4 On 26 June 2002 Westpac demanded payment from IHL of the amount of $618,807.27 then due and owing by Quoin Technology to Westpac together with interest and the sum of $300 being the cost incurred by Westpac in connection with the demand. IHL failed to pay the money demanded by Westpac.
5 Pursuant to clause D2 of the mortgage, IHL is in default under the mortgage if
(a) IHL does not pay any amount due under the guarantees; or
(b) an administrator or liquidator of IHL is appointed.
Pursuant to clause D3 of the mortgage, at any time after IHL is in default, Westpac is entitled to take possession of and sell the land.
6 On 5 August 2002 Mr G L Stuckey was appointed administrator of IHL. On 2 September 2002 the creditors of IHL resolved that IHL be wound up and that Mr Stuckey be appointed liquidator.
7 Westpac, therefore, asserts that IHL is in default under the mortgage so that it is entitled to exercise the power of sale under the mortgage. IHL is in default, if for no other reason than that an administrator has been appointed. It was again in default upon the appointment of a liquidator.
8 Meanwhile, on 14 February 2002, IHL had lodged a caveat forbidding the registration of any interest affecting the land until the caveat is withdrawn. The ground on which IHL lodged the caveat is that
"[IHL] is entitled to restrain an alleged mortgagee, Westpac Banking Corporation from exercising an alleged power of sale under a security which the registered proprietor says it did not execute."
Since lodging the caveat, IHL has not instituted any action to restrain Westpac from exercising its power of sale pursuant to the mortgage nor has it instituted any other legal proceedings in respect of the alleged forgery. There is no explanation on the part of IHL for its failure to institute any proceedings. However, it is reasonable to infer that it has not done so by reason of the fact that Westpac has not instituted proceedings to remove the caveat and that IHL has been in financial difficulty. No other reason has been advanced.
9 On 18 September 2002 Westpac asked Mr Stuckey, the liquidator of IHL, to remove the caveat. By letter dated 21 October 2002, Mr Stuckey refused to do so and set out the reasons for his decision. It is unnecessary to examine those reasons. I am satisfied that Mr Stuckey was not acting contumaciously.
10 Westpac wishes to exercise its power of sale. On 4 December 2002, it commenced this action seeking an order that the Registrar of Titles in Queensland remove the caveat. The statement of claim pleads the facts set out above, that is to say, the mortgage, the alleged default of IHL and the alleged entitlement of Westpac to exercise its rights under the mortgage and to sell the land. The statement of claim pleads that IHL lodged the caveat and the terms of the caveat and asserts that IHL did execute the mortgage and that it was not entitled to lodge the caveat. Beyond that, the statement of claim does not address the issue of the caveat. Wesptac then seeks an order that the caveat be removed.
11 By notice dated 20 December 2002 Westpac gave notice to IHL and Mr Stuckey as liquidator of the defendant of its intention to sell IHL's land if the default was not remedied.
12 No objection has been taken to the jurisdiction of this Court to make that order. Westpac relies on the reasoning in Macks v Emanuele (1998) 196 LSJS 89. The Registrar of Titles in Queensland does not wish to be joined as a defendant and has stated that he will abide the order of the court.
13 On 20 January 2003, IHL filed a defence in which it alleged that the mortgage was executed in circumstances whereby a fraud was committed upon IHL and that it was executed without the authority of IHL. Briefly stated, the particulars of that allegation are:
• that the mortgage was executed by Messrs C M Clifford and J B Booth;
14 In February 2003 IHL expressed an intention to apply to transfer this action to the Supreme Court of Victoria. On 26 February 2003 it was ordered to issue the application within seven days. It failed to do so. On 14 March, the time to issue the application was extended by a further 14 days. IHL later abandoned the intention to apply to transfer the action.
15 At a directions hearing on 24 April 2003 IHL gave notice of its intention to apply to join Messrs Clifford and Booth, to amend its defence, and to plead a counterclaim. On the same day, Westpac gave notice of its intention to issue a summons seeking immediate relief. I made orders including the following:
"1 The defendant file and serve its amended defence and counterclaim on or before 15 May 2003.
2 The plaintiff be at liberty to file and serve a defence to counterclaim on or before 30 May 2003.
3 The defendant file and serve on the proposed third parties their application to join the proposed third parties including a copy of any proposed third party statement of claim on or before 21 May 2003.
4 That the plaintiff is at liberty to file and serve such application pursuant to section 127 of the Land Titles Act 1994 (Qld) relating to the caveat lodged by the defendant over the whole of the land comprised in Lots 30, 38 and 64 on the Building Unit Plan 102674, being Title Reference numbers 50082904, 50082912 and 50082938.
5 That upon the issue by the defendant of the proposed application to join the third parties, the plaintiff be at liberty to serve upon any proposed third parties a copy of its application referred to in paragraph 4 hereof.
6 That within 14 days after service of the application referred to in para 4 and the affidavits in support thereof, the defendant shall file and deliver such answering affidavits as it may be advised."
16 The next directions hearing was listed for 26 May. By agreement of the parties, it came on for hearing on 27 May. On that occasion the parties reported on some issues. Westpac had on 23 May issued a summons seeking immediate relief pursuant to Rule 25.02. IHL had by then filed its amended defence and counterclaim on 26 May, some eleven days late. IHL had also issued its application to join Messrs Clifford and Booth. That too was late by some five days. The directions hearing was adjourned to 6 June.
17 In its amended defence, IHL gave more detailed particulars as to the fraudulent conduct and the improper purposes of Clifford. In its counterclaim it sought orders that the guarantee and mortgage be set aside, that both be delivered up to IHL and for an order that the Registrar-General of the Lands Titles Office in Queensland be directed to remove the entry of the mortgage from the relevant Certificates of Title. The proper title of this officer in Queensland is Registrar of Titles but nothing turns on that.
18 On 6 June I made some orders extending time limits within which IHL could file its defence and counterclaim and issue its third party proceedings. IHL had not by then filed an affidavit in answer to the plaintiff's claim for immediate relief and I extended the time to do so until 12 June. I ordered the plaintiff's application for immediate relief to be heard on 3 July.
19 On 17 June, Westpac filed its reply to the defence of IHL and its defence to the counterclaim. It pleads, among other things, that the mortgage was granted by Westpac to enable Quoin Technology to obtain an increase in its credit facilities with Westpac so that Quoin Technology could fund the operations of IHL. In answer to the allegation of lack of authority, Westpac relies on s 126 and s 128 of the Corporations Law. It further pleads that IHL is estopped from asserting either fraud or lack of authority. However, it does not directly plead to the allegations that Westpac knew that the mortgage had been executed by a person who had no authority to do so, knew that Clifford had guaranteed the same debt and was insolvent and knew that Quoin Technology was also insolvent or was wilfully blind to all of those facts. In the alternative, it alleges that if Clifford and Booth lacked authority, it is entitled to an equitable mortgage.
20 IHL did not file any affidavit in answer to Westpac's claim before 12 June as ordered by me on 6 June. When this application was called on for hearing on 3 July, Mr Slattery, who appeared for IHL, applied to tender an affidavit sworn by an employee of his instructing solicitors which exhibited an affidavit of Mr Israel Herzog sworn on 2 July which had been sent by facsimile transmission to Mr Slattery's instructing solicitors. The affidavit is in these terms:
"I ISRAEL HERZOG of 203 Ingles Street, Port Melbourne, in the State of Victoria, company director, MAKE OATH AND SAY:
1. I am a director of Quoin (Int) Limited the parent company of the defendant.
2. I swear this affidavit in support of the defendant's opposition to the plaintiff's application for summary judgment (by notice for specific directions) dated 23 May 2003.
3. John Berkely Booth ('Booth') was never an authorised signatory of the defendant.
4. The defendant never resolved to enter into the mortgage documents with Westpac.
5. Any documentation purporting to contain an authority to authorise Booth to execute mortgage documentation or guarantees on behalf of the Defendant is a forgery and has never been authorised.
6. I know the facts deposed to in my affidavit of my own knowledge."
I admitted only paragraphs 1, 2, 5 and 6 of the affidavit. Paragraph 5 was admitted to the extent only that it proves the absence of authority of Mr Booth in relation to Quoin (Int) Ltd. It will be recalled that IHL had guaranteed the indebtedness of Quoin Technology. Although Quoin (Int) Ltd is the parent of Quoin Technology, there is no proof that Mr Herzog is a director of Quoin Technology or has any knowledge of its affairs. Thus, the affidavit evidence in support of IHL's opposition to the application by Westpac for immediate relief is extremely sparse.
21 It is necessary to note an agreed fact. It is that on 11 June 2003 IHL went into administration and Mr Anthony Robert Cant was appointed administrator. The appointment was made by Mr Starke as liquidator. The appointment of Mr Cant was confirmed at the first meeting of the creditors held on 17 June 2003.
22 By reason of s 440D of the Corporations Act, Westpac requires leave of the court to proceed with this application. Mr Ross-Smith made an oral application for leave. The application was opposed by Mr Slattery, who appeared for IHL. It is appropriate to grant leave as it is necessary for the purposes of the administration to determine whether Westpac is entitled to enforce the mortgage. However, for the reasons which follow the grant of leave does not affect the outcome of this application.
23 It is apparent from this recital of the facts and of the pleadings that there are substantial questions of fact to be tried. The questions of fact are neither suitable nor capable of speedy resolution. The allegations made by IHL are very serious and require careful examination. They include allegations that Westpac was aware of the lack of authority of Messrs Booth and Clifford. If IHL proves its case, Westpac will not be able to enforce its mortgage and will not be entitled to an order that the caveat be removed.
24 The issues of fact are of a kind which will require extensive oral evidence. The nature of the allegations and, in particular, the allegations as to fraud and that Westpac knew of the lack of authority suggests that there will be a number of witnesses and extensive cross-examination. In short, the dispute is substantial and not likely to be readily and speedily resolved.
25 The circumstances in which an application may be made for immediate relief under Rule 25.02 have been examined in a number of decisions. It is sufficient to refer to Bellas v Kipouros (1974) 8 SASR 418; Wicklow Enterprises Pty Ltd v Doysal Pty Ltd (1985) 124 LSJS 225; Settlement Wine Co Pty Ltd v National & General Insurance Co Ltd (1988) 143 LSJS 398; Lawrence v Griffiths (1987) 47 SASR 455 and Addstead Pty Ltd (in liq) v Liddan Pty Ltd [1997] SASC 6727; (1997) 70 SASR 21. Those cases establish the following principles:
(1) The procedure is available in cases of urgency where the plaintiff must show that the action should not be dealt with in the ordinary trial list: Bellas v Kipouros (supra) at 419; Settlement Wine Co Pty Ltd v National & General Insurance Co Ltd (1988) 146 LSJS 150 at 151 and Lawrence v Griffiths (supra) at 486.
(2) The procedure is suitable for disposing expeditiously of cases in which there is not a substantial dispute or in which the nature of the dispute is such that it can be resolved readily and speedily in chambers: Wicklow Enterprises Pty Ltd v Doysal Pty Ltd (supra); Lawrence v Griffiths (supra) at 486 and Settlement Wine Co Pty Ltd v National & General Insurance Co Ltd (supra) at 152.
(3) The corollary of the second principle is that the procedure is not suitable for the resolution of substantial disputes as to the facts and as to issues of law requiring extensive argument and consideration: Wicklow Enterprises Pty Ltd v Doysal Pty Ltd (supra) at 226; Lawrence v Griffiths at 487; Emanuel Management Pty Ltd v Emanuele; Cowell & Ors (unreported, 26 October 1998, Judgment No. S6924). The various mischiefs in not adhering to the principle were listed by King CJ in Wicklow Enterprises Pty Ltd v Doysal Pty Ltd (supra) at 225 - 226.
(4) The procedure is available as an alternative to Rule 25.01 where the summons has not been endorsed in the manner required by Rule 25.01 but the plaintiff considers there is no serious issue to be tried: Bellas v Kipouros (supra) at 419; Settlement Wine Co Pty Ltd v National & General Insurance Co Ltd (supra) at 152. In those circumstances, it is unnecessary to demonstrate urgency: Lawrence v Griffiths (supra) at 486.
(5) The plaintiff has the onus of demonstrating that there is a lack of a serious issue to be tried: Construction Services Civil Pty Ltd v J & N Allen Enterprises Pty Ltd (1985) 121 LSJS 361; Lawrence v Griffiths (supra) at 486.
(6) Where the defendant seeks to raise a ground on which it bears the onus of proof, the defendant must establish that that ground raises an issue to be tried: Settlement Wine Co Pty Ltd v National & General Insurance Co Ltd (supra) per King CJ at 155 and per Legoe J at 166 - 167.
I respectfully agree with the observations of Lander J in Addstead Pty Ltd (in liq) v Liddan Pty Ltd at first instance which on appeal were cited with approval by Perry J at [1997] SASC 6727; 70 SASR 21 at 52:
" The procedure is appropriate in circumstances where a party can establish urgency and the court is able, because the issues can be dealt with expeditiously and because of the nature of the case, the issues are neither complex nor lengthy, to give a decision without the necessity for trial. The procedure should not be adopted to give a party an advantage over the other party, nor for the purpose of one party obtaining priority in the hearing of that party's action over and above the general range of litigants."
26 It will be immediately noted that Westpac has not proved that there is any particular urgency. Although the caveat was lodged on 14 February 2002, Westpac did not commence this action until 4 December 2002. It did not issue the application for immediate relief until 23 May 2003, some 15 months after the caveat had been lodged. Counsel for Westpac submitted that it is likely that the land, the subject of the mortgage, will be sold by Bank West Ltd, another secured creditor of IHL. That does not establish urgency. If the land is sold by a secured creditor, Westpac is at liberty to take steps to ensure that the priorities between secured creditors are observed.
27 Westpac does not rely on urgency. Instead, it contends that it is appropriate to order immediate relief as there is no serious issue to be tried. It relies on its entitlement to enforce its mortgage and the failure of IHL to prove that it has a proper defence.
28 Mr Ross-Smith, who appeared for Westpac, submitted that there could be no serious issue that Westpac was entitled to enforce its mortgage and sell the land by reason of the acts of default on the part of IHL. Certainly, Westpac has established that there was an act of default which would entitle it to enforce its mortgage. However, it could only do so if the mortgage is valid. In other words, Mr Ross-Smith's submission overlooks the effect of the caveat which was lodged before there was any default on the part of IHL and the allegations made in IHL's defence. If Westpac is to succeed in this action, it must prove that it is entitled to an order that the caveat should be removed. It must, therefore, establish that there was no proper ground for lodging the caveat, that is to say, it must establish that the case advanced by IHL is without foundation. Once IHL had filed its defence and later its amended defence and counterclaim, Westpac was apprised of the grounds on which IHL relies. If Westpac seeks immediate relief, it must address the issues raised by the defence and counterclaim. This is a different kind of case from Settlement Wine (supra) in that a substantive defence has been filed and the onus of showing why the caveat should be removed remains on Westpac. As Westpac has not adduced one iota of evidence to prove why the caveat should be removed, it has not discharged that onus.
29 Mr Ross-Smith also contended that the failure of IHL to advance satisfactory affidavit evidence in support of its opposition to Westpac's application for immediate relief should tell against IHL. The recitation of the events in this action demonstrates that IHL has failed to comply with time limits specified by orders of the court for the filing and delivery of pleadings, affidavits and other documents. The affidavit of Mr Herzog constitutes no more than a bare assertion of the alleged forgery and lack of authority. In no respect does he condescend to particulars. The fact that IHL has failed to prove by affidavit the particulars of its defence is a matter for concern. However, it is Westpac which must establish that it is entitled to immediate relief. However, to refer to the absence of evidence from IHL is to put the cart before the horse. Westpac must first prove why it is entitled to an order to remove the caveat. I repeat, Westpac has failed to prove anything other than that it is entitled to enforce its mortgage. There is not one jot or tittle of evidence as to why the caveat should be removed. Given the terms in which s 127 of the Land Title Act 1994 (Q) is expressed, Westpac had the onus of proof. Thus, despite the fact that IHL has failed to file anything other than an affidavit which asserts the forgery and lack of authority, there is no sufficient ground on which to grant Westpac the relief it seeks.
30 This application demonstrates that the summons for immediate relief will often be an inappropriate procedure where a defence has been filed and that defence pleads a substantive defence and particularises the grounds of the defence. Unless the plaintiff can demonstrate that he has a prima facie case, the application for immediate relief will, as a general rule, be likely to fail because there will be a substantial dispute to be tried.
31 In reaching this conclusion, I have also had regard to the principle that the power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) HCA 25; (1983) 154 CLR 87 at 99. The effect of that principle was expressed with added emphasis in Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 per Mason CJ and Deane and Dawson JJ at 602 - 603. Their Honours said:
"The power to order summary judgment must be exercised with 'exceptional caution': General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 and 'should never be exercised unless it is clear that there is no real question to be tried': Fancourt v Mercantile Credits Ltd (supra) at 99. ... Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact."
Given the nature of the issues raised in IHL's defence, the court should be very cautious before granting immediate relief. The inadequate pleading in Westpac's statement of claim and Westpac's failure to prove that there is no serious issue to be tried only reinforces that view.
32 For these reasons, it is not appropriate to resolve this matter by way of a summons for relief and I must dismiss the claim. It is, however, appropriate to bring the action to trial as quickly as possible. I will hear the parties on the necessary orders to achieve that end.
WESTPAC BANKING CORPORATION
IHL AUSTRALIA PTY LTD
(1974) 8 SASR 418
(1987) 47 SASR 455
(1997) 70 SASR 21
(1983) 154 CLR 87
(1993) 177 CLR 598
(1964) 112 CLR 125
Leave to proceed under s 440D was granted; Westpac’s application for immediate relief was dismissed, with further directions to expedite the action to be considered.