Westpac Banking Corporation v Anderson

[2017] WASC 106

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Practice and Procedure
2. › Abuse of process
3. › Successive proceedings
4. › Claims substantially reiterating issues from earlier proceedings against different defendant
5. › Whether abuse of process where no identity of parties
6. › Whether claims should have been raised in earlier proceedings
7. › Extension of Anshun estoppel
1. Practice and Procedure
2. › Summary judgment
3. › Plaintiff's application for summary judgment
4. › No defence to the action
5. › Evidentiary burden on defendant to show triable issue
6. › Where defendant has not adduced evidence of defence
7. › Rules of the Supreme Court 1971 (WA), O 14 r 1
1. Practice and Procedure
2. › Summary judgment
3. › Defendant's application for summary judgment on counterclaim
4. › Counterclaim devoid of content after strike out
5. › Rules of the Supreme Court 1971 (WA), O 16 r 1
1. Practice and Procedure
2. › Strike out
3. › Pleadings disclosing no reasonable ground of defence
4. › Abuse of process
5. › Rules of the Supreme Court 1971 (WA), O 20 r 19(1)(d)

Quick Take

A defence to a mortgagee's possession claim based on statutory unconscionability under s 12CB of the ASIC Act or s 51AC of the TPA requires evidentiary support; mere assertion that default interest rates are excessive, without evidence of the lender's costs and overheads, is insufficient to raise a triable issue. Superiority of bargaining power alone does not establish statutory unconscionability. Claims that substantially replicate issues litigated in earlier proceedings against different defendants may constitute an abuse of process, including where the party could and should have joined the new defendant in the earlier proceedings.