Federal Court of Australia

Clark v Commonwealth Bank of Australia [2026] FCA 940

ORDERS

THE COURT ORDERS THAT:

1.    The proceedings are dismissed.

2.    The applicant pay the respondent's costs of the proceedings in a lump sum amount to be determined by a Registrar.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Susan Clark is the sole director and shareholder of Shada Pty Ltd. In 2010, Shada entered into a loan agreement with the Commonwealth Bank of Australia. Ms Clark signed the agreement as the sole director of Shada. It provided for a loan amount of $522,000. Security for the loan was required to be provided by way of registered mortgage over each of two properties and also by a guarantee to be provided by Ms Clark.

2    At the time of entry into the loan agreement, Ms Clark executed a deed of guarantee in favour of the Bank in respect of all amounts owing by Shada to the Bank under the loan agreement. The deed of guarantee required a supporting security to be provided by way of registered mortgage over a property in Mosman Park in Western Australia. It was one of the two properties required by the loan agreement to be provided by way of security for the loan to Shada. The Mosman Park property was also identified in the deed of guarantee as the residential address for Ms Clark. The loan amount was advanced to Shada.

3    In October 2024, the Bank brought proceedings against Shada and Ms Clark in the Supreme Court of Western Australia to recover the balance of the loan. On an application for summary judgment, orders were made that judgment be entered in favour of the Bank against Ms Clark requiring payment to the Bank of almost $550,000 plus interest at the rate specified in the guarantee and mortgage over the Mosman Park property and for possession to be given of the Mosman Park property to the Bank: Commonwealth Bank of Australia v Shada Pty Ltd [2025] WASC 200 (Gething J).

4    Ms Clark brought an appeal against the summary judgment. The appeal was dismissed on the basis that none of the grounds of appeal had reasonable prospects of succeeding: Clark v Commonwealth Bank of Australia [2025] WASCA 127 (Mitchell and Vaughan JJA).

5    It appears that Ms Clark had entered into a mortgage of the Mosman Park property in favour of the Bank in 2007 (Mosman Park Mortgage), some years before signing the deed of guarantee. In the Supreme Court proceedings, the Bank claimed the Mosman Park Mortgage provided by Ms Clark secured the guarantee in respect of the loan to Shada. It was the Mosman Park Mortgage that was the basis for the order for possession.

6    In the Supreme Court proceedings, it was determined that the Mosman Park Mortgage secured any monies owing to the Bank by Ms Clark as guarantor and that the deed of guarantee provided expressly for the Mosman Park Mortgage to cover the guarantee provided under the deed of guarantee. In those proceedings, four defences were identified as being advanced by Ms Clark, namely:

(1)    The Bank did not claim to be the true lender of the money;

(2)    The Bank could not enforce the agreements the subject of the action as it had not complied with the National Credit Code which was said to apply to the loan agreement and the guarantee;

(3)    The Mosman Park Mortgage could not be enforced as the Bank had not complied with provisions of the Transfer of Land Act 1893 (WA) (it being unclear as to which of the Act's provisions were said not to be complied with);

(4)    The debt the subject of the Bank's claim could not be enforced because it has not been registered in the Personal Property Security Register, being a register maintained pursuant to the requirements of the Personal Properties Securities Act 2009 (Cth).

7    On appeal, in addition to advancing grounds of appeal alleging error in the decision by the primary judge, Ms Clark also alleged that the decision of the primary judge was affected by bias and that the Supreme Court lacked jurisdiction.

8    Ms Clark conducted the Supreme Court proceedings on her own behalf. After the Supreme Court proceedings had concluded, solicitors acting for Ms Clark commenced proceedings in this Court claiming that the 'instrument' entered into between Shada and the Bank was 'invalid and unenforceable'. By those proceedings, Ms Clark sought a declaration to the effect that the loan agreement between Shada and the Bank was invalid, unenforceable or void ab initio and an order requiring the Bank to give restitution of all loan repayments made by Shada to the Bank.

9    The Bank brought an application for summary judgment on the grounds that (a) the application has no reasonable prospects of success; (b) no reasonable cause of action is disclosed by the application; and (c) the proceeding is an abuse of process. The Bank identified a number of assertions as being raised by Ms Clark's application. The claim by Ms Clark to restitution was characterised by the Bank as being premised on success as to one or more of those assertions. The Bank contended that as there was no basis upon which the other assertions raised by the application could succeed it must follow that there was no basis for any claim to restitution.

10    Speaking generally, the Bank relied upon principles of estoppel and abuse of process as the main basis for its summary judgment application. It contended, in substance, that by reason of the conduct and conclusion of the Supreme Court proceedings those principles were a complete answer to the application by Ms Clark in this Court. There was no substantive dispute between the parties as to those principles. For present purposes they may be stated briefly as follows:

(1)    A party to proceedings that have been determined is precluded from raising in a subsequent proceeding any ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment (issue estoppel): Blair v Curran [1939] HCA 23 (1939) 62 CLR 464 at 510 (Starke J), 531-533 (Dixon J);

(2)    A party is also precluded from raising a claim or issue in a proceeding if that claim or issue was so connected with the subject matter of a previous proceeding as to make it unreasonable in the context of that previous proceeding for the claim not to have been made or the issue not to have been raised in that proceeding (Anshun estoppel): Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; and

(3)    A party is also precluded from using the procedures of the court in a way that would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute having regard to what has occurred in previous proceedings (abuse of process): Walton v Gardiner (1993) 177 CLR 378 at 393.

See also, Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 at [20]-[26] (French CJ, Bell, Gageler and Keane JJ), Clayton v Bant [2020] HCA 44; (2020) 272 CLR 1 and Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 at [398]-[399] (Wheelahan J, Wigney and Abraham JJ agreeing).

11    Recently, Gageler CJ described the relationship between issue estoppel and abuse of process in the following terms (Mayfield Development Corporation Pty Ltd v NSW Port Operations Hold Co Pty Ltd [2026] HCA 12 at [63]-[64]):

Although the doctrine of abuse of process is informed, in part, by similar considerations of finality and fairness as issue estoppel, it is "inherently broader and more flexible than estoppel". As Mason CJ said in Rogers v The Queen: "there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute".

The legal process of a court may be abused where the intention is to "litigate anew a case which has already been disposed of by earlier proceedings", where to do so causes manifest unfairness to a party or would otherwise bring the administration of justice into disrepute. "[M]aking a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel". Similarly, "making such a claim or raising such an issue can constitute an abuse of process", even "where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel".

(Footnotes omitted).

12    In addition to reliance on the above principles, the Bank also advanced submissions as to the alleged lack of merit in aspects of the claims that Ms Clark seeks to raise in this Court to support a contention that the proceedings disclosed no reasonable cause of action.

Ms Clark's position on the summary judgment application

13    The position put by Ms Clark was to the effect that the claims that she sought to raise in this Court were fresh matters of a kind that could now be raised without falling foul of the various principles concerned with ensuring that controversies are quelled and disputes are not multiplied.

14    In considering an application for summary judgment of the kind advanced by the Bank, the Court is not confined to the precise terms of the application and affidavits that have been filed. It must take account of the possibility that the claims advanced in support of the application might be formulated in a manner that would not be met by the principles relied upon by the Bank. The Court will also be alive to the possibility that the application of those principles may depend upon the resolution of factual disputes of a kind that are appropriately considered after a trial. Further, in the present case, counsel for Ms Clark appeared to maintain that the Banks' six assertions did not capture all aspects of the case that Ms Clark sought to advance in this Court.

15    For those reasons, rather than confine consideration to the terms in which the claims are expressed in the application filed by Ms Clark, I will address the matters raised in the course of written and oral submissions for Ms Clark as the basis upon which it was contended that the present proceedings were not (a) an attempt to reagitate issues that have been adjudicated by the Supreme Court proceedings; or (b) advance claims that could and should have been raised in those proceedings; or (c) an abuse of the Court's process.

Claims based upon the National Credit Code

16    It appeared to be accepted that an issue determined by the Supreme Court proceedings was that the National Credit Code did not apply to the loan agreement between Shada and the Bank. However, it was contended for Ms Clark that the Supreme Court proceedings did not consider whether the Bank's conduct in preparing and presenting the loan agreement (referred to in submissions as the 'consumer credit contract') was in breach of the National Credit Code. That is to say, there was an attempt to draw a distinction between the application of the Code to the loan agreement (on the one hand) and the application of the Code to the dealings between the Bank and Shada before entry into the loan agreement (on the other hand).

17    Based on that distinction, a submission was advanced that Ms Clark could now bring a claim that relied upon s 13 of the National Credit Code. Section 13 is concerned with the effect of a declaration made by a debtor before entry into a credit contract as to matters that are relevant to the application of the Code. Section 13(2) gives presumptive effect to a declaration made by a debtor before entering in a contract that the credit to be extended to the debtor is to be applied wholly or predominantly for a purpose that is not a Code purpose. However, s 13(3) goes on to provide that the declaration is ineffective if the credit provider knew or had reason to believe (or would have known or had reason to believe if reasonable inquiries had been made) that the credit was to be applied wholly or predominantly for a Code purpose.

18    As has been mentioned, in the Supreme Court proceedings, the proposition that the loan agreement was regulated by the Code was rejected. However, before the primary judge in the Supreme Court proceedings, the Bank had advanced a contention to the effect that, even if the Code applied, there was no matter raised by Ms Clark that would give rise to an arguable defence to the Bank's claim. As to that contention, the primary judge found (Shada at [48]):

[The Bank] further submits that, even if the Loan Agreement, the Guarantee or the Mortgage were regulated by the National Credit Code, Ms Clark has not given any evidence of any issue arising under the National Credit Code that would give rise to an arguable defence to its claim. I agree.

19    Given that Ms Clark had raised a claim that the Code did not apply and the Bank had advanced a position in support of its application for summary judgment to the effect that there was no evidence of any issue arising under the Code, there is either an Anshun estoppel or it would be an abuse of the Court's process for Ms Clark to now seek to articulate some form of claim based upon s 13 of the Code. It would be unjustifiably oppressive for the Bank to have conducted the Supreme Court proceedings (both before the primary judge and on appeal) on the basis that it claimed that the monies were due under the terms of the deed of guarantee and the Mosman Park Mortgage and by seeking to meet any defence based upon the Code, only to have Ms Clark commence new proceedings seeking to rely upon the Code as a basis for claiming that no monies were owing to the Bank and therefore no amounts were due.

20    In any event, there is a fundamental difficulty with the nature of the claim that Ms Clark now seeks to raise. It appears to involve some form of allegation to the effect that s 13(3) applied. It relied upon the format of the loan agreement, a copy of which was adduced in evidence on the Bank's interlocutory application. It was entitled 'Your Consumer Credit Contract Schedule'. It commenced with the following:

About your Contract

We are delighted to welcome you as one of our valued customers and look forward to providing you with services that meet your financial needs.

Your contract with us is made up of a number of important documents. Please keep them in a safe place.

The contract documentation includes:

This Schedule - which contains a summary of the consumer credit facility we offer you, the borrower(s).

A Consumer Mortgage Lending booklet - which includes the Usual Terms and Conditions (UTC) for Consumer Mortgage Lending. It contains other information the law requires us to give you before you enter into the Contract.

About the Consumer Credit Code

The Consumer Credit Code regulates all credit transactions for predominantly personal, domestic or household purposes that take place in Australia.

If you are borrowing mainly for business or investment purposes (or both) then you are not protected by the Code. Part F of the UTC does not apply to such loans.

Please note that some of the disclosures we make are based on assumptions we are required to make under the Consumer Credit Code about future events that may not prove to be correct.

Your acceptance

By signing this Schedule you enter into a Contract with us and agree to accept our terms.

21    In an affidavit filed in support of her substantive application, Ms Clark deposed as follows:

Further, Shada is not a natural person or a strata corporation and the [National Consumer Credit Protection Act] Schedule 1, the National Credit Code (NCC) section 5 (1)(a) does not include Shada as it is not a natural person or a strata corporation.

I established Shada as a business investment vehicle. This is its sole purpose and not a code purpose as defined in NCC section 13 subparagraph 3.

Before applying for the loan, I explained to the lender that investment was the purpose of the facility.

22    Therefore, on the evidence of Ms Clark, she established Shada as a business investment vehicle and, before applying for the loan, she explained to the Bank that investment was the purpose of the loan agreement.

23    In those circumstances, the written submission advanced for Ms Clark was as follows:

[The Bank] breached s 13(3):

a.    [Ms Clark] explained to [the Bank] before signing that the facility was for investment purposes…

b.    Despite this, CBA used a Consumer Credit Contract form…containing the s 13 declaration stating the credit was not for investment purposes.

c.    [The Bank] knew (or ought to have known) the true purpose. The declaration was therefore ineffective and [the Code] applied.

24    Respectfully, the logic is impossible to follow. The claim that Ms Clark seeks to advance seems to involve the following steps;

(1)    The loan was not for a Code purpose;

(2)    Ms Clark told the Bank the loan was not for a Code purpose;

(3)    The Bank used a form that applied to loans that were for a Code purpose;

(4)    By reason of the matters in (1) and (2), the Bank knew that the loan was not for a Code purpose;

(5)    Therefore, the Code applied to the loan.

25    The final step does not follow from the first four steps. On the contrary, they lead to the conclusion that the Code did not apply to the loan. The Code only applies to loans for the purposes specified in the legislation. Ms Clark accepts that she told the Bank that the loan was for an investment property (that is, it not for a Code purpose) and that was actually the case. The use of a form that might have been appropriate if the loan had been for a Code purpose does not change the agreed purpose of the loan. The existence of that purpose takes the loan outside the operation of the Code. The nature of the form does not change the purpose.

26    Further, the form provided for the possibility that the Code did not apply by stating 'If you are borrowing mainly for business or investment purposes (or both) then you are not protected by the Code'.

Claim based upon the Mosman Park Mortgage being in respect of a residential property

27    As best as I can understand, Ms Clark seeks to give significance to an alleged fact that the Mosman Park Mortgage was first given as security for a borrowing that was for a Code purpose, namely the purchase of her private residence. On that basis, it was said that the borrowing had a combined personal use and investment use. However, as I have explained, it is the evidence of Ms Clark that the borrowing by Shada (which has given rise to the obligations to the Bank that are in issue) was for investment purposes and that is what she told the Bank.

28    In a further affidavit of Ms Clark relied upon in answer to the Bank's interlocutory application, Ms Clark deposed as follows:

However, as deposed in…the Original Affidavit, the property was in fact acquired for investment purposes… The [Bank] induced Shada Pty Ltd to sign this contract with a false or ineffective declaration, which misled as to the true application of the NCC and the protections available under it. This conduct was likely to mislead Shada Pty Ltd into believing the contract was not subject to NCC requirements, when it was.

29    Ms Clark also deposed as follows concerning the documents that she was asked to sign when she entered into the loan agreement:

These documents were presented to me as a single consumer credit arrangement combining the investment credit ([investment] property) and the residential credit (Mosman Park property) over the two properties. This was deceptive because the form was designed for personal, domestic or household credit (Code purpose), yet the loan was predominantly for investment.

30    To the extent that this affidavit evidence alleged some form of misleading conduct, that aspect is dealt with separately below in considering claims by Ms Clark that the Bank engaged in misleading or deceptive conduct. Otherwise, the statements seem to advance some form of claim to the effect that there was significance in the fact that there had been a borrowing by Ms Clark to purchase the Mosman Park property. The evidence is very confused because it suggests that the documents presented to Ms Clark at the time that she entered into the loan agreement included the Mosman Park mortgage. However, that was not the case because that document was dated 31 October 2007, many years before the Loan Agreement.

31    In oral submissions, claims were made that appeared to be based upon a contention that the borrowing was for two purposes. It is unclear how that could be so when the evidence of Ms Clark was that the amount advanced under the loan agreement was used for investment purposes. What appeared to be argued was that the Mosman Park Mortgage had originally been granted to secure a borrowing that was said to be for a Code purpose and that was said to have significance for the application of the Code to the borrowing the subject of the loan agreement.

32    However, a claim of that kind was squarely considered in the Supreme Court proceedings where it was concluded that the Mosman Park Mortgage could be provided both for a Code purpose and for a non-Code purpose. As was said by the primary judge in those proceedings (Shada at [45], after referring to the terms of the Mosman Park Mortgage):

In my view, the combined effect of these provisions is that the Mortgage can apply to both a secured amount to which the National Credit Code applies and one to which it does not. If, and only if, National Credit Code does not apply, then the terms in Part B take effect.

33    His Honour then concluded (at [47]):

In my view, Ms Clark does not have an arguable defence to [the Bank's] claim based on the fact that the [Mosman Park] Mortgage was initially entered into by her to secure a loan made to her personally, one to which the National Credit Code applies. She agreed to the [Mosman Park] Mortgage being used to secure her obligations under the [deed of guarantee]. This was an express condition of both the [loan agreement and the deed of guarantee].

34    On appeal, it was held that 'neither the loan agreement nor the guarantee was governed by the National Credit Code': Clark at [30]. It was further held (at [33]) as follows:

The primary judge held that, properly construed, the mortgage could apply to a secured amount to which the National Credit Code applied and a secured amount to which the National Credit Code did not apply. We agree. That is the natural and ordinary reading of the provisions reproduced…above. The contrary construction is not open. Once that point is reached the matters advanced by the appellant by way of her pleaded defence go nowhere. If, as the appellant contends, the National Credit Code applies to the transaction, the mortgage operates. Or if, as the bank contends, the National Credit Code does not apply to the transaction, the mortgage also operates.

(Footnote omitted).

35    Therefore, any claim to the effect that the Code does not apply by reason of the purpose of the original borrowing secured by the Mosman Park Mortgage has already been finally determined as part of the issues resolved in the Supreme Court proceedings. It follows that issue estoppel or Anshun estoppel applies to any point of that kind.

Claim of misleading or deceptive conduct

36    As has been mentioned, Ms Clark now seeks to advance a claim of misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law.

37    In written submissions, the following claim was articulated concerning the circumstances in which the personal guarantee was given by Ms Clark to the Bank.

The core misleading conduct was the combination of the investment credit ([investment] property) and the residential credit (Mosman Park property) into one single credit arrangement over the two properties, using a single “Consumer Credit Contract” form…with a s 13 declaration stating the credit was not for investment purposes.

This was deceptive because:

a.    The form was designed for personal, domestic or household credit (Code purpose).

b.    The loan was in fact a mix, predominantly for investment…with a residential component (Mosman Park).

c.    By combining them and using the consumer form with the false declaration, CBA represented the entire arrangement as regulated consumer credit when it was not, or (on CBA’s case) induced the false declaration to avoid the Code.

d.    The Guarantee and Mortgage were tainted by this conduct. The Applicant would not have entered the arrangements or made payments had the true regulatory status been disclosed.

This is classic…misleading conduct in trade or commerce. It induced the mistake for which restitution is now sought.

38    Aspects of this submission seek to give significance to an alleged mix of purposes. At the hearing of the summary judgment application, counsel for Ms Clark confirmed that the borrowing the subject of the loan agreement had been for investment purposes. Therefore, the suggestion that there was some form of mixed purpose to the loan advanced under the loan agreement is not supported by the evidence and was not pressed orally. Further, to the extent that the submission was based upon the circumstances in which the Mosman Park Mortgage had originally been provided (said to be as security for an earlier borrowing for a Code purpose), that aspect has already been addressed.

39    To the extent that the submission is to the effect that there was some form of false declaration provided to the Bank, the submission is not supported by the evidence. As has been mentioned, Ms Clark says that the loan was for investment purposes and that is what she told the Bank. There is simply no basis to put a case that there was some form of declaration made that the Code did not apply when the Code did apply. Indeed, the submission itself recognises that to be so when it says the Bank represented that the entire arrangement was regulated by the Code 'when it was not'.

40    Therefore, it appears that what Ms Clark now seeks to claim is that she was misled into believing that the Code applied even though the loan was for investment purposes. The claim is based on the use of a document that was a consumer credit form and a submission to the effect that its use somehow involved a declaration by Ms Clark that the loan was for a Code purpose when it was not.

41    Particular reliance is placed upon the following statement in the form of loan agreement:

Your acceptance: When you sign this Schedule, you accept our offer, as set out in the Schedule and the UTC, and acknowledge that any Security stated at Item K extends to cover your obligations under the Contract and any land mortgage listed at Item K given by you on or after 13 June 2005 covers all other moneys you owe to us now or in the future on any account which are not subject to the Consumer Credit Code.

42    The reference to 'the UTC' is to 'the Usual Terms and Conditions (UTC) for Consumer Mortgage Lending'.

43    It seems to be suggested that the part of the loan agreement quoted above impliedly represents that the monies to be advanced under the loan agreement are subject to the Code. However, that statement needs to be considered in the context of the statement at the outset of the loan agreement (quoted above) to the effect that if the borrowing is for business or investment purposes then the Code does not provide any protection.

44    Further, precisely how a representation that the Code applies when it did not might form the basis for a claim was not explained. There was no articulation of how a misrepresentation of that kind operated on the actions of Ms Clark and might support the grant of the relief sought, which was in the form of an order requiring repayment to Ms Clark of all the monies that she had paid to the Bank under the terms of the loan agreement. In particular, there was no allegation in terms that if the alleged misrepresentation had not occurred Ms Clark would not have borrowed the money or why the appropriate relief might take the form of an order that the loan agreement is invalid and unenforceable (with the consequence that restitution should be ordered of all monies paid by Ms Clark under its terms).

45    However, even if some form of claim of the kind now alleged might be formulated, in my view it is a claim to which Anshun estoppel must apply and which would also be an abuse of process. It is a claim that seeks to impugn the validity and enforceability of the loan agreement. In the Supreme Court proceedings, the Bank's claim depended upon the validity and enforceability of that agreement. Ms Clark raised defences in the Supreme Court as to why it was not enforceable. She pursued those claims on appeal. None of her defences were accepted. The nature of the claim brought by the Bank was such that any claim to the effect that the loan agreement was invalid could and should have been raised by way of defence. A claim of misleading or deceptive conduct can be raised in that way. What Ms Clark now seeks to do is advance a case that would impugn the very instrument upon which the Bank relied in the Supreme Court proceedings as the basis for the judgment that it obtained. In those circumstances, it would be most unfair to the Bank if Ms Clark, having put the enforceability of the loan agreement in issue, to now raise some further point concerning that issue. Further, it would bring the administration of justice into disrepute if Ms Clark could now be allowed to advance a claim challenging the validity of the loan agreement. It would be a proceeding that sought to undermine a necessary foundation for a judgment of the Supreme Court.

Claim based on failure to register at Landgate

46    Ms Clark claims that s 58 of the Transfer of Land Act required the loan agreement (described by counsel for Ms Clark as a credit arrangement) to be registered in accordance with the provisions of that legislation. Section 58 provides as follows:

No instrument until registered in manner herein provided shall be effectual to pass any estate or interest in any land under the operation of this Act or to render such land liable to any mortgage or charge or to make any dealing in respect of Crown land effective, as the case requires; but upon such registration the estate or interest comprised in the instrument shall pass or as the case may be the land shall become liable in manner and subject to the covenants and conditions set forth and specified in the instrument or by this Act declared to be implied in instruments of a like nature, or the dealing in respect of Crown land is made effective, as the case required.

47    It is common ground that the Mosman Park Mortgage was registered. However, the contention that is sought to be advanced is that the loan agreement (described as 'the underlying Consumer Credit Contract') was required to be registered. As has been mentioned, a claim based upon provisions of the Transfer of Land Act was advanced before the primary judge in the Supreme Court proceedings. His Honour considered a number of provisions to which reference had been made. as to s 58, the primary judge said (Shada at [49]):

…s 58 is mentioned, however, it has no application as the [Mosman Park] Mortgage has been registered.

48    On appeal, the issue was addressed in the context of the claim of bias: at [17]. It was not otherwise the subject of appeal.

49    The attempt to rely on s 58 is both misconceived and an attempt to reagitate an issue that was determined in the Supreme Court proceedings.

50    A related submission was advanced by reference to s 19 of the National Consumer Credit Protection Act. In written submissions it was expressed in the following way for Ms Clark:

[The finding by the Court of Appeal concerning s 19] does not assist [the Bank]. That finding was made in the context of enforceability on the pleadings before that Court; it does not preclude this Court from considering the statutory exception in [s 19], where the Consumer Credit Contract has not been recorded in Western Australia's Landgate organisation.

51    The reference to the finding by the Court of Appeal was to its rejection of an argument that the Supreme Court lacked jurisdiction because 'Commonwealth matters come under commonwealth jurisdiction'. As to the submission, the Court of Appeal explained that 'the National Consumer Credit Protection Act 2009 (Cth) (including the National Credit Code insofar as the Code has effect as a law as being scheduled to that Act) operates as Commonwealth rather than State law (see s 18 and s 19 of that Act)': Clark at [39]. This was because the legislation utilised the procedure provided for by s 51(xxxvii) of the Commonwealth Constitution. It was then explained that the Supreme Court had jurisdiction: Clark at [40].

52    Section 19 is the provision in the National Consumer Credit Protection Act that describes the extent of the referral by the States of legislative power for the purposes of the legislation. It provides that the reference 'does not include…the matter of making provision with respect to the general system for the recording of estates or interests in land and related information' (and other maters). Somehow, this provision concerning legislative power was said to require the loan agreement to be registered at Landgate. Section 19 does not impose any requirement of any kind at all. It simply makes clear that the referral of power by the States does not extend to matters concerned with laws concerning the recording of estates or interests.

53    In any event, s 58 of the Transfer of Land Act does not require registration. Rather, it provides that an instrument that is not registered will not pass an estate or interest. As has been mentioned, in this case the Mosman Park Mortgage was registered, it was that instrument that was claimed by the Bank to pass an estate or interest in land of a kind that entitled it to the order for possession that it had obtained in the Supreme Court proceedings.

54    I am unable to see any basis upon which s 58 of the Transfer of Land Act could found a claim by Ms Clark that would affect the enforceability of the loan agreement as the source of monies being owed to the Bank. Even if it was, Anshun estoppel would apply to a claim of that kind having regard to the claims made by the Bank in the Supreme Court proceedings.

The claim to restitutionary relief

55    As has been noted, the application by Ms Clark alleges that the loan agreement is 'invalid and unenforceable'. The various claims advanced by way of submissions for Ms Clark to support a case of that kind have been addressed. For reasons that have been given, having regard to the nature of the Supreme Court proceedings that have already been determined as between Ms Clark and the Bank, none of those claims have merit. That is because, taken together, the principles of issue estoppel, Anshun estoppel and abuse of process provide a clear answer to them.

56    Consequently, there is no arguable basis for the relief that Ms Clark seeks from this Court.

57    It was contended that the 'money claim for restitution…is an independent cause of action in unjust enrichment'. Reliance was placed upon David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353. That was a case where it was claimed that loan agreements were void by reason of certain provisions of Australian taxation law and payments made under the loans had been made on the basis of a mistake of law as to the existence of a legal obligation. Restitution of monies paid under the loan agreements was sought on that basis. The decision is authority for the proposition that, subject to certain defences (such as change of position), monies paid in the mistaken belief that there was a legal obligation to pay them may be recovered from the payee.

58    Of present significance is the need to demonstrate that there was a mistake as to the existence of a legal obligation to pay the monies. In order to establish that aspect, a party seeking restitution must be able to how that there was no legal obligation to pay the monies. All the claims that Ms Clark relies upon as the basis for establishing that there was no legal obligation to pay monies to the Bank depend upon her claim that the loan agreement is invalid and unenforceable. For reasons that have been given, none of the claims that Ms Clark seeks to advance to support that claim have any merit.

59    Therefore, there is no separate merit in the alleged restitutionary claim.

Inconsistency in relief and collateral attack

60    The Bank also advanced submissions in support of its application to the effect that the relief sought by Ms Clark was, in substance, an attack on the final orders in the Supreme Court proceedings. Those orders provided for amounts to be paid by Ms Clark as guarantor of obligations under the loan agreement and for possession of the Mosman Park property on the basis that monies were due under the Mosman Park Mortgage.

61    The submission advanced for Ms Clark was to the effect that the restitutionary nature of the claim meant that it was dealing with the monies that had been paid to the Bank. That may be so, but the nature of the claims raised is such that they seek to demonstrate that the loan agreement was invalid and unenforceable. If that were so, then the Mosman Park Mortgage would secure an obligation that was unenforceable. Yet, the Supreme Court proceedings have resulted in relief being granted on the basis that the loan agreement was enforceable. Orders have been made on that basis including as to possession of the Mosman Park Property.

62    In those circumstances, it appears that these matters mean that there is a further form of abuse of process that arises from the nature of Ms Clark's application in this Court, namely that it seeks to call into question the foundation for the orders that have been made in the Supreme Court proceedings. It seeks to persuade this Court to make orders that would be inconsistent with the basis upon which orders were made by the Supreme Court.

63    For Ms Clark it was submitted that there was no challenge to the determination by the Supreme Court that monies were due and owing under the terms of the loan agreement and those monies could be recovered under the terms of the Mosman Park mortgage (and consequently there should be an order for possession). It was said that the claim now sought to be advanced did not dispute those consequences. Rather, what it sought was restitution of those amounts already paid under the terms of the loan agreement. Implicit in that submission was an acceptance that any claim now sought to be advanced could not be the basis for claiming that there was not an outstanding balance due under the orders of the Supreme Court.

64    However, a distinction of that kind fails to engage with the nature of the claims that are now sought to be advanced. Those claims seek to impugn the enforceability of the loan agreement being a matter that was at the heart of the Supreme Court proceedings. Any claim of that kind seeks to call in question the very instrument that was said to be the basis for the judgment obtained in the Supreme Court. Parties cannot multiply proceedings in that way. The integrity of Court proceedings depends upon principles that are designed to ensure that they will quell the whole of a single controversy. I am not persuaded that the confined nature of the relief that is sought based on the claims that Ms Clark now seeks to raise is a basis to conclude that the principles of issue estoppel, Anshun estoppel and abuse of process do not apply to claims that seek to impugn the loan agreement.

Anshun estoppel and litigants in person

65    The fact that a party is a litigant in person is not 'of itself' a sufficient reason for the principles of Anshun estoppel not to apply: Sahin v National Australia Bank Ltd [2012] VSCA 317 at [98] (Ferguson AJA, Warren CJ and Neave JA agreeing), as applied in Kitoko v Sydney Local Health District [2025] FCA 914 at [100] (Shariff J]. Ms Clark is now represented. No submission was advanced that sought to give significance to the fact that Ms Clark conducted the Supreme Court proceedings as a litigant in person for the application of the relevant principles in respect of the claims that Ms Clark now seeks to bring in this Court.

Other matters

66    I regard other aspects of the submissions advanced for Ms Clark to lack coherence as a recognisable basis upon which this Court might contemplate entertaining proceedings given the finalisation of the Supreme Court proceedings. For example, there was reference to the alleged breaches of the Consumer Credit Code (based upon the terms of s 13) involving criminal conduct. The characterisation of the alleged conduct in that way does not provide a means by which to address the Bank's summary judgment application, based as it was upon the consequence for Ms Clark's application in this Court of the determination that had been made in the Supreme Court proceedings. Also, reference was made to Australian Securities Commission v Bendigo and Adelaide Bank Ltd [2020] FCA 716. However, that was a case where the respondent bank accepted that certain credit contracts contained terms that were unfair and, for that reason, the contracts were void by operation of a provision in the Australian Securities and Investments Commission Act 2001 (Cth). The case has no present relevance.

Conclusion and orders

67    For reasons I have given, the Bank's interlocutory application must succeed. It follows that there should be an order entering judgment for the Bank. The judgment should be for the proceedings to be dismissed. The Bank sought an order for costs of the application to be fixed in an amount to be determined by a Registrar. The Bank having succeeded, it is appropriate for Ms Clark to pay the costs of the proceedings. I see no reason why the costs of the proceedings should not be fixed by a Registrar. There should be orders accordingly.

Associate:

Dated:    17 July 2026