Federal Court of Australia

Clark v Registrar of Titles (No 2) [2026] FCA 1404

ORDERS

THE COURT ORDERS THAT:

1.    On or before 25 September 2026, the second respondent do file and serve an affidavit as to whether the debt the subject of mortgage K399259M has been securitised and as to whether the second respondent advanced the relevant funds itself or as trustee.

2.    The interlocutory application dated 26 August 2026 is dismissed.

3.    The orders made on 20 August 2026 are vacated.

4.    The applicant show cause as to why the proceedings should not be dismissed on a summary basis.

5.    The show cause hearing is listed for hearing on 14 October 2026 at 10.15 am AWST.

6.    The respondents are excused from attendance at the show cause hearing.

7.    On or before 6 October 2026, the applicant file and serve any affidavits and any outline of submissions for the purposes of the show cause hearing.

8.    Any outline of submissions filed in accordance with these orders shall be no more than 10 pages with 12 point font and 1.5 line spacing.

9.    Other than documents provided for by these orders, until the show cause hearing and its determination, no party shall file any further document in these proceedings without the leave of the case managing judge.

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 registered proprietor of a property in Mosman Park. She seeks an injunction restraining the Registrar of Titles from transferring the property. The Registrar has given notice that they will abide the outcome of the proceedings. The Commonwealth Bank holds a registered mortgage over the property. In previous Supreme Court proceedings, the Bank has obtained summary judgment against Ms Clark in respect of an amount of almost $550,000 plus interest due under the mortgage. The Bank is also a respondent to the proceedings. Ms Clark's application is listed for hearing on 14 October 2026.

2    Respectfully, the basis upon which Ms Clark seeks an injunction is obscure. Her affidavit in support of her originating application is brief. It advances a claim that the National Consumer Credit Protection Act 2009 (Cth) (Consumer Credit Act) 'affects the mortgage' and that the injunction be granted on that basis. The application and affidavit do not otherwise explain the basis for the application.

3    In the Supreme Court proceedings, the Court determined that insofar as the mortgage secures obligations of Ms Clark as guarantor of the obligations of Shada Pty Ltd, the Consumer Credit Act does not apply to monies due under the mortgage: Commonwealth Bank of Australia v Shada Pty Ltd [2025] WASC 200 (Gething J): at [37]-[48] and Clark v Commonwealth Bank of Australia [2025] WASCA 127 at [23]-[35] (Mitchell and Vaughan JJA). Ms Clark is the sole director and shareholder of Shada Pty Ltd.

4    Ms Clark brought an interlocutory application for discovery. She did not seek to proceed with her discovery application against the Bank, but pressed her application against the Registrar. The discovery application sought title documents relating to the Mosman Park property. Before the Court is a letter from the Registrar concerning the discovery sought by Ms Clark. It refers to a typographical error in the identification of the Bank's mortgage. It notes that the discovery sought is the complete title search, dealing history and official file for the Mosman Park property. It points out that a title search can be conducted to obtain documents relating to the property but otherwise notes that the request is incredibly broad and would include documents that do not relate to the ownership of the property.

5    In her affidavit in support of the discovery application, Ms Clark said that she sought the records to ascertain whether documents held by the Registrar identify any additional person whose interest may be affected by the relief sought in the proceeding. As I have explained, the relief sought is an injunction against transferring the land on the basis that the Bank's mortgage is affected by the Consumer Credit Act. There is no basis articulated for relief that would affect any other person. Although the injunction is sought in terms that may apply to other parties, having regard to the affidavit filed in support of the originating application, I regard the application as being confined to the interests of the Bank.

6    In oral submissions, Ms Clark said that she sought the discovery from the Registrar because she believed that the loan that the Bank had made that was the subject of the mortgage had been securitised. She also alleged that the Bank acted as some form of trustee. She seemed to advance these matters as reasons why there may be other parties affected by the proposed injunction and as matters that were relevant to the basis for her claim to that relief. The application makes no mention of matters of that kind. There was no evidentiary basis before the Court for a belief that the Bank was not the source of the funds or the holder of the rights under the mortgage. The position of the Bank was that Ms Clark had been informed that the loan had been provided by the Bank and an affidavit to that effect had been provided in the Supreme Court proceedings.

7    I formed the view that, as a matter of practical case management, it was appropriate for the Bank to provide a short affidavit as to the position concerning those matters for the purposes of these proceedings. An affidavit would address the matters raised by way of oral submissions as the basis for the discovery application.

8    I indicated that I would make that order and would otherwise dismiss the discovery application and would provide my reasons for doing so. I dismissed the interlocutory application because in circumstances where an order was to be made requiring the Bank to confirm its position as to the source of the relevant funds no basis had been demonstrated as to why the documents sought from the Registrar might be of any possible relevance to the claims made by the application.

9    I then considered what was to occur in relation to the hearing that had been listed for 14 October 2026. Under timetabling orders that had been made for that hearing, Ms Clark was required to file her affidavits and submissions in support of her application by 10 September 2026. She had sought an extension of time to do so on the basis that it was necessary to seek discovery before filing those materials. It is now too close to the hearing of the application to allow time for the filing of those materials, for a response from the Bank and for any reply from Ms Clark.

10    In the course of the application for discovery, I had difficulty understanding the legal basis for the application by Ms Clark for injunctive relief. Also, Ms Clark has failed in previous proceedings brought in this Court against the Bank in which she claimed that the Bank had not complied with the Consumer Credit Act which was said to apply to the loan to Shada Pty Ltd: Clark v Commonwealth Bank of Australia [2026] FCA 940.

11    In the circumstances, I determined that it was appropriate to make orders for the hearing on 14 October 2026 to proceed as a hearing at which Ms Clark must show cause as to why the proceedings should not be dismissed on a summary basis. If Ms Clarke is successful in demonstrating that the proceedings have an arguable legal basis and therefore should not be dismissed then there can be a further hearing at which the Bank can be heard in opposition to her application.

12    In order to ensure that no further steps are taken in the proceedings pending the Court considering whether there is a proper legal basis for the proceedings, I also determined that it was appropriate for a direction to be made requiring leave before any further documents are filed in these proceedings prior to the show cause hearing.

Associate:

Dated:    22 September 2026