Background
Dorota-Donata and Michael-Mark Borkowski obtained a Westpac loan secured by a mortgage over their property in Taylors Hill, Victoria. After they defaulted in 2022, Westpac obtained default judgment and a warrant of possession in the County Court of Victoria, took possession in September 2024, and sold the property as mortgagee in possession in November 2025. The borrowers unsuccessfully sought to set aside the County Court judgment and warrant, then unsuccessfully pursued judicial review in the Supreme Court of Victoria.
In the Federal Court, the self-represented borrowers alleged, among other things, that Westpac had improperly restructured their loan, failed to supply adequate accounting and loan records, breached the National Credit Code and Banking Code of Practice, and enforced the mortgage without proper judicial authority. They also challenged Westpac’s post-sale provision of information about the sale proceeds, deductions, and surplus. Westpac sought summary judgment under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).
The Court’s Holding
Justice Bennett entered summary judgment for Westpac. The claims concerning conduct before the property’s sale either had been raised, or were so closely connected with the earlier County Court and Supreme Court proceedings that it was unreasonable not to raise them there. Permitting those claims—including challenges based on s 88 of the National Credit Code, the loan-account structure, alleged disclosure failures, and the asserted lack of judicial authority—to proceed again would be oppressive, undermine finality, and constitute an abuse of process. The borrowers’ self-represented status did not justify another opportunity to litigate those matters.
The post-sale claims could not have been brought in the earlier proceedings, but they nevertheless had no reasonable prospect of success. Westpac had timely supplied account statements, a settlement statement, invoices, an explanation of the debt and deductions, and the amount of the surplus. The National Credit Code and Banking Code provisions relied upon required specified statements and information; they did not require Westpac to prove every underlying entry to the borrowers’ satisfaction. A proposed argument under s 107 of the National Credit Code was neither pleaded nor properly raised and, insofar as it sought to reopen the enforcement process, was also abusive. The Court left costs to be determined separately.
Key Takeaways
- A claim may be summarily dismissed as an abuse of process when it seeks to relitigate matters raised earlier or matters so connected with prior litigation that withholding them was unreasonable.
- Recasting earlier mortgage-enforcement objections under different statutory provisions does not avoid principles protecting the finality of litigation.
- Rights to account statements and specified information under the National Credit Code and Banking Code do not require a lender to establish every underlying figure to a borrower’s subjective satisfaction.
Why It Matters
The decision illustrates the limits facing borrowers who attempt to challenge completed mortgage enforcement through successive proceedings. Courts will examine the substance of later claims, not merely their new labels, when deciding whether they impermissibly reopen issues connected with earlier litigation.
It also distinguishes between a lender’s duty to provide prescribed account and sale information and any separate challenge to the correctness or reasonableness of particular charges. A borrower must plead and pursue the proper statutory mechanism for the latter challenge; a general demand for further verification will not necessarily sustain a claim.