KEYSTART LOANS LIMITED -v- MENGEL [2026] WASC 174

[2026] WASC 174 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : KEYSTART LOANS LIMITED -v- MENGEL [2026] WASC 174 CORAM : LUNDBERG J HEARD : 5 MAY 2026 DELIVERED : 5 MAY 2026 FILE NO/S : CIV 1246 of 2022 KEYSTART LOANS LIMITED Plaintiff AND CLAIRE MENGEL Defendant Catchwords: Practice and procedure - Application by a non-party to enforce judgment under s 13(1)(d) of the Civil Judgments Enforcement Act 2004 (WA) - Whether benefit of judgment transferred to the non-party under Keystart Act 2024 (WA) - Transfer order made by relevant Minister - Consideration of the operation of the Transfer Order - Non-party intending to seek Property (Seizure and Delivery) Order under s 95 and s 96 of the Civil Judgments Enforcement Act 2004 (WA) Legislation: Civil Judgments Enforcement Act 2004 (WA), s 3, s 13, s 95, s 96, s 98 Civil Judgments Enforcement Regulations 2005 (WA), reg 103 Keystart Act 2024 (WA), s 6, s 9, s 10, s 38, s 39 -- 1 of 9 -- [2026] WASC 174 Page 2 Result: Application to enforce judgment by a non-party granted. Category: B Representation: Counsel: Plaintiff : No appearance Defendant : No Appearance Non-party : L Y T Lee Solicitors: Plaintiff : Lavan Defendant : In Person Non-party : Lavan Case(s) referred to in decision(s): Nil -- 2 of 9 -- [2026] WASC 174 LUNDBERG J Page 3 LUNDBERG J: 1 The plaintiff in this mortgage action, being Keystart Loans Limited, has been the subject of a recent restructure pursuant to the terms of the Keystart Act 2024 (WA) (Keystart Act). Prior to the restructure, the plaintiff was wholly owned by the Western Australian Housing Authority. As a government trading enterprise (GTE), that legal structure was considered to be somewhat irregular.1 GTEs are typically established with their own enabling legislation. 2 The Keystart Act has now established Keystart as a body corporate with perpetual succession (s 6(1)), with the functions and powers set out in s 9 and s 10 of the legislation. Further, div 3 of pt 7 of the Keystart Act established a regime by which the relevant Minister may make 'transfer orders', by which assets, rights and liabilities are transferred from 'expiring entities' to other entities, including to the newly created entity, Keystart. I refer to s 38 and s 39 of the Keystart Act in particular. The term 'expiring entity' is defined in s 33 of the Keystart Act to include Keystart Loans Limited. 3 Pursuant to this regime, a transfer order was duly made by the Minister for Housing and Works, which was published in the Government Gazette on 24 June 2025.2 I will refer to this as the Transfer Order. The terms of the body of the Transfer Order are set out in Attachment A to these reasons, together with the relevant portion of Table B (but not the balance of Table B, nor Tables A and C or Schedule 1 thereto). By its terms, the Transfer Order operated to transfer the assets, rights, and liabilities referred to within the order from, among other parties, Keystart Loans Limited, to the newly established entity, being Keystart. 4 Legislative transfer order regimes such as this are a relatively common feature of Western Australian legislation.3 5 The foregoing is relevant to the present action because, on 23 May 2023, the plaintiff obtained default judgment against the defendant, Ms Mengel, arising from non-payment of a loan secured by a mortgage in respect of a residential property in Brookdale. The order of the court required Ms Mengel to give vacant possession of the mortgaged 1 Explanatory Memorandum to the Keystart Bill 2024 (WA). 2 Identified as TR401. 3 See, for example, the Health Services Act 2016 (WA); the Pilbara Port Assets (Disposal) Act 2016 (WA); and the TAB (Disposal) Act 2019 (WA). -- 3 of 9 -- [2026] WASC 174 LUNDBERG J Page 4 property to Keystart Loans Limited within 28 days. Further, the order required Ms Mengel to pay the sum of $229,997.01, being the amount due under the loan agreement and mortgage, together with interest. 6 The default judgment remains unsatisfied, both in terms of vacant possession and payment of the judgment sum. 7 Keystart, the new entity, has now applied to this court for leave to enforce the default judgment, in substitution for the plaintiff. In particular, Keystart has applied, pursuant to s 13(1)(d) of the Civil Judgments Enforcement Act 2004 (WA) (CJEA) to enforce the default judgment. Leave is required because Keystart is not the named plaintiff. 8 Section 13 of the CJEA relevantly provides: 13. Court’s leave to enforce needed in some cases (1) Leave of the court must be obtained before an order may be made under this Act to enforce a judgment — … (d) if the person seeking to enforce the judgment was not personally a party to the case in which the judgment was given; or … (2) On an application for leave under subsection (1), the court — (a) may give leave if it is satisfied that the person seeking to enforce the judgment is entitled to do so and that the person against whom the order is sought is liable to satisfy the judgment; and (b) may order the trial of any issue that needs to be decided in order to determine if the judgment may be enforced and, if it may be enforced, by whom and against whom; and (c) may do so on terms as to costs or otherwise. … 9 Thereafter, Keystart intends, by way of enforcement, to file an application for a 'Property (Seizure and Delivery) Order' under div 1 pt 5 of the CJEA. Orders of this nature will, in effect, authorise the -- 4 of 9 -- [2026] WASC 174 LUNDBERG J Page 5 Sheriff and the Sheriff's officers to use 'any force and assistance that is reasonably necessary' to enter a property and to evict persons from that property. In certain circumstances, disobedience of such orders can provide the foundation for the contempt of court regime in div 2 pt 5 of the CJEA.4 The present application is not concerned with whether such an order should be made, only whether the application may be filed, as counsel for the applicant explained at the hearing. 10 Nonetheless, it is relevant to recognise that the applicant's future intention is to pursue such an order and to note that the present application for leave has been heard in the absence of the judgment debtor, albeit with notice having been given to her. Accordingly, in these circumstances, it is appropriate for the present application for leave to be scrutinised by the court. 11 The present application is supported by the affidavit of Mr Aaron Michael Toase sworn 23 March 2026. Mr Toase is a paralegal employed by the applicant's solicitors. The application itself was initiated by filing a Form 7, one of the forms approved under reg 103 of the Civil Judgments Enforcement Regulations 2005 (WA). 12 At the hearing this morning, counsel for the applicant relied on the affidavit of Mr Toase and explained the basis for the application. I was satisfied the application should be granted, for the following reasons. 1. A non-party to a proceeding may be given leave to enforce a judgment if the court is satisfied that the non-party is entitled to enforce the judgment, and the person against whom the order is sought is liable to satisfy the judgment: s 13(2)(a) CJEA. 2. The first of these requirements, whether Keystart is entitled to enforce the judgment, is demonstrated by the operation of the Keystart Act and the Transfer Order. To explain this, it is necessary to outline the three aspects of the home loan business of Keystart Loans Limited which were transferred by the Keystart Act and Transfer Order, as explained by counsel for the applicant:5 4 See s 96(5) of the CJEA, which applies where a person unlawfully resumes possession of real or personal property seized from the person under such an order. In that event, s 98 applies as if the person had disobeyed a judgment to which div 2 applies. 5 Recognising there is a catch-all provision for other assets of the 'expiring entities', found in item 20 of Table B to the Transfer Order. -- 5 of 9 -- [2026] WASC 174 LUNDBERG J Page 6 (a) The first aspect concerns the active loan arrangements of the business, which counsel explained were addressed by the detailed terms of Schedule 1 to the Transfer Order. (b) The second aspect concerns those loan arrangements which are the subject of pending proceedings in this court, which are addressed by par (e) of, and Table C to, the Transfer Order. (c) The third aspect concerns those loan arrangements which are the subject of proceedings in this court in respect of which judgment has already been obtained, which are addressed by pars (b) and (d) of the Transfer Order and item 1(a)(ii)(D) in Table B to the Transfer Order.6 3. The present application is concerned with the third aspect just mentioned. In particular, by operation of the provisions mentioned at point 2(c) above, read with s 38 and s 39 of the Keystart Act, a transfer took place at 12.01am on 1 July 20257 by which the benefit of the default judgment obtained by the judgment creditor in this proceeding was transferred to Keystart. 4. By operation of s 38(1)(c) and s 39(2)(d) of the Keystart Act, the references to the judgment creditor in the default judgment (and in the orders) are to have effect as if they are a reference to Keystart. 5. By operation of s 39(2)(e) of the Keystart Act, any proceedings or remedy that might have been commenced by, or available to, Keystart Loans Limited in relation to the present proceedings may be commenced by Keystart. 6. By reason of s 39(3)(a) of the Keystart Act, the transfer of the benefit of the default judgment occurred by operation of s 39 without the need for any conveyance, transfer, assignment or assurance, or any prior notice or further act, and took effect despite any other written law or instrument. 6 I understood the excluded agreements and instruments identified in item 1(b)(i) to (iv) of Table B are not relevant for present purposes. 7 Which was the 'Operational Start Date' as defined in the Transfer Order. -- 6 of 9 -- [2026] WASC 174 LUNDBERG J Page 7 7. In these circumstances, the first of the requirements in s 13(2)(a) of the CJEA is satisfied, namely that Keystart is entitled to enforce the default judgment in its own name. 8. As to the second of the requirements in s 13(2)(a) of the CJEA, I note the applicant seeks to enforce the judgment against the named judgment debtor, namely Ms Mengel. Ms Mengel remains the person liable to satisfy the judgment which was obtained in May 2023. There is no contrary evidence before the court. 13 For these reasons, leave pursuant to s 13(2)(a) of the CJEA should be given to permit Keystart to enforce the default judgment in these proceedings. At the conclusion of the hearing, I accordingly made the orders sought by the non-party applicant, together with some ancillary orders as to service on Ms Mengel of the orders and the foreshadowed Form 6 application. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IR Associate to the Hon Justice Lundberg 5 MAY 2026 -- 7 of 9 -- [2026] WASC 174 LUNDBERG J Page 8 ATTACHMENT A Extracts from the Transfer Order -- 8 of 9 -- [2026] WASC 174 LUNDBERG J Page 9 -- 9 of 9 --