COMMONWEALTH BANK OF AUSTRALIA -v- CHENG [2026] WASC 170

[2026] WASC 170 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : COMMONWEALTH BANK OF AUSTRALIA -v- CHENG [No 3] [2026] WASC 170 CORAM : PALMER J HEARD : 17 MARCH & 31 MARCH 2026 DELIVERED : 4 MAY 2026 FILE NO/S : CIV 2563 of 2013 BETWEEN : COMMONWEALTH BANK OF AUSTRALIA Plaintiff AND MARY YUEN SHAN CHENG Defendant Catchwords: Practice and procedure - Whether first named first defendant should have leave to uplift affidavit and file fresh affidavits - No affidavit filed to justify orders sought Legislation: Rules of the Supreme Court 1971(WA) Result: Leave refused -- 1 of 8 -- [2026] WASC 170 Page 2 Category: B Representation: Counsel: Plaintiff : Mr S Wong SC Defendant : Mr G Lacerenza Solicitors: Plaintiff : Dentons Defendant : G A Lacerenza & Associates Case(s) referred to in decision(s): Cheng v Commonwealth of Australia [2022] WASCA 125 Commonwealth of Australia v Cheng [No 2] [2021] WASC 291 -- 2 of 8 -- [2026] WASC 170 PALMER J Page 3 PALMER J: Introduction 1 In these proceedings the plaintiff (the Bank) sues four defendants, including the first named first defendant (Mary). 2 On 8 September 2021, Smith J struck out Mary's defence and counterclaim with no leave to re-plead.1 Mary appealed that decision but that appeal was dismissed.2 3 On 6 December 2024, the Bank filed a motion for judgment against Mary pursuant to O 41 r 1 of the Rules of the Supreme Court 1971 (WA). Following a hearing before Smith AuJ (as she had become by then) on 19 December 2024, the Bank also filed an application for summary judgment against Mary. 4 On 19 December 2024, Smith AuJ ordered that Mary file any responsive affidavit by 24 February 2025. 5 On 10 March 2025, Mary filed a responsive affidavit (and the time for Mary to comply with the orders made by Smith AuJ were extended to 10 March 2025). 6 In March 2025, I assumed the case management of these proceedings. 7 Various orders have been made to progress the Bank's application since then, including for the filing of submissions and further evidence. The progress of the application has been significantly delayed by the need to resolve objections the Bank took to Mary's affidavit. Ultimately, those objections were resolved by conferral between counsel, following which large parts of Mary's affidavit were struck out by agreement. 8 On 17 March 2026, the Bank sought orders listing its application for hearing. In response, Mary's solicitor, Mr Lacerenza, sought orders seeking leave to uplift the affidavit that Mary filed on 10 March 2025 and to file fresh evidence. Mr Lacerenza asserted various reasons why such leave should be given from the bar table. No affidavit had been filed to address those matters. The orders sought by Mary were opposed by the Bank. I made some orders and otherwise adjourned the 1 Commonwealth of Australia v Cheng [No 2] [2021] WASC 291 (S). 2 Cheng v Commonwealth of Australia [2022] WASCA 125. -- 3 of 8 -- [2026] WASC 170 PALMER J Page 4 matter to 31 March 2026. I ordered that Mary file any affidavit in support of the orders she sought by 27 March 2026. 9 On 27 March 2026, rather than file an affidavit in support of the orders she sought as she had been ordered to do, Mary proceeded to file the fresh evidence she wished to rely upon (despite no leave having been given for her to do so). 10 On 31 March 2026, I made orders uplifting the affidavit that Mary filed on 27 March 2026 and I refused to make orders permitting Mary to uplift the affidavit she filed on 10 March 2025 and file fresh evidence. I indicated that I would publish reasons for my decision. These are those reasons. Why Mary sought leave to file an affidavit on 17 March 2026 11 As I have mentioned, on 17 March 2026 Mary sought orders seeking leave to uplift the affidavit she had filed on 10 March 2025 and to file fresh evidence. Mr Lacerenza, who appeared for Mary, explained that the order was sought on the following basis:3 Insofar as the appearance today, we've always understood, your Honour, that when we prepared our answering documents to the orders made by Smith [J] - and those were made in 19 December '24 - the application before the court was a summary judgment application and it was clear-cut, order 1, and on that basis we prepared and filed our documents in response to a summary judgment application. Now, somewhere along the track now it appears we're dealing with a motion for judgment, which is a totally different thing altogether. 12 I discussed with Mr Lacerenza that the fact that the Bank wished to press its motion for judgment was discussed at a directions hearing before me on 2 April 2025. I pointed out to him that he had also been present at that hearing. I explained that I had a great deal of difficulty understanding how he could have mistook the position, or why this was only being raised now, almost one year after the Bank had indicated its position.4 13 Mr Lacerenza also suggested that when the objections taken by the Bank to Mary's affidavit had been conceded by independent counsel, Mr Lacerenza had understood that Mary would be able to file further 3 ts 334. 4 ts 334 - ts 336. -- 4 of 8 -- [2026] WASC 170 PALMER J Page 5 evidence. He indicated that he had not discussed the position with counsel, however.5 14 I told Mr Lacerenza that I was not prepared to accept the assertions he was making as evidence from the bar table, but I indicated that I would allow Mary to put on evidence that addressed the situation.6 The following exchange occurred:7 PALMER J: Well, there's no evidence of that before me, but if evidence of that is put before me, well, I mean - - - LACERENZA, MR: We intend to put - - - PALMER J: - - - it is a - if that is the true situation, Mr Lacerenza, it is extremely surprising, but your - my concern is that your client should not be, or some sort of failure on the part of your client's legal representatives shouldn't be visited on your client and precisely what the situation is, I am not prepared to accept from the bar table in circumstances where the things you have said seem inconsistent with what is on the court record and my recollection of matters. But that said, what I am prepared to do is to… afford your client a very limited opportunity to produce affidavit evidence to support the matters that you are asserting from the bar table. I mean, really, if you were going to say this, it should have been supported by an affidavit by now anyway. 15 Order 3 of the orders that I made on 17 March 2026 was that Mary file 'any affidavit in support of the further orders that she seeks by 27 March 2026'. I explained to Mr Lacerenza what I expected such evidence might address, given the submissions he had made.8 16 I indicated that I would list the matter for a further hearing on 31 March 2026, at which time Mr Lacerenza might renew his application, this time on the basis of an affidavit that deposed to the relevant circumstances.9 The position adopted by Mary on 31 March 2026 17 As I have mentioned, Mary did not file an affidavit to substantiate the matters asserted by Mr Lacerenza from the bar table. Instead, Mary proceeded to file an affidavit containing the further evidence she wished to rely upon, despite the fact that no leave had been given to file that affidavit. 5 ts 337 - ts 338. 6 ts 341 - ts 342. 7 ts 342. 8 ts 341, ts 345. 9 ts 346. -- 5 of 8 -- [2026] WASC 170 PALMER J Page 6 18 On 31 March 2026, I asked Mr Lacerenza for an explanation for why Mary had simply proceeded to file the fresh affidavit evidence, despite no leave having been given. Mr Lacerenza told me that he had misunderstood order 3 of the orders I made on 17 March 2026.10 19 I then asked Mr Lacerenza why the affidavit that Mary filed on 27 March 2026 should not be uplifted given it had been filed without leave.11 The following exchange occurred:12 LACERENZA, MR: No, your Honour, I'm saying we decided - we agreed with the instructions from the client that we would go along with the papers as they stood, the motion for judgment. PALMER J: Then on what basis should I not order the uplifting of Mary's affidavit, given that no leave was given for the filing of it? LACERENZA, MR: We would be seeking - well, because of our - we misunderstood the tenor of 3 or its intention, we would ask that you at least grant us leave to either refile or accept the late filing because it was done with good intentions. It purely attacked the motion for judgment and nothing more. 20 Later in the hearing, Mr Lacerenza indicated that he still sought an order that he be allowed to file further evidence.13 I raised with him that he had failed to put any evidence before me addressing any circumstances which would justify the making of such an order. He said:14 LACERENZA, MR: Well, I - there is some information I received from the bank where they made an admission that a previous clerk who was handling the matter - - - PALMER J: There's no evidence of any of that before me. LACERENZA, MR: Well, I'm simply saying I got that yesterday. And perhaps my friend - if you could give me five minutes, I will find it. PALMER J: Okay. So - and what is the significance of that? LACERENZA, MR: What it was is that they've made an - the bank has made an admission that a previous clerk who was handling that matter for Dentons was aware or had been made aware that there was a summary judgment matter. That's all. 10 ts 354 - ts 355. 11 ts 357 - ts 360. 12 ts 359. 13 ts 365 - ts 14 ts 366 - ts 367. -- 6 of 8 -- [2026] WASC 170 PALMER J Page 7 PALMER J: Okay. Thank you. LACERENZA, MR: No more than that. PALMER J: And that's the basis upon which you now say that you must file - - - LACERENZA, MR: All the basis I'm seeking is to get a fair go for my client. She has filed her documents. There's a motion for judgment. Now we're told as of yesterday, “We're going to apply to strikeout and take away that affidavit.” And that seems to be the issue that we're now facing. And all I want is the opportunity to respond to that application. 21 As I have said, in the result, I ordered the uplifting of the affidavit that Mary filed on 27 March 2026 and refused leave for Mary to file fresh evidence. Why I made the orders I did on 31 March 2026 22 Mary filed her affidavit on 10 March 2025, over a year ago. A substantial amount of time and work has been involved in resolving the Bank's objections to that affidavit. The submissions that have been prepared were on the basis that Mary's evidence is the evidence in that affidavit. After considerable delay, the Bank's application has reached the point that it is ready for hearing. 23 The Bank made it plain that it proposed to press its motion for judgment over a year ago, in April 2025. At no stage since then, prior to 17 March 2026, was it suggested that Mary might need to file any different evidence to that she had filed. Nor prior to then was it ever suggested that Mary's case was being prepared on the understanding that she would be permitted to file further evidence. 24 While on 17 March 2026, Mr Lacerenza made various claims from the bar table about how he understood the proceedings were being conducted, for the most part these proceedings have been conducted by independent counsel and Mr Lacerenza did not attend hearings. When asked, Mr Lacerenza said that he had not discussed his understanding with counsel. 25 Mary elected not to file an affidavit confirming the matters that Mr Lacerenza had asserted from the bar table on 17 March 2026. Instead, on 31 March 2026, Mr Lacerenza seemed to resile from the position he adopted on 17 March 2026. He still sought to press for leave to file fresh evidence but struggled to articulate any coherent explanation for why Mary should be given leave to do so. -- 7 of 8 -- [2026] WASC 170 PALMER J Page 8 No explanation was provided for why this issue had not been raised earlier, or why an affidavit setting out the relevant circumstances had not been filed. 26 Granting Mary leave to file an affidavit now might mean that much of the work done over the last year to progress this matter to a hearing would be wasted. The hearing of the Bank's application might also be likely to be delayed. These proceedings have already been on foot for a number of years, and it is in the interest of justice that they proceed to a hearing without further delay. 27 I was therefore not prepared to grant Mary leave to file fresh evidence. As the affidavit that she filed on 17 March 2026 was filed without leave, I ordered that it be uplifted. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SK Associate to the Hon. Justice Palmer 4 MAY 2026 -- 8 of 8 --