PLATINUM MORTGAGE SECURITIES PTY LTD -v- MIX GARDENS PTY LTD [2026] WASC 320

[2026] WASC 320 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : PLATINUM MORTGAGE SECURITIES PTY LTD - v- MIX GARDENS PTY LTD [2026] WASC 320 CORAM : SOLOMON J HEARD : 31 JULY 2026 FURTHER SUPPLEMENTARY WRITTEN SUBMISSIONS 4 AUGUST 2026 DELIVERED : 5 AUGUST 2026 FILE NO/S : CIV 2062 of 2021 BETWEEN : PLATINUM MORTGAGE SECURITIES PTY LTD Plaintiff AND MIX GARDENS PTY LTD First Defendant MICHELE RASCHILLA Second Defendant NATALIE RASCHILLA Third Defendant Catchwords: Application for leave to withdraw notice of intention to abide - Where notice filed without benefit of legal advice - Where party was unable to participate in the proceedings due to physical and mental health challenges - Where there is no material prejudice to the opposing party - Where interests of justice require leave to be given - Applicable principles -- 1 of 12 -- [2026] WASC 320 Page 2 Legislation: Corporations Act 2001 (Cth) Rules of the Supreme Court 1971 (WA) Uniform Civil Procedure Rules 2005 (NSW) Result: Application granted Category: A Representation: Counsel: Plaintiff : Mr J Winton First Defendant : No appearance Second Defendant : Mr R French (Amicus Curae) Third Defendant : Mr R French (Amicus Curae) Solicitors: Plaintiff : Tudori Hager Grubb First Defendant : In Person Second Defendant : In Person Third Defendant : In Person Case(s) referred to in decision(s): Evergreen Tours Pty Ltd v McLaren [2010] NSWSC 1362 Lowe v Pascoe (No 7) [2018] NSWSC 333 Polodna v Mattiaccio [2019] WASCA 21 Tory v Megna [2012] NSWCA 41 Trust Co of Australia v Perpetual Trustees WA Ltd (1995) 36 NSWLR 654 -- 2 of 12 -- [2026] WASC 320 SOLOMON J Page 3 SOLOMON J: 1 This is an application by the second defendant for leave to withdraw his notice of intention to abide filed on 24 April 2025. Background 2 This matter has had a long and somewhat difficult history. Proceedings were first issued by the plaintiff (Platinum) in October 2021 against what is now the first defendant (Mix Gardens) to enforce a security over a property belonging to Mix Gardens at 187 Hawtin Road, Maida Vale, following an alleged default by Mix Gardens in the repayment of a loan. That property was the business premises of Mix Gardens and remains the home of the second and third defendants. 3 Platinum brought an application for summary judgment on 1 March 2022. The application was dismissed by the Master on 24 May 2022. 4 Mix Gardens filed a defence on 31 August 2022. Although not styled as a defence and counterclaim, it sought declaratory orders on the basis of alleged misleading and deceptive, and unconscionable conduct on the part of Platinum. 5 On 31 May 2023, consent orders were made by a registrar joining Michele Raschilla (Michele) and Natalie Maree Raschilla (Natalie) as the second and third defendants respectively. An amended statement of claim followed on 5 June 2023, which claimed $1,895,292.82 and possession of the property, and claimed against Michele and Natalie personally as guarantors of the loan. 6 On 23 August 2023, a defence was filed on behalf of all defendants, which again sought declaratory orders on the basis of alleged misleading and deceptive, and unconscionable conduct on the part of Platinum. 7 Platinum filed an amended reply on 15 September 2023. Although not styled as a reply and defence to counterclaim, it denied the misleading and unconscionable conduct, and denied that the defendants were entitled to the relief claimed in their defence. 8 In January 2024, the defendants' then solicitor ceased to act as the solicitor on record. In February 2024, each of Michele and Natalie filed a notice of intention to act in person. -- 3 of 12 -- [2026] WASC 320 SOLOMON J Page 4 9 On 5 March 2024, Glancy J listed the matter for trial commencing on 24 June 2024 for a duration of three days. 10 On 14 March 2024, Natalie purported to file an amended defence on behalf of all defendants. 11 On 29 May 2024, it being apparent that the matter was not ready for trial, I made orders vacating the trial dates. 12 On 20 June 2024, Armeli & Molony Lawyers filed a notice advising that it was acting for the defendants. The parties thereafter consented to orders giving the defendants leave to file a substituted defence. 13 In late September 2024, Michele and Natalie again filed notices of intention to act in person. At the same time, Armeli & Molony Lawyers filed an application to cease to act and come off the record. Strk J made orders to that effect on 2 October 2024. 14 In November 2024, Hale Legal came on the record for Mix Gardens. Hale Legal filed a substituted defence on behalf of Mix Gardens on 10 December 2024 and amended defences were filed in person by Michele and Natalie on 16 December 2024. 15 In January 2025, efforts were made - including by appropriate orders - to have the matter listed for trial. 16 In February 2025, Hale Legal ceased to act for Mix Gardens and came off the record. On 25 February 2025, orders were made programming the matter to trial. 17 On 24 April 2025, Michele filed and served a notice of intention to abide, advising that he 'does not intend to take part in the proceedings and will accept any order made by the Court'. 18 The matter was then listed for trial for three days in December 2025 and the parties took various steps in preparation for trial. 19 In August 2025, I was advised that an application had been made for the winding up of Mix Gardens. That application was apparently made by Hale Legal on the basis of unpaid legal fees. 20 On 27 October 2025, the matter was again listed before me. At that time, there was an important shift in the landscape. Mix Gardens was in liquidation and did not appear. Platinum had new counsel from -- 4 of 12 -- [2026] WASC 320 SOLOMON J Page 5 the Independent Bar, who was not yet familiar with the matter and advised that he was not sure how much longer he would continue to be engaged on the matter. Mr Robert French of counsel appeared as a friend of the court to advise Natalie. Mr French advised the court that he was seeking support from a solicitor. Mr French advised the court that Michele was suffering from serious health problems. He also advised the court that he had been told the liquidator of Mix Gardens was intending to abide by the outcome of the proceedings. The matter was adjourned to 10 November 2025. 21 On 10 November 2025, another new counsel, Mr Jesse Winton of counsel, appeared for Platinum. Mr Winton sought an adjournment. The liquidator of Mix Gardens had been excused from attendance. Mr French appeared again for Natalie. Orders were made for Natalie to file a minute of proposed amended defence and counterclaim. The parties were then to confer regarding further programming of the matter. 22 The matter again came before me on 9 December 2025. On that occasion, I made orders for the filing of a further amended defence and counterclaim by Natalie and programming orders for a foreshadowed application by Platinum under s 471B of the Corporations Act 2001 (Cth) for leave to proceed against Mix Gardens in liquidation. 23 On 19 February 2026, Natalie filed an amended defence and counterclaim. 24 On 26 March 2026, I granted Platinum's application for leave under s 471B of the Corporations Act to proceed with the action against Mix Gardens (in liquidation). 25 On 26 March 2026, I also made orders programming for Natalie to file a further amended defence and counterclaim, and any strike out application, or filing of a reply, by Platinum. 26 On 15 April 2026, Natalie and Michele purported to file a further amended defence and counterclaim. That document made substantial amendments to the amended defence and counterclaim filed by Natalie in February 2026. 27 The matter came before me again on 2 June 2026. Mr Winton and Mr French appeared. At that stage, there was some confusion regarding the position and representation of the parties. The following ultimately emerged: -- 5 of 12 -- [2026] WASC 320 SOLOMON J Page 6 (1) Platinum was resolved to proceed against Mix Gardens. Mix Gardens remained unrepresented. The liquidator had apparently advised, without filing any formal document, that the liquidator would abide by the outcome. (2) The amended defence and counterclaim filed by Natalie on 19 February 2026 was not the subject of any controversy. (3) Platinum objected to the amended defence and counterclaim purportedly filed by Natalie and Michele on 15 April 2026 because insofar as it was purportedly filed on behalf of Michele, it was inconsistent with Michele's notice of intention to abide. Platinum submitted that the document of 15 April 2026 was therefore irregular and should be removed from the file. (4) Platinum reserved its position in relation to the proposed amendments in that document in respect of Natalie. (5) Platinum had held off filing a reply to Natalie's amended defence and counterclaim of 19 February 2026 pending resolution of the amendments apparently proposed by the irregular document of 15 April 2026. (6) Mr French advised that he had now instructions to act for Michele as well as for Natalie. He was instructed that Michele now wished to withdraw his notice of intention to abide and to participate in the action. (7) Mr French also foreshadowed an application pursuant to s 237 of the Corporations Act for leave to bring a defence and counterclaim on behalf of Mix Gardens in liquidation. 28 Ultimately, I made orders on 2 June 2026 that by 23 June 2026, Michele bring any application to withdraw his notice of intention to abide. I made a further order that any application for leave under s 237 of the Corporations Act also be brought by 23 June 2026. I also ordered that the re-amended defence and counter claim purportedly filed on behalf of Michele and Natalie on 15 April 2026 be removed from the court file. The application 29 Michele has brought an application to withdraw his notice of intention to abide, by chamber summons filed on 10 July 2026. Michele -- 6 of 12 -- [2026] WASC 320 SOLOMON J Page 7 has filed two affidavits, and Natalie has filed an affidavit, in support of Michele's application. The application is opposed by Platinum. 30 No application under s 237 of the Corporations Act has been filed. I was advised by Mr French at the hearing of 31 July 2026 that it was now appreciated that an application under that statutory provision was not appropriate. 31 In his affidavit, Michele gives evidence of both his mental and physical health challenges. It is unnecessary to record the medical details. It is sufficient to observe that Michele's evidence is that at the time he had filed the notice of intention to abide in April 2025, he was suffering from very poor mental health. He was facing the loss of his home and business. Michele says he felt unable to cope with the requirements and stress of the litigation, or indeed even to discuss it. He considered that his wife Natalie was coping better and was better able to deal with the litigation. It was in those circumstances that he filed the notice of intention to abide. He did so without the benefit of legal advice. 32 In September 2025, Michele suffered a heart attack which has had deleterious effects on his health and has required ongoing medical care and ultimately surgical intervention, which itself resulted in some complication requiring further hospitalisation some weeks ago. Again, it is unnecessary to record the details. 33 Michele's evidence is that as he recovered from his heart attack, his mental health also improved. However, his ongoing physical health challenges delayed the making of the application. On 22 May 2026, Natalie wrote to the lawyers for Platinum and sought its consent to Michele's withdrawal of his notice of intention to abide. The consent was not forthcoming. 34 Michele's evidence is that he has now recovered sufficiently to participate in the proceedings and wishes to do so. He has reviewed the amended defence and counterclaim purportedly filed on his and Natalie's behalf on 15 April 2026. He wishes to file a defence and counterclaim in those terms, and says he is not aware of any matters that would lead him to vary or amend that document. 35 Platinum contends that the application should be refused for a number of reasons. First, Michele's decision was deliberate and considered and was not the product of any misunderstanding or mistake. Secondly, the application is brought in circumstances where he -- 7 of 12 -- [2026] WASC 320 SOLOMON J Page 8 has previously been an active participant in the proceedings and the application has now been made late in the proceedings. Thirdly, Platinum contends that the delay has not been adequately explained. Platinum submits that the medical evidence is vague and unsupported by independent objective evidence. Platinum characterises Michele's evidence of his mental health condition as 'mere assertion'. Although Michele annexed hospital records in relation to his heart condition, Platinum points to entries in the hospital records that suggest Michele was not incapacitated. Fourthly, Michele has not sought for his leave to be conditioned in any way. Platinum says it will be prejudiced because Michele is seeking to withdraw his notice at large and wishes to advance a new case without restriction. Legal principles 36 The procedure by which a party gives notice of its intention not to participate and to abide the decision of the court is not uniform across jurisdictions in Australia. For example, in New South Wales, r 6.11 of the Uniform Civil Procedure Rules 2005 (NSW) provides: (1) A defendant who intends to take no active part in proceedings may include in the defendant's notice of appearance a statement to the effect that the defendant submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made, to which may be added the words ", save as to costs". (2) Except by leave of the court, a defendant who has filed a notice of appearance containing a statement referred to in subrule (1) may not file a defence or affidavit or take any other step in the proceedings. 37 It appears that approach emanated from the Equity Act 1880 (NSW) in that jurisdiction, as explained by Young J in Trust Co of Australia v Perpetual Trustees WA Ltd.1 38 In contrast, in Western Australia, O 12 of the Rules of the Supreme Court 1971 (WA) is titled 'Appearance'. Rule 2 provides that an appearance must be in accordance with Form 6. Unlike the position in New South Wales, Form 6 does not provide for an appearance to include a statement of submission to or acceptance of the outcome. 39 However, still under the general heading of 'Appearance', O 12 contains r 11. That rule provides: 1 Trust Co of Australia v Perpetual Trustees WA Ltd (1995) 36 NSWLR 654, 655 - 656. -- 8 of 12 -- [2026] WASC 320 SOLOMON J Page 9 (1) This rule applies if a defendant to an action — (a) does not intend to take part in the action; and (b) either — (i) intends to accept all orders of the Court made in the action; or (ii) intends to accept all orders of the Court made in the action, other than an order made as to costs. (2) The defendant must file and serve 2 copies of a Form 8 that are signed by — (a) the legal practitioner who acts for the defendant; or (b) if the non-participating party is self-represented, the defendant. 40 Thus, it appears that in Western Australia, a defendant can either enter an appearance by a Form 6 (conditional or unconditional) or a notice of intention to abide by a Form 8. However, a notice of intention to abide is not a process that is limited to a defendant's initial response to an action as part of a defendant's 'appearance'. Although the rule in O 12 is entitled 'Appearance', there is no restriction on the timing of such a notice. It may be filed at a later stage of the proceedings. 41 A number of decisions in New South Wales have considered the exercise of the court's discretion to grant leave under r 6.11(2) - effectively the grant of leave to withdraw a submitting appearance and to take an active role in the proceedings.2 42 In Western Australia, in Polodna v Mattiaccio,3 the Court of Appeal considered the principles applicable to the grant of leave to withdraw an unconditional appearance and substitute with a conditional appearance. The Court of Appeal proceeded on the basis that it was an application brought under O 23 r 1 of the Rules of the Supreme Court, which provides that the court may grant leave to a party to withdraw an appearance. I doubt that an application to withdraw a notice of intention to abide is an application under O 23 r 1. Rather, I consider it is more likely an application in the inherent jurisdiction of the court. It nevertheless seems to me that whether it be an application under O 23 2 See Tory v Megna [2012] NSWCA 41; Lowe v Pascoe (No 7) [2018] NSWSC 333; Evergreen Tours Pty Ltd v McLaren [2010] NSWSC 1362. 3 Polodna v Mattiaccio [2019] WASCA 21. -- 9 of 12 -- [2026] WASC 320 SOLOMON J Page 10 r 1, an application in the court's inherent jurisdiction to withdraw a notice of intention to abide, or an application for leave under r 6.11 of the New South Wales Uniform Civil Procedure Rules, the principles are not materially dissimilar. 43 The principles that emerge from the decisions in New South Wales and the Court of Appeal in this jurisdiction may be summarised as follows: (1) The court's discretion to grant leave to withdraw a notice of intention to abide is unfettered but must be exercised judicially. (2) The discretion cannot be reduced to rigid principles. Each matter turns on its own facts. (3) The overriding consideration is the interests of justice. (4) In addition to the circumstances of the parties, case management principles are part of the evaluation of the interests of justice. (5) As a general principle, the interests of justice require that a defendant with an arguable case should not be shut out from presenting a case unless there are substantial countervailing considerations. (6) Generally, leave should be granted where an appearance has been entered by mistake or accident but not when a deliberate choice was made, particularly taking into account the risks involved after receiving competent legal advice. (7) By corollary, leave is more likely to be given where the notice was filed without the benefit of legal advice. (8) It is necessary to consider whether there is real prejudice to the other party. (9) Where there is prejudice, consideration should be given to whether that prejudice can be overcome or reasonably ameliorated by attaching conditions to the grant of leave. -- 10 of 12 -- [2026] WASC 320 SOLOMON J Page 11 Disposition 44 In my assessment, the interests of justice require the granting of conditional leave to Michele to withdraw his notice of intention to abide. That is for a number of reasons. 45 Firstly, I accept that Michele has been challenged by serious mental and physical health conditions. In particular, I accept that at the time he filed his notice of intention to abide, Michele was suffering from disabling mental health difficulties. 46 Secondly, Michele filed his notice of intention to abide without the benefit of legal advice. 47 Thirdly, Michele appears to have an arguable defence and counterclaim. Indeed, in its written submissions, Platinum accepted that for the purposes of this application, that may be assumed to be so. 48 Fourthly, Platinum in any event will be required to prosecute its claim against, and defend the counterclaim from, Natalie. Michele seeks to advance the same defence and counterclaim. In those circumstances, the prejudice to Michele of not being able to defend the matter and prosecute his counterclaim plainly outweighs the prejudice to Platinum. 49 Platinum complains that if leave is granted at large it may be prejudiced because Michele will be at liberty to advance additional matters that go beyond the scope of the defence and counterclaim presently proposed by Natalie and Michele. That prejudice in my view is curable. Leave may be granted conditionally so as to prevent Michele from advancing matters beyond the scope of those advanced, or proposed to be advanced, by Michele. It seems unlikely in any event that Michele's defence and counterclaim will differ in any material respect from that of Natalie. 50 I accept that the application comes late in the sense that the matter has been on foot for some years and has been the subject of many court documents. That is largely (but not entirely) due to the defendants' financial difficulties and their inability to retain legal counsel. Nevertheless, Michele's re-entry into the proceedings is not of itself likely to create delay that would not in any event ensue. Moreover, the regrettable reality is that the proceedings are not well advanced; the pleadings are yet to be resolved. -- 11 of 12 -- [2026] WASC 320 SOLOMON J Page 12 51 In all the circumstances, the interests of justice require Michele to be granted leave to withdraw his notice of intention to abide, conditional upon Michele being limited in his defence and counterclaim to the scope of the matters contained in the defence and counterclaim of Natalie. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. MS Associate to the Hon Justice Solomon 5 AUGUST 2026 -- 12 of 12 --