Bolton v Kerkvliet - [2001] WADC 189

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BOLTON & ORS -v- KERKVLIET & ANOR [2001] WADC 189

CORAM: COMMISSIONER GREAVES

HEARD: 5 JULY 2001

DELIVERED : 10 AUGUST 2001

FILE NO/S: CIVO 39 of 2001

MATTER :Application for Interpleader Relief against the claims of JACOBUS LEONARDUS KERKVLIET and PALDAR NOMINEES (ACN 009 019 452) in respect of the surplus money from the sale of 110 Robinson Road, Herne Hill
BETWEEN: CECILLE MILLIE BOLTON
First Applicant
HAROLD THOMPSON
Second Applicant
CAMPBELL KEITH PASCOE
Third Applicant
DAPHNE ROSE SEYMOUR
Fourth Applicant
GARY ALEXANDER GRIBBLE DUNN
Fifth Applicant
REUBEN PEARCE LANE
Sixth Applicant
LOIS ALBERTA LANE
Seventh Applicant
HAZEL MAY JONES
Eighth Applicant
CARMEL LAURENCIE DYBALL
Ninth Applicant
AND
JACOBUS LEONARDUS KERKVLIET
First Claimant
PALDAR NOMINEES PTY LTD (ACN 009 019 452)
Second Claimant

Catchwords:

Practice and procedure - Consent order - Power to vary - Whether good cause shown

Legislation:

Nil

Result:

Order varied

Representation:

Counsel:

First Applicant              :     Mr I K Bellamy
Second Applicant          :     Mr I K Bellamy
Third Applicant            :     Mr I K Bellamy
Fourth Applicant           :     Mr I K Bellamy
Fifth Applicant             :     Mr I K Bellamy
Sixth Applicant             :     Mr I K Bellamy
Seventh Applicant         :     Mr I K Bellamy
Eighth Applicant           :     Mr I K Bellamy
Ninth Applicant            :     Mr I K Bellamy
First Claimant               :     No Appearance
Second Claimant           :     Mr B P Wheatley

Solicitors:

First Applicant              :     Solomon Brothers
Second Applicant          :     Solomon Brothers
Third Applicant            :     Solomon Brothers
Fourth Applicant           :     Solomon Brothers
Fifth Applicant             :     Solomon Brothers
Sixth Applicant             :     Solomon Brothers
Seventh Applicant         :     Solomon Brothers
Eighth Applicant           :     Solomon Brothers
Ninth Applicant            :     Solomon Brothers
First Claimant               :     No appearance
Second Claimant           :     Murfett & Co

Case(s) referred to in judgment(s):

Greenpark Pty Ltd v Odin Inns Pty Ltd [1989] WAR 322

Case(s) also cited:

Nil

COMMISSIONER GREAVES: The applicants applied for interpleader relief by originating motion filed on 6 March 2001. The affidavits in support of the application reveal that the applicants obtained possession of the whole of the land contained in Certificate of Title Vol 1561 Folio 799 by order of the Supreme Court on 31 October 2000, the first claimant having defaulted under his mortgage to the applicants. It appears that the property was subsequently sold after the second claimant agreed not to apply for an extension of its caveat on condition, inter alia, that the solicitors for the applicants retain the surplus after sale in their trust account pending this application for interpleader relief. As at 19 March 2001, that surplus was $20,068.28.
The originating motion sought the following orders pursuant to O 17 of the Rules of the Supreme Court:
"1.The applicants pay the proceeds of the sale of the property known as 110 Robinson Road, Herne Hill being lot 7 on diagram 58356 the whole of the land contained in certificate of title volume 1561 folio 799 (the 'Property'), less the expenses of and incidental to such sale and less the amount due to the them under registered mortgage H181222 (the 'Money') into Court.
2.The Money be invested in the Public Trustee's Common Fund and earn interest accordingly.
3.Upon payment of the Money into Court:
3.1the second claimant deliver to the solicitors for the applicants a withdrawal of caveat, in registrable form, withdrawing registered caveat H403933;
3.2no further action be brought by the claimants against the applicants in respect of the proceeds of the sale of the Property; and
3.3the applicants be excused from further involvement in this action.
4.The applicants costs of this application be taxed and paid from the Money.
5.The question of costs as between the claimants be reserved.
6.The parties have liberty to apply."
On 19 March 2001, the court made an order for substituted service upon the first claimant and the originating motion as amended was adjourned. It came on for hearing in Chambers on 18 May 2001 when Mr Bellamy appeared for the applicants and Mr Wheatley appeared for the second claimant. There was no appearance by the first claimant. By consent, the court made the following orders:
"1.The applicants pay the proceeds of the sale of the property known as 110 Robinson Road, Herne Hill being Lot 7 on Diagram 58356 the whole of the land contained in certificate of title volume 1561 folio 799 (the 'Property'), less the expenses of and incidental to such sale and less the amount due to them under registered mortgage H181222 (the 'Money') into Court.
2.The Money be invested in the Public Trustee's common fund and earn interest accordingly.
3.Upon payment of the Money into Court:
3.1the second claimant deliver to the solicitors for the applicants a withdrawal of caveat in registrable form, withdrawing registered caveat H403933;
3.2no further action be brought by the claimants against the applicants in respect of the proceeds of sale of the Property; and
3.3the applicants be excused from further involvement in this action.
4.The applicant's costs of this application be taxed and paid from the Money.
5.The question of costs as between the claimants be reserved.
6.The parties have liberty to apply upon 48 hours written notice to the other parties.
7.At the time of payment into Court an affidavit by the applicant be filed exhibiting a statement certifying the result of the sale, the expenses incurred in connection therewith and any expenses deducted therefrom including full particulars thereof.
8.The originating motion otherwise be adjourned to a special appointment to determine the issue between the first and second claimant.
9.Notice of the special appointment and any other notice be served on the first claimant by facsimile to: 9593 6839 and by post to care of 23 Arabella Meander, Warnbro, WA, 6159 which shall be deemed sufficient service on the first claimant.
10.Within 7 days of today's date the applicants file full itemised particulars of the solicitor's accounts dated 15 March 2001 (x 2), 12 February 2001 and 9 January 2001."
The originating motion came on for hearing before me again on 29 May 2001 and on 5 July 2001. Counsel were then agreed that par 8 of the orders by consent of 18 May 2001 was deficient insofar as it should read:
"8.The originating motion otherwise be adjourned to a special appointment to determine the issue between the first and second claimant without the attendance of the applicants."
Counsel were also agreed that the consent orders of 18 May 2001 should not be extracted until further order.
Counsel for the second claimant submitted that order 3 made by consent on 18 May 2001 should be recalled because counsel had mistakenly agreed to that part of order 3 which provides that upon payment of the money into court, the applicants be excused from further involvement in the action.
Counsel for the second claimant submitted that the only agreement between the parties was that the applicants should be excused from attendance at the adjourned hearing of the originating motion, in accordance with par 8 of the orders. He submitted that the orders in par 3.3 and par 8 are inconsistent.
Counsel for the applicants did not concede the inconsistency and submitted further that there is no evidence upon which the Court can recall order 3 of 18 May 2001.
Counsel for the second claimant did not rely upon the slip rule. He submitted that an interlocutory consent order may be varied for mistake and relied upon the judgment of Brinsden J in Greenpark Pty Ltd v Odin Inns Pty Ltd [1989] WAR 322 at 324, 325. In that case, the court held that there was good cause to vary an interlocutory order by consent which required the respondent to answer certain interrogatories once it was shown that at least two of the interrogatories not answered were probably objectionable.
In the present case, counsel for the applicants submitted that there is nothing before the Court to show sufficient cause to vary order 3.3 of 18 May 2001.
In my opinion, notwithstanding the fact that the order in par 3.3 was sought in the originating motion as filed, it is plain on the face of the orders of 18 May 2001 that counsel for the second claimant did not agree to an order that the applicants be excused from further involvement in the action but only to their attendance at the adjourned hearing of the originating motion.
If this were not the case, the words "without the attendance of the applicants" in par 8 of the orders would be redundant.
I am therefore of the opinion that the second claimant has shown good cause for the order of 18 May 2001 to be varied to delete par 3.3 and to add such consequential orders as the Court thinks fit and upon which I shall hear counsel. Otherwise in accordance with par 8 of the orders of 18 May 2001, the originating motion should otherwise be adjourned.