Elston v Abou-Jaber
[2023] VCC 416
•9 March 2023 in open court (revised ruling delivered 23 March 2023 via email)
| IN THE COUNTY COURT OF VICTORIA AT Melbournemelbourne commercial DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-20-00410
| ROSS ELSTON | Plaintiff |
| v | |
| JAMES ABOU-JABER | Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 March 2023 | |
DATE OF RULING: | 9 March 2023 in open court (revised ruling delivered 23 March 2023 via email) | |
CASE MAY BE CITED AS: | Elston v Abou-Jaber | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 416 | |
REASONS FOR RULING
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Subject: APPLICATION TO SET ASIDE SUMMARY JUDGMENT
Catchwords: Setting aside summary judgment – permanent stay of execution of warrant – bankruptcy – rights and responsibilities of trustee in bankruptcy – judgment made on the papers – attendance at previous hearing of the application – Order 22.15 – Order 23.01
Legislation Cited: Bankruptcy Act 1966 (Cth); Civil Procedure Act 2010; County Court Civil Procedure Rules 2018; Transfer of Land Act 1958
Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B E Barr | Duffy & Simon Lawyers |
| For the Defendant | Ms L Collaris | HM Ong Lawyers |
HIS HONOUR:
Nature of the application
1This is an application by summons filed 27 January 2023 by the defendant (“Abou-Jaber”) seeking orders setting aside the summary judgment entered in favour of the plaintiff (“Elston”) on 3 August 2022 and permanently staying execution of warrant number W22012493214 issued by the Sheriff’s Office on 7 December 2022.
2I delivered my oral reasons setting out the gist of the decision and pronounced the orders at paragraph 50 below in open court on 9 March 2023. What follows is my revised reasons for ruling.
Factual background
3The proceeding began as an application under Order 53 of the County Court Civil Procedure Rules 2018 (“the Rules”) for the possession of land, being the property at 3 Hann Street, Pearcedale (“the Property”). In short, Elston has been the registered proprietor of the Property since May 2016. That was around the time the parties made an agreement whereby Elston would provide various moneys to purchase the Property and Abou-Jaber would be licensed to live at the Property. Elston paid the purchase price and Abou-Jaber was to make monthly interest payments. Elston alleges that Abou-Jaber failed to make these payments and, in about July 2019, Elston revoked the licence which he said he had granted Aboou-Jaber to live at the Property. Abou-Jaber continues to reside at the Property. The object of Elston’s Order 53 application was to obtain possession of the Property.
4Abou-Jaber claims that he had a beneficial interest in the Property since July 2006. At that time, Abou-Jaber’s former partner, Belinda Wagg became the sole registered proprietor of the Property. Abou-Jaber said that he paid the deposit, made all the loan repayments and paid most of the household bills. Abou-Jaber said that he and Ms Wagg separated in about 2015/2016. In order to buy out Ms Wagg, Abou-Jaber borrowed from Elston the amount outstanding on the bank loan. Under the terms of their arrangement, Elston was to be the sole registered proprietor of the Property until such time as Abou-Jaber repaid the loan to him. According to Abou-Jaber, there is a dispute as to the amount outstanding under the loan agreement between Abou-Jaber and Elston. No court has currently determined these contested factual matters.
Procedural history
5Elston commenced the proceeding by originating motion on 3 February 2020.
6On 10 June 2020 the court ordered that the proceeding continue as if commenced by writ.
7On 29 June 2020 Elston filed a statement of claim.
8On 15 July 2020 Elston obtained judgment in default of appearance.
9On 5 May 2021 Abou-Jaber, who at that time was self-represented, filed a summons seeking to set aside the default judgment.
10Abou-Jaber filed three affidavits in support of his application.
11On 5 July 2021 the court set aside the default judgment and Abou-Jaber was given leave to defend.
12On 30 July 2021 Abou-Jaber filed a defence and counterclaim.
13On 10 August 2021 Hui Ong (“Ong”), Abou-Jaber’s current solicitor, filed a notice of acting on behalf of the defendant.
14Between 25 August and 21 December 2021, the parties filed and served affidavits of documents. In addition, the defendant subpoenaed documents from various non-parties.
15On 15 December 2021, the parties engaged in a mediation which adjourned part-heard to January 2022. Although the parties resumed the mediation, they could not reach a settlement of their dispute.
16On 8 February 2022 Elston filed a summons in which he sought the following substantive orders:
(a) judgment for the plaintiff on the claim and counterclaim pursuant to Part 4.4 of the Civil Procedure Act 2010, alternatively Order 23 of the County Court Civil Procedure Rules 2018.
(b) further or alternatively, the defence and counterclaim dated 30 July 2021 is struck out pursuant to Order 23 of the County Court Civil Procedure Rules 2018.
(c) the plaintiff is entitled to vacant possession of the land described in certificate of title volume 8597 folio 224 and situated at 3 Hann Street, Pearcedale Victoria 3912.
(d) the Registrar of Titles is ordered pursuant to section 90(3) of the Transfer of Land Act 1958 to remove caveat AU698900U from folio of the Register volume 8597 folio 224.
17Elston filed a short affidavit in which he said that Abou-Jaber had been bankrupt and that his right to defend the claim was not vested in him but in his trustee in bankruptcy.
18Abou-Jaber became bankrupt on 2 May 2011 and was discharged by law on 7 September 2019.
19On 7 March 2022 Ong sent an email to the Australian Financial Security Authority asking about the amount Abou-Jaber would be required to pay pursuant to section 153A of the Bankruptcy Act 1966 (Cth) to annul his bankruptcy. The AFSA advised Ong that the estimated bankruptcy payout figure was $71,971.71.
20On 10 March 2022, Judge Burchell heard Elston’s application for summary dismissal. At the conclusion of the hearing, Her Honour made the following orders:
OTHER MATTERS:
A. The defendant was placed into bankruptcy on 2 May 2011 and was discharged on 7 September 2019. In the intervening period, the plaintiff became the registered proprietor of the property the subject of this proceeding and entered into an agreement with the defendant. The defendant is in possession of the property. The plaintiff contends that the operation of the Bankruptcy Act 1966 (Cth) makes the defendant’s present action unmaintainable and has sought relief under Part 4.4 of the Civil Procedure Act 2010 (Vic), alternatively, under r23 of the County Court Civil Procedure Rules 2018 (Vic).
B. The defendant informed the Court that he intends to make an application to obtain an annulment of his bankruptcy by making a payment pursuant to s153A of the Bankruptcy Act 1966 (Cth) and by application under s153B of the Bankruptcy Act 1966 (Cth). If granted, this would remove any issue as to standing and/or any procedural bar.
C. The Court will stay the proceeding pending the determination of the annulment application. If no annulment application is made by the defendant, or if the application is refused by the specified date, the Court proposes orders that:
i. there be judgment for the plaintiff on the claim;
ii. the counterclaim be dismissed without adjudication on the merits;
iii. the plaintiff recover from the defendant vacant possession of the land described in certificate of title volume 08597 folio 224, situated at and known as 3 Hann Street, Pearcedale Victoria 3912;
iv. the stay on the execution of the warrant of possession filed on 11 August 2020 is lifted;
v. the Registrar of Titles is ordered pursuant to section 90(3) of the Transfer of Land Act 1958 (Vic) to remove caveat AU698900U from folio of the Register volume 08597 folio; and
vi. the defendant pay the plaintiff’s costs of and incidental to the proceeding, including any reserved costs, on a standard basis to be taxed in default of agreement, unless objections are received by the date specified (“the proposed orders”).
THE COURT ORDERS THAT:
1. The proceeding and the further hearing of the plaintiff’s summons dated 8 February 2022 are listed for a subsequent Administrative Mention on 23 May 2022, by which time the parties are to advise the Court in writing whether there are any objections to the proposed orders and if so whether any orders are sought by consent on the papers for the listing of the proceeding for trial.
2. Failure to comply with the Administrative Mention by the date specified may result in the proceeding being struck out without further notice.
3. The trial date fixed for 20 June 2022 and the estimate of 3-5 days is confirmed.
4. The orders of her Honour Judge Burchell made on 7 September 2021 are otherwise confirmed.
5. Reserve liberty to the parties to apply by email to the Commercial Division Registry ([email protected]) for further directions upon giving reasonable notice to all other parties.
6. The defendant’s solicitor must serve a copy of this order on the defendant’s trustee in bankruptcy as soon as reasonably practicable.
7. The defendant pay the plaintiff’s costs of the hearing this day fixed in the amount of $3,000.
8. The costs of the plaintiff’s summons dated 8 February 2022 are otherwise reserved.
21On 15 March 2022 Abou-Jaber paid the plaintiff’s costs of the 10 March hearing in the sum of $3,000.
22In April and May 2022 Abou-Jaber made enquiries with his debtors about settlement of his debts and also made enquiries with financiers regarding a possible loan. Abou-Jaber also sought advice about whether he should make an application for an annulment of his bankruptcy under s 153B of the Bankruptcy Act 1966 (Cth).
23On 16 May 2022 Abou-Jaber sought an adjournment of the administrative mention listed by Judge Burchell for 23 May 2022. Elston objected to the adjournment of the mention and sought immediate judgment against Abou-Jaber. On 24 May 2022, the court listed the matter for hearing on 7 June 2022.
24On 7 June 2022, both parties were represented by counsel at the hearing before Judge Ryan. Her Honour made the following orders.
OTHER MATTERS:
A. The Court notes this proceeding has a protracted history and that the defendant has been granted various indulgences in the past.
B. On 10 March 2022, the Court stayed the proceeding to allow the defendant to make an application to annul his bankruptcy. As at 2 June 2022, the defendant has not done so. The defendant seeks a further extension of time in which to obtain finance to have his bankruptcy annulled, which application was opposed by the plaintiff.
C. The Court was satisfied today that the defendant should be given one more opportunity to seek to have his bankruptcy annulled, which otherwise affects his standing and/or operates as a procedural bar in this proceeding.
D. Subject to special circumstances, the defendant ought not be granted any further extensions of time if by 22 July 2022 he is unable to obtain sufficient finance to have his bankruptcy annulled pursuant to s 153A of the Bankruptcy Act 1966 (Cth).
THE COURT ORDERS THAT:
1. The subsequent administrative mention which was listed on 23 May 2022 is adjourned to 22 July 2022, by which time the parties are to inform the Court in writing whether they are ready to proceed and if so whether any orders are sought by consent on the papers for the listing of the proceeding for trial.
2. Failure to comply with the administrative mention by the date specified may result in the proceeding being dismissed without further notice.
3. The trial fixed for 20 June 2022 on an estimate of 3-5 days is vacated.
4. Reserve liberty to the parties to apply by email to the Commercial Division Registry ([email protected]) for further directions upon giving reasonable notice to all other parties.
5. The defendant pay the plaintiff’s costs of the hearing this day fixed in the amount of $3,000.
25In about June 2022, Abou-Jaber advised Ong that he would not be able to raise the money necessary to annul his bankruptcy. On 8 July 2022 Abou-Jaber made an offer to his trustee seeking to buy the chose in action by which he could defend the plaintiff’s claim and make a counterclaim.
26On 20 July 2022 Abou-Jaber sought to adjourn the administrative mention listed by Judge Ryan for 22 July 2022. Abou-Jaber relied partly on his attempts to purchase the right of action from his trustee and partly upon the unavailability of counsel previously retained on his behalf, Mr Kirimof, who had been arrested by the police and was no longer practising as a barrister. Elston objected to the adjournment application.
27On 3 August 2022 when the matter came before Judge Burchell, she made the following orders:
OTHER MATTERS:
A. In paragraph C of the other matters of the orders of her Honour Judge Burchell dated 10 March 2022, it was noted that if the defendant did not make an application to obtain an annulment of their bankruptcy, or if the application was refused, by 23 May 2022, then the Court proposed to order that:
i. there be judgment for the plaintiff on the claim;
ii. the counterclaim be dismissed without adjudication on the merits;
iii. the plaintiff recover from the defendant vacant possession of the land described in certificate of title volume 08597 folio 224, situated at and known as 3 Hann Street, Pearcedale Victoria 3912;
iv. the stay on the execution of the warrant of possession filed on 11 August 2020 is lifted;
v. the Registrar of Titles is ordered pursuant to section 90(3) of the Transfer of Land Act 1958 (Vic) to remove caveat AU698900U from folio of the Register volume 08597 folio; and
vi. the defendant pay the plaintiff’s costs of and incidental to the proceeding, including any reserved costs, on a standard basis to be taxed in default of agreement, unless objections are received by the date specified (“the proposed orders”).
B. On 7 June 2022, her Honour Judge Ryan heard the defendant’s application for an extension of time to make an application to annul their bankruptcy. Her Honour was satisfied that the defendant should be given one more opportunity to seek to have his bankruptcy annulled and granted an extension of time until 22 July 2022. In the orders made, her Honour noted in paragraph D of the other matters in those orders that subject to special circumstances, the defendant ought not be granted any further extensions of time if by 22 July 2022 he is unable to obtain sufficient finance to have his bankruptcy annulled pursuant to s 153A of the Bankruptcy Act 1966 (Cth).
C. By email dated 20 July 2022, the defendant sought a further extension of time to make an application to have their bankruptcy annulled until 2 September 2022 on the grounds that:
i. the defendant is in the process of retaining new counsel; and
ii. the defendant has been corresponding with the defendant’s trustee in bankruptcy in respect of purchasing the defendant’s right to bring the counterclaim in the proceeding. The defendant indicated that the trustee advised that they would require four to six weeks to consider the defendant’s offer.
D. By email of the same date, the plaintiff objected to any extension of time on the grounds that:
i. no explanation was proffered for the defendant’s failure to make an application pursuant to s153A of the Bankruptcy Act 1966 (Cth).
ii. the step foreshadowed by the defendant, being obtaining an assignment of the right to defend and make a counterclaim in the proceeding, would not re-vest in the defendant any interest in the subject property, including any interest that entitles the defendant to possession. The plaintiff further stated that even if the defendant is able to obtain an assignment of that right, their view is that the defence still has no real prospects of success;
iii. the circumstances regarding the defendant’s counsel are irrelevant;
iv. the orders made by Her Honour Judge Ryan on 7 June 2022 note that “this proceeding has a protracted history and the defendant has been granted various indulgences in the past”, the defendant was being afforded “one more opportunity to seek to have his bankruptcy annulled”;
v. no explanation is given for the failure to take any steps during the period from Her Honour Judge Ryan’s orders on 7 June 2022 until contact was made with AFSA on 8 July 2022; and
vi. the prejudice to the plaintiff is manifest, extreme and cannot be cured by an award of costs. Compliance with the overarching purpose under the Civil Procedure Act 2010 dictates that the defendant ought not be permitted to delay the proceeding any further.
E. By email of the same date, the Official Trustee in Bankruptcy for the defendant informed the Court that while the Official Trustee is not presently a party to these proceedings and is in the Court’s hands as to how to proceed, the Official Trustee is supportive of the adjournment sought by the defendant so that the Official Trustee may have an opportunity to consider the claims made in the proceedings.
F. By email dated 22 July 2022, the plaintiff stated that the Court ought not to consider the email from the Official Trustee, as the Official Trustee is not a party to the proceedings, nor does it seek to be joined to the proceedings or otherwise seek leave to appear. The plaintiff went on to reiterate their opposition to any further extension granted to the defendant, and requested that the proposed orders be made, save that as the plaintiff now sought to be heard on costs, additional orders to those proposed should be made to enable the parties to file material in support of the determination of the costs of the proceeding.
G. By email of the same date, the defendant requested that in the event that the Court was not minded to the defendant’s request for an extension on the papers, the matter be listed for hearing before the Court.
H. By email of the same date, the plaintiff objected to the defendant’s request for a hearing, and again pressed for the proposed orders being made on the papers.
I. Having regard to the orders of her Honour Judge Ryan dated 7 June 2022 in which it was noted that the defendant ought not be granted any further extensions of time if by 22 July 2022 they were unable to obtain sufficient finance to have their bankruptcy annulled, and absent what the Court considers to be the special circumstances required to obtain a further extension, the Court does not consider it appropriate to grant a further extension, and will make the proposed orders on the papers without any further hearing.
J. On the question of costs, as the proposed orders deal with the issue of costs, with the defendant to pay the plaintiff’s costs of and incidental to the proceeding, including any reserved costs, on a standard basis to be taxed in default of agreement, the Court does not consider it appropriate that the issue of costs be other than that set out in the proposed orders.
THE COURT ORDERS THAT:
1. There is judgment for the plaintiff on the claim.
2. The counterclaim is dismissed without adjudication on the merits.
3. The plaintiff recover from the defendant vacant possession of the land described in certificate of title volume 08597 folio 224, situated at and known as 3 Hann Street, Pearcedale Victoria 3912.
4. The stay on the execution of the warrant of possession filed on 11 August 2020 is lifted.
5. The Registrar of Titles is ordered pursuant to section 90(3) of the Transfer of Land Act 1958 to remove caveat AU698900U from folio of the Register volume 08597 folio 224.
6. The defendant is to pay the plaintiff’s costs of and incidental to the proceeding, including any reserved costs, on a standard basis to be taxed in default of agreement.
28Notwithstanding the making of these orders, Abou-Jaber continued to negotiate with the trustee.
29On about 12 December 2022 Abou-Jaber received a notice to vacate the Property.
30Shortly before Christmas 2022, Ong negotiated a payment sufficient to annul Abou-Jaber’s bankruptcy. The trustee informed her that the amount required was now $27,541.08. Abou-Jaber paid this amount on 16 January 2023.
31On 28 February 2023 Abou-Jaber’s bankruptcy was annulled.
Defendant’s submissions
32Abou-Jaber raised a number of matters in his submissions.
33Abou-Jaber criticised Elston’s application for summary judgment on the basis that Elston’s affidavit of 2 February 2022 sworn in support of his application did not comply with Order 22.04(1) of the Rules. Abou-Jaber contended that the affidavit did not verify any of the matters pleaded in the statement of claim (save that Elston is and has been since 16 May 2016 the sole registered proprietor of the Property) and did not state the deponent’s belief that the defence has no real prospects of success.
34Because Judge Burchell made the order for summary judgment in chambers on the papers, Abou-Jaber argued that the order was made in the absence of the parties and, by definition, Abou-Jaber was not in attendance. As a result, he submitted that order 22.15 of the Rules gave the court the power to set aside the judgment.
35Abou-Jaber argued that the judgment against him was irregular and ought to be set aside as of right. He said that the irregularity arose because the plaintiff’s supporting affidavit failed to properly verify the cause of action and comply with the court’s rules.
36Alternatively, Abou-Jaber argued that, if the judgment were regular, then having regard to the four factors commonly considered when addressing applications to set aside default judgment, the court should set aside the judgment. These factors were:
(a) whether the defendant had a defence on the merits;
(b) the reason for the defendant’s default giving rise to the default judgment;
(c) whether the defendant had applied promptly to set aside the default judgment; and
(d) whether, if the judgment were set aside, the plaintiff would suffer any irreparable injury which could not be compensated by an order for costs.
37Abou-Jaber contended that:
(a) he had a defence on the merits as evidenced in his earlier application to set aside the default judgment against him in 2020
(b) the order for judgment was made because Abou-Jaber’s bankruptcy had not been annulled and this position had now been rectified with the annulment occurring on 28 February 2023
(c) there was a delay of about 6 months between the judgment and the defendant’s application to set it aside. Abou-Jaber argued that during that time he strove to procure the annulment of his bankruptcy. He argued that there was no point in applying to set aside the judgment until the annulment had been procured;
(d) there was no irreparable prejudice which Elston would suffer if the judgment was set aside.
Plaintiff’s submissions
38Elston’s principal argument was that the court had no power to set aside the summary judgment because the threshold requirement, namely, that Abou-Jaber did not attend the hearing of the summary judgment application, had not been satisfied.
39Elston noted that Abou-Jaber’s prime complaint seemed to be that he did not attend the hearing on 3 August 2022 (following the administrative mention on 22 July) at which the court made the order for judgment. But Elston contended that this was inconsistent with the history of the litigation.
40Judge Burchell heard Elston’s summons 10 March 2022. Both parties were represented at the hearing before Her Honour. Judge Burchell did not finally dispose of the proceeding then. She granted Abou-Jaber another indulgence by staying the proceeding until an administrative mention on 23 May 2022. Abou-Jaber applied to adjourn that mention. When she heard the application on 7 June 2022, Judge Ryan adjourned the administrative mention until 22 July 2022. Abou-Jaber sought to further adjourn the administrative mention to a date not before 2 September 2022. Elston opposed this further adjournment. Judge Burchell then made the order for judgment on 3 August 2022, thereby refusing Abou-Jaber’s request for a further adjournment.
41Elston argued that, given the history of the litigation Abou-Jaber’s application was contrived for a number of reasons. First, it took no account of the fact that the plaintiff’s summons seeking summary judgment was the subject of a hearing before Judge Burchell on 10 March 2022 and that, by his barrister Mr Kirimof, Abou-Jaber did attend that hearing. Elston contended that the summary judgment application was effectively determined on that date subject to the potential annulment application referred to in the “Other Matters” section of the court order.
42Secondly, the 22 July 2022 listing was an administrative mention and not the hearing of a substantive application which a party could attend either in person or by a legal representative. Thus, it was irrelevant whether or not Abou-Jaber could or did attend court on 22 July 2022.
43Thirdly, the legislative purpose of Order 22.15 was to permit a party to be heard on a summary judgment application under that rule and, more generally, in a proceeding where the circumstances were such that they did not attend on the hearing of the application. In the present case, Abou-Jaber did attend before Judge Burchell on 10 March 2022 and also before Judge Ryan on 7 June 2022.
44Finally, a court should not be compelled to list a further hearing of a summons at the request of a party simply for the sake of avoiding the possibility that the same party might subsequently contend that they were not present at the hearing of the application. Here, in July 2022, Abou-Jaber requested the opportunity to be heard for a second time on the summary judgment application.[1] Given the history of the litigation, the indulgences already granted to Abou-Jaber and his inability to annul his bankruptcy, the court was not required to agree to that request. It would interfere unduly with the court’s case management procedures if a party in Abou-Jaber’s position could request unnecessary hearings.
[1]See paragraph G in “Other Matters” in Judge Burchell’s Order made 3 August 2022
Analysis
45In my view, Abou-Jaber’s application should be dismissed.
46The court heard extensive argument regarding Elston’s application for judgment in March 2022. After hearing from counsel for both parties, Judge Burchell effectively heard and determined the application subject to what she noted in “Other Matters” about the annulment application. Abou-Jaber was present and heard again through his barrister on 7 June 2022 before Judge Ryan. The administrative mention scheduled for 22 July 2022 was not the hearing of the application which a party could attend. An administrative mention is a process by which the parties are prompted to submit proposed consent orders for the conduct of the proceeding. It is not a court hearing and no appearance at court is required.[2] For that reason, it is irrelevant that Abou-Jaber could not attend on that date.
[2]See County Court of Victoria Commercial Division Omnibus Practice Note PNCO 2-2022 at G.7 [101]
47Secondly, the intent or statutory purpose of Rule 22.15 is to provide a party with natural justice or procedural fairness so that the party is able to rely upon material and make argument and submissions to a court in connection with an application which affects that party. Elston argued, and I agree, that Abou-Jaber has received procedural fairness inasmuch as, at the March hearing before Judge Burchell, and later before Judge Ryan, there was ample opportunity which the defendant availed himself of to make representations and put evidence before the court.
48Thirdly, Abou-Jaber’s submissions referred to at paragraphs 32-37 above proceed on the erroneous basis that Elston sought summary judgment pursuant to Order 22. In fact, Elston relied upon Order 23. The distinction is important. Under Order 23.01 a party can seek summary determination of a proceeding or a claim in a proceeding, if the claim or defence is scandalous, frivolous, vexatious or an abuse of process. The gist of the application is that there is no amendment which the respondent to the application can make which will rectify the pleading. The claim or defence is so fundamentally defective in fact and/or law that no change to the pleading can save it. In this case, Elston argued that Abou-Jaber’s insuperable problem was his bankruptcy and the consequential rights and responsibilities of his trustee in bankruptcy. This prevented Abou-Jaber from having the legal ability to defend Elston’s claim and propound a counterclaim. I consider that the court does not need to examine whether the default judgment was entered regularly or not by reference to Order 22.
49Further, as a matter of construction of the Rules, I am not satisfied that Order 22.15 can be interpreted so as to permit an avenue of potential redress regarding an application made under Order 23.01. The latter Order does not include an equivalent to Order 22.15.
Conclusion
50For the reasons set out, I find that:
(a) the summons filed by the defendant on 27 January 2023 is dismissed.
(b) the stay on the execution of the warrant number W22012493214 issued by the Sherriff’s Office of Victoria on 7 December 2022 is lifted.
(c) the defendant pay the plaintiff’s costs of and incidental to the summons, including any reserved costs, on an indemnity basis fixed in the sum of $12,807. The operation of this order is to be stayed for 28 days.