MELGLOW PTY LTD -v- BALLYGROWMAN PTY LTD [2016] WASC 383

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 383
Case No:	CIV:2707/2016	Heard:	14 NOVEMBER 2016
Coram:	BANKS-SMITH J	Delivered:	22/11/16
No of pages:	20	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	MELGLOW PTY LTD BALLYGROWMAN PTY LTD REGISTRAR OF TITLES
Catchwords:	Practice and procedure Originating summons for order extending caveat Where parties and court assume proceedings issued Where interim orders made by consent Where error in filing later disclosed Application to set aside interim orders Whether proceedings a nullity or irregular Whether sealed Whether issued Whether O 2 r 1 of the Rules of the Supreme Court 1971 (WA) available to regularise
Legislation:	Rules of the Supreme Court 1971 (WA), O 2 r 1, O 58 r 14
Case References:	Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1 Bell v Cribb [2013] WASC 32 Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 Davies v Lewis [2001] NTSC 105; (2001) 11 NTLR 81 Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372 Esanda Finance Corporation Ltd v McInerney (1997) 18 SR (WA) 84 Ianello v Bottoli (1998) 19 SR (WA) 27 Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874 LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134 Metroinvest Ansalt v Commercial Union Assurance Co plc [1985] 1 WLR 513 Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 National Australia Bank Ltd v Meehan (Unreported, VSCA, 8407 of 1993, 24 February 1994) Re Commercial Union Assurance Co (Ltd) (1899) 18 NZLR 585 Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549 The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MELGLOW PTY LTD -v- BALLYGROWMAN PTY LTD [2016] WASC 383 CORAM : BANKS-SMITH J HEARD : 14 NOVEMBER 2016 DELIVERED : 22 NOVEMBER 2016 FILE NO/S : CIV 2707 of 2016 BETWEEN : MELGLOW PTY LTD

Plaintiff

AND

BALLYGROWMAN PTY LTD

First Defendant

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Practice and procedure - Originating summons for order extending caveat - Where parties and court assume proceedings issued - Where interim orders made by consent - Where error in filing later disclosed - Application to set aside interim orders - Whether proceedings a nullity or irregular - Whether sealed - Whether issued - Whether O 2 r 1 of the Rules of the Supreme Court 1971 (WA) available to regularise

Legislation:

Rules of the Supreme Court 1971 (WA), O 2 r 1, O 58 r 14

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr J C Yeldon

First Defendant : Ms R R Joseph

Second Defendant : No appearance

Solicitors:

Plaintiff : Robertson Hayles Lawyers

First Defendant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASC 383
Decision Date: 22 NOVEMBER 2016

CaseChat Overview and Summary

In the case of Melglow Pty Ltd v Ballygrowman Pty Ltd, the dispute arose when Melglow sought to extend a caveat against the registration of a mortgage by Ballygrowman. The matter was heard in the Supreme Court of Western Australia. The primary issue before the court was whether the originating summons filed by Melglow was validly issued and if the interim orders made by consent could be set aside due to an error in filing. The court had to determine if the proceedings were a nullity or irregular and whether the sealed and issued proceedings could be regularised under Order 2 Rule 1 of the Rules of the Supreme Court 1971 (WA).

The court examined the procedural history of the case, including the error in the filing of the originating summons and the subsequent consent orders. It considered whether the proceedings could be considered issued and sealed despite the error, and if Order 2 Rule 1 was applicable to regularise the irregular proceedings. The court held that the proceedings were indeed issued and sealed, and that the error did not render the proceedings a nullity or irregular to the extent that they could not be regularised. Consequently, the application to set aside the interim orders was dismissed.

The court's reasoning was grounded in the procedural rules and the principle that the court should not allow irregularities to defeat the substantive rights of the parties. It found that the error in filing did not invalidate the proceedings as they were still considered issued and sealed, and the consent orders were validly made. The court held that Order 2 Rule 1 could be applied to regularise the proceedings, thereby dismissing the application. The final orders of the court were to dismiss the application made by Melglow.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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