Melglow Pty Ltd v Ballygrowman Pty Ltd

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



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2016] WASC 383
Case No:CIV:2707/201614 NOVEMBER 2016
Coram:BANKS-SMITH J22/11/16
20Judgment Part:1 of 1
Result: Application dismissed
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…
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Details
Case
[2016] WASC 383
Decision Date

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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