Miller v M (Murray) Franconi and Associates
[2000] WASC 175
•7 JULY 2000
MILLER & ANOR -v- M (MURRAY) FRANCONI & ASSOCIATES [2000] WASC 175
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 175 | |
| Case No: | CIV:2005/1998 | 21 & 22 JUNE 2000 | |
| Coram: | MASTER BREDMEYER | 7/07/00 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Default judgment on assessment of damages set aside | ||
| PDF Version |
| Parties: | JULIE-ANN MILLER VYSTEN PTY LTD (ACN 009 238 141) M (MURRAY) FRANCONI & ASSOCIATES |
Catchwords: | Default judgment Setting aside as irregular |
Legislation: | Business Names Act 1962 (WA), s 5(1)(a) Rules of the Supreme Court (WA), O 13 r 10, O 72 r 12 Stamp Act 1921 (WA), s 27(1), s 27(3) Supreme Court Act 1935 (WA), s 32, s 142 |
Case References: | Bryan v Maloney (1995) 182 CLR 609 Building Guarantee & Discount Co Pty Ltd v Dolejsi [1967] VR 764 Hawkins v Clayton (1988) 164 CLR 539 Mackwell v Petkovic (1999) 20 WAR 367 Palmer v Prince [1980] WAR 61 Pullen v Gutteridge & Ors [1993] 1 VR 27 Rolland & Anor v Bank of WA Ltd, unreported; FCt SCt of WA; Library No 980498; 3 September 1998 The City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463 Hamp-Adams v Hall [1911] 2 KB 942 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Lam v Gulic (1979) 25 ACTR 46 Lazard Brothers & Co v Midland Bank Ltd [1933] AC 89 Re Willshire-Smith (1994) 48 FCR 371 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- VYSTEN PTY LTD (ACN 009 238 141)
Plaintiffs
AND
M (MURRAY) FRANCONI & ASSOCIATES
Defendant
Catchwords:
Default judgment - Setting aside as irregular
Legislation:
Business Names Act 1962 (WA), s 5(1)(a)
Rules of the Supreme Court (WA), O 13 r 10, O 72 r 12
Stamp Act 1921 (WA), s 27(1), s 27(3)
Supreme Court Act 1935 (WA), s 32, s 142
Result:
Default judgment on assessment of damages set aside
(Page 2)
Representation:
Counsel:
Plaintiffs : Mr R R Cywicki
Defendant : Mr M D Cole
Solicitors:
Plaintiffs : E N Stamatiou & Co
Defendant : Terrace Law
Case(s) referred to in judgment(s):
Bryan v Maloney (1995) 182 CLR 609
Building Guarantee & Discount Co Pty Ltd v Dolejsi [1967] VR 764
Hawkins v Clayton (1988) 164 CLR 539
Mackwell v Petkovic (1999) 20 WAR 367
Palmer v Prince [1980] WAR 61
Pullen v Gutteridge & Ors [1993] 1 VR 27
Rolland & Anor v Bank of WA Ltd, unreported; FCt SCt of WA; Library No 980498; 3 September 1998
The City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463
Case(s) also cited:
Hamp-Adams v Hall [1911] 2 KB 942
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Lam v Gulic (1979) 25 ACTR 46
Lazard Brothers & Co v Midland Bank Ltd [1933] AC 89
Re Willshire-Smith (1994) 48 FCR 371
(Page 3)
1 MASTER BREDMEYER: This is an application by the defendant to set aside a default judgment and an ex parte judgment for the assessment of damages. The default judgment was entered on 15 July 1999 in these terms:
"No appearance having been entered to the writ of summons by the defendant herein, it is this day adjudged that the defendant do pay to the plaintiffs the value of the damages to be assessed."
2 The final judgment after assessment of damages, which was heard by me on 27 January 2000, was in these terms:
"It is this day adjudged that:
(1) The defendant do pay to the firstnamed plaintiff $35,497.56 and do pay to the secondnamed plaintiff $70,719.85.
(2) The defendant pay the plaintiff's costs of the assessment of damages, including any reserved costs, and of the action, to be taxed."
3 Delay in bringing an application to set aside a judgment in default is not in itself fatal, but it is a matter to be taken into account in the exercise of discretion and as the delay increases it becomes a more weighty matter to be considered: Seaman 13.10.3. "If the judgment is irregular, the defendant is entitled to have it set aside ex debito justitiae and without terms … He has that entitlement when he has not been served with the writ … or if the judgment is for too much … or is against a person under a disability." See Seaman 13.10.4. The plaintiff will usually be ordered to pay the defendant's costs of setting aside an irregular judgment: Seaman 13.10.5. The general rule is that when a judgment in default has been regularly entered it will not to be set aside unless the court is satisfied that there is a defence on the merits, and instances of departure from the general rule are rare. The application should be supported by affidavit evidence which discloses a defence on the merits and explains the failure to comply with the rules and any delay in bringing the application: Palmer v Prince [1980] WAR 61 at 62 and Seaman 13.10.6.
4 These judgments are said to be irregular in a number of ways. Firstly, it is said, service was improper. The writ was issued on 4 September 1998. The plaintiffs were then Julie-Ann Miller and Sung Chee Chen. The endorsement of claim on the writ reads:
(Page 4)
- "The plaintiffs' claim is for damages for the professional negligence of the defendant with respect to an instruction to lodge a mortgage over property owned by Zetland Pty Ltd which mortgage was to secure the sum of $45,000, and for interest on such damages pursuant to s32 of the Supreme Court Act 1935."
- The plaintiff had difficulty serving the defendant. An order for substituted service was made by Master Sanderson on 4 April 1999 that a copy of the order and of the writ be served on (1) Mrs M Franconi (wife) of 93 Hawkins Road, Jandabup, and on (2) Katherine Urquhart of Law Mutual, Level 2, 33 Barrack Street, Perth.
5 On 28 April 1999 the process server served a copy of a writ and a copy of the chamber summons for substituted service on Mrs M Franconi at 93 Hawkins Road, Jandabup. On 30 April 1999 he served a copy of the writ and a copy of the chamber summons for substituted service on Ms Katherine Urquhart. Note that in neither case did he serve a copy of the order for substituted service. I note that the order for substituted service was not extracted until 11 May. The extracted order for substituted service was served on Mrs M Franconi at 93 Hawkins Road, Jandabup on 11 June 1999, which was before the default judgment was entered, as I have said, on 15 July 1999. The extracted order for substituted service was not served on Ms Urquhart.
6 I consider that the failure to serve Mrs Franconi and Ms Urquhart with a copy of the order for substituted service at the same time as serving the writ is not a fatal irregularity. I consider, in respect of Mrs Franconi, that the defect was remedied by the later service of the order upon her. Overall I consider these defects of service are minor and do not justify setting aside the initial judgment.
7 The second irregularity said to justify the setting aside of the judgments is that the default judgment was obtained against a non-existing entity. The defendant's argument is that the defendant named in the writ, M (Murray) Franconi & Associates, did not exist as at the date of issue of the writ or at the date of substituted service. Mr Franconi has produced a business name search showing that he, Mauro Franconi, of 93 Hawkins Road, Wanneroo 6056 was the person carrying on business under the business name "M Franconi & Associates"from 1 May 1991 to 9 August 1997. Between those dates he carried on that business at 26 Milligan Street, Perth and between 1 May 1994 and 9 August 1997 he also carried on that business at Unit 3, 939 Wanneroo Road, Wanneroo.
(Page 5)
8 Section 5(1)(a) of the Business Names Act 1962 (WA) provides that a person shall not either alone or in association with other persons, carry on business in the State under a business name unless the business name consists of the name of that person and the name of each other person, if any, in association with whom that person is carrying on business without any addition.
9 Order 72 r 12 of the Supreme Court Rules provides that an individual carrying on business within the jurisdiction in a name or style other than his own name, may be sued in that name or style as if it were the name of a firm, and Rules 2 to 11, so far as they are applicable, apply as if he were a partner and the name in which he carries on business were the name of his firm.
10 Mr Franconi was not, at any time, carrying on business with any associates, despite his business name. He was a sole trader. When his business name became deregistered the words "and Associates" became redundent. I consider O 72 r 12 did not apply when the writ was issued became Mr Franconi was not at that time carrying on business in the business name. He was no longer carrying on business at all. He should have been sued in his own name. In the circumstances that he was no longer carrying on business in the business name, and that, even when he was, he was a sole trader, the tag "and Associates" was otiose and meaningless. I consider it just to vary the judgment under O 13 r 10 and delete "and Associates". If these judgments do not apply to him I ask why (rhetorically) is he trying to set them aside?
11 To return to the narrative for a moment, directions were given on 30 November 1999 to the plaintiff for the assessment of damages. Order 2 provided:
"The plaintiffs do, not less than 21 days before the day fixed for the assessment of damages, serve a notice of appointment for hearing on the defendant at the address for substituted service."
- Leave was given for the plaintiffs to rely at the assessment of damages on the affidavits of Julie-Ann Forcum sworn 23 July 1999, Sung Chee Chen sworn 6 October 1999 and Amando Pisconeri sworn 4 October 1999. Copies of these affidavits were ordered to be served on the defendant "at the address for substituted service" not less than 21 days before the day fixed for the assessment.
12 I note that these orders referred to "the address for substituted service", whereas the order for substituted service of 9 April 1999
(Page 6)
- provided for two addresses. Nevertheless, I consider the directions for assessment allowed for service on one of the two earlier addresses, and, of those two addresses, the address of Mrs M Franconi of 93 Hawkins Road, Jandebup was the better address. I say that because she was the estranged de facto wife of Mr Franconi and, although relations were not good between them according to him, they had some contact through their children. Also, service upon Ms Katherine Urquhart of Law Mutual was likely to be of little assistance. As I understand it from the papers, Law Mutual declined to offer indemnity cover to Mr Franconi or to represent him, so were not really interested in the litigation.
13 The assessment papers were served on Mrs M Franconi at 93 Hawkins Road, Jandabup on 14 December 1999. The papers were:
(a) the default judgment dated 15 July 1999;
(b) the directions for assessment of damages extracted 10 December 1999;
(c) copy letter from Acting Principal Registrar Johnson dated 6 December 1999;
(d) affidavit of Julie-Ann Forcum from 23 July 1999;
(e) affidavit of Sung Chee Chen sworn 6 October 1999; and
(f) affidavit of Amando Pisconeri sworn 4 October 1999.
14 Mr Franconi has served two affidavits in support of his application to have the default judgments set aside, one sworn 11 April 2000 and the other sworn 8 June 2000. In the first of those affidavits he stated that he sold his legal practices and ceased practising law at the end of 1998. He says he had separated from his de facto spouse, Helen Franconi, on 13 August 1996. They had never married but she had adopted his surname. The breakdown of their relationship was not amicable. He left their home at 93 Hawkins Road, Jandabup and thereafter lived at two addresses. Helen was not aware of his address as he kept it secret to avoid her harrassing him. I quote from his affidavit:
"9. I was unaware of these proceedings or that anyone was attempting to serve these proceedings on me until Christmas 1999. I was then visiting 93 Hawkins Road, Jandabup to see my adult daughters at Christmas. When attending I was given a bundle of documents by Helen, being documents she had received in respect of the proceedings. I was due to depart the following day on a Veteran's Tennis Carnival in Adelaide (also attending the
(Page 7)
- Australian Tennis Open). I accordingly referred the matter to a barrister colleague who was handling another matter of mine. I was away from Perth until 29 January 2000. I came back with a bad cold and was sick for 10-14 days.
- 10. I then made an appointment to see my barrister friend. He told me he had been unable to do anything but gave me some advice. I then wrote to Law Mutual. The next development was in mid-March 2000 when Helen left for me a copy of the plaintiffs' solicitor's letter dated 7 March 2000, forwarding a copy of the final judgment entered 27 January 2000. On 10 March 2000 I instructed my present solicitors in respect of the matter. On 14 March 2000 my solicitors facsimiled the plaintiffs' solicitors advising they had instructions in respect of the matter. Annexed hereto and marked 'A' is a copy of that letter."
15 The third matter said to be an irregularity is that the default judgment of 15 July 1999 was in the names of Julie-Ann Miller and Sung Chee Chen, whereas the assessment of damages on 27 January 2000 was in the name of Julie-Ann Miller and Vysten Pty Ltd.
16 At the hearing of the assessment of damages on 27 January 2000 the plaintiff's counsel moved for an amendment of the endorsement on the writ, to change the name of the secondnamed plaintiff from Sung Chee Chen to Vysten Pty Ltd ("Vysten"). It was an oral application for change of name of a party and it was supported by the tender of an affidavit sworn by Sung Chee Chen on 25 January 2000. No notice of that application or service of that affidavit was made on the defendant. The affidavit in support recited that Mr Chen is a director of Vysten which is the trustee for the Chen Family Trust. He annexed a copy of the deed of trust. Mr Chen said he was the primary beneficiary of the trust, together with his wife. He said that when he purchased his units in the Zetland Unit Trust and paid the sum of $45,000 for them he purchased the units on behalf of the beneficiaries of the Chen Family Trust in his capacity as director of Vysten, the trustee company. (Mr Chen is incorrect in the facts there. The documents show that he purchased two units in the Zetland Unit Trust and that the $45,000 was a loan to Zetland Unit Trust.) Because he was a director of Vysten and because he was the primary beneficiary of the Chen Family Trust, he always assumed that he was the relevant party to sue the defendant because he had suffered the detriment. He so instructed his solicitors to commence the proceedings. However, he
(Page 8)
- said he was advised by solicitors and by counsel that the correct party to conduct the proceedings was Vysten as trustee for the Chen Family Trust, as the mortgage was granted to Vysten. Accordingly he applied under O 21 r 5 to amend the writ to substitute the correct name of the party. With reference to O 18 r 6, he attached to the affidavit a written consent from Vysten to be joined as plaintiff.
17 Although no notice of this application to amend the name of a party was given to the defendant, I nevertheless consider the change of name a minor irregularity only. One of the three affidavits served on the defendant via Mrs Franconi in support of the assessment was that of Mr Chen sworn 6 October 1999. That affidavit sets out how he came to invest $45,000 in the Zetland Unit Trust and how he instructed Mr Franconi to prepare and register the mortgage. A copy of the mortgage is annexed to the affidavit and it is a mortgage from Vysten as trustee for the Chen Family Trust to Zetland Pty Ltd. This is not, of course, express notice of an application to change the name. Nevertheless, to a trained legal mind it would indicate that an application to change the name of the plaintiff was likely to be made. I would not set aside the judgment on this basis.
18 A fourth claim for irregularity is that the plaintiffs' claim in negligence is said to be precluded by the Limitation Act1935 (WA). The negligence allegedly occurred through the failure to register the mortgage in 1990. The limitation period is six years and the writ was issued outside that period in September 1998. A cause of action in tort is said to accrue on the proof of damage and that was first sustained by the plaintiffs when the property was sold on 9 December 1991, which prevented them from registering the mortgages.
19 I do not agree with these arguments. The mortgages to Julie-Ann Miller and to Vysten was signed in July or August 1991 and should have been registered at that time. Each plaintiff has deposed on affidavit that they only discovered the mortgages were unregistered in about September 1993 when they received a notice of meeting of creditors from the liquidator. Attached to that notice was a report as to affairs of the company which listed their debts, the subject of the mortgages as unsecured. In this kind of tort the cause of action accrues when the damage becomes known or manifest. See Deane J in Hawkins v Clayton (1988) 164 CLR 539 at 587 - 588 with whom Mason CJ and Wilson J concurred on this point, at 534. Deane J's view was followed by the Appeal Division of the Victorian Supreme Court in Pullen v Gutteridge & Ors [1993] 1 VR 27 and assumed to be correct by Mason CJ, Deane and
(Page 9)
- Gaudron JJ in Bryan v Maloney (1995) 182 CLR 609 at 627. See also discussion in 5.10 Laws of Australia, par 61.
20 The defendant's next objection is that the endorsement of claim on the writ is bad and that the judgment on the assessment went beyond the claim as stated in the endorsement. There is, in this case, no statement of claim. The endorsement on the writ, which is quoted above, does not give a date for the defendant's failure to "lodge" (meaning, I think, register) a mortgage over the property. Order 6 r 1 requires the writ to be endorsed with a "concise statement of the nature of the claim made, and of the relief or remedy required in the action". Seaman at 6.1.1 states this:
"It is suggested that the words 'nature of the claim' are not directed to a description of particular events but to the disclosure of the causes of action relied upon so that the defendant may not only consider his defence generally but also the provisions of the Limitation Act 1935: Ruzeu v Massey-Fergusson (Aust) Ltd [1983] 1 VR 733 at 734, 737."
- It is true that the endorsement does not give a date, and it would have been better if it did, but I do not consider it is so defective that it amounts to an irregularity. The second objection is that the judgment on the assessment of damages exceeds the endorsement of claim which was not amended. The endorsement refers to professional negligence with respect to an instruction to lodge "a mortgage over property owned by Zetland Pty Ltd which mortgage was to secure the sum of $45,000". The evidence led on the assessment related to two mortgages, one in favour of the firstnamed plaintiff for $22,500 and one in favour of the second plaintiff, Vysten, for $45,000 and the order for damages relates to those two sums, plus interest. The first order on the assessment was
"The defendant do pay to the first named plaintiff $35,497.56 and do pay to the second named plaintiff $70,719.85."
(Page 10)
- sought damages in that sum, plus interest, at the rate of 14 per cent per annum. The damages were to be reduced by two dividends of $4877.10 and $2542.50 received from the liquidator of Zetland Pty Ltd in late 1994. The affidavit of Mr Chen in support of the assessment sought damages in relation to the mortgage to his company of $45,000, together with interest at the rate of 14 per cent per annum. He also deposed that he had received two dividends from the liquidator of $9754.20 and $5085 in late 1994. I consider the defendant in these affidavits was given notice that the plaintiffs would be asking for greater damages than those stated in the endorsement of claim. In those circumstances I do not consider the judgment for those sums an irregularity.
22 I consider the judgment is irregular in its calculation of interest. The endorsement of claim was for damages for professional negligence of the defendant's failure to lodge a mortgage over the property to secure $45,000 and interest on such damages pursuant to s 32 of the Supreme Court Act 1935. Attached to the affidavit of Mr Chen in support of the assessment, which was served on the defendant, was a schedule prepared by an accountant calculating the interest due on the loan. There was no similar schedule attached to the affidavit of Ms Forcum, but, at the hearing of the assessment, an appendix of interest calculations was tendered on her behalf. Those schedules were accepted by me in determining the judgment sum. Interest was calculated at 14 per cent per annum on the loans advanced and then credit was given for the liquidators' two distributions, the first on 18 July 1994 and the second on 28 November 1994. Interest was calculated on interest. The calculation went up to 28 November 1994. I then added interest at 6 per cent per annum from 28 November 1994 to the date of judgment, 27 January 2000.
23 Section 32 of the Supreme Court Act 1935 enables the court to order pre-judgment interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect. Subsection (2) provides that this section does not authorise the giving of interest upon interest.
24 I consider that the interest calculations are wrong for two reasons. First, interest upon interest is not allowed under s 32(2) of the Supreme Court Act. Secondly, 14 per cent per annum is not the appropriate rate of interest for the whole of the period from 10 July 1991 to 28 November 1994. The plaintiffs' action is for professional negligence for failing to register two mortgages. Had those mortgages been registered shortly after
(Page 11)
- they were executed they would have been discharged and paid out on the sale of the property on 9 December 1991. So interest should only run at 14 per cent between 10 July 1991 and 9 December 1991, a period of say five months. Thereafter I consider interest should run at a commercial rate. The rates for post-judgment interest fixed under s 142 of the Supreme Court Act, are a guide. They are as follows:
28.6.91 - 18.5.92 12%
19.5.92 - 30.7.92 8.5%
31.7.92 - 12.9.97 8%
13.9.97 - 6%
They are a guide but the court could fix a different rate. Allowances should be made for the two distributions of the liquidators.
25 When a judgment is entered for too much, it may be set aside as irregular or it may, on the motion of the plaintiff, be amended: Building Guarantee & Discount Co Pty Ltd v Dolejsi [1967] VR 764 and The City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463. Order 13 r 10 provides that "the court may, on such terms as it thinks just, set aside, or vary, any judgment entered in pursuance of this Order" (emphasis mine).
26 If this were the only irregularity, I would be prepared to recalculate the correct interest and vary the judgment. But when coupled with the stamp duty objection raised below, I consider it just to set aside the assessment of damages and allow the calculation of interest and the appropriate rate to be argued.
27 The defendant's next objection is that the second plaintiff tendered in evidence an unstamped mortgage. By s 27(1) of the Stamp Act 1921 (WA) no instrument chargeable with stamp duty shall be pleaded or given in evidence or admitted to be good, useful or available at law or equity unless it is duly stamped. The defendant relies on cases cited in Seamn 20.8.1B which includes Mackwell v Petkovic (1999) 20 WAR 367 at 377 (Full Court). That case held that if the court is satisfied as to the matters stated in s 27(3), then the prohibition of s 27(1) ceases to apply and the unstamped document can be pleaded and tendered in evidence.
28 This is an irregularity. The plaintiffs should have satisfied me that they had informed the Commissioner of Stamp Duties of the name of the person liable to pay the stamp duty and have supplied, or arranged to supply, the Commissioner with a copy of the document. The person liable
(Page 12)
- to pay the duty is Zetland Pty Ltd (in liq). This company went into voluntary liquidation in 1993. The joint liquidators were Maurice Hodgson Lyford and Christopher Michael Williamson.
29 Because of these two irregularities - the calculation of interest and the stamp duty point - I consider it just to set aside the assessment of damages. However, I do not propose to set aside the initial default judgment. As stated above, I do not consider it irregular. I also consider the defendant is late in applying to set it aside and has no good excuse for his lateness. He learnt of it in December 1999 and brought this application is 11 April 2000. I remind myself that he is a retired lawyer familiar with default judgments and how they can be set aside.
30 I also consider that he has no arguable defence on the merits to the first judgment. The latest Full Court case on this topic is now Rolland & Anor v Bank of WA Ltd, unreported; FCt SCt of WA; Library No 980498; 3 September 1998. As stated there by the Chief Justice at 41, for an application to set aside a default judgment to be successful, the defendant must present a credible defence demonstrating that if the default judgment was set aside and the matter was argued on its merits, the defendant would have a real prospect of success.
31 The instructions for the mortgages came from Mr Fazio whose company, Zetland Pty Ltd, was borrowing the money. The mortgages were prepared by Murray Bruce Elrington, a solicitor employed by Mr Franconi, in his office at 939 Wanneroo Road, Wanneroo. That office at that time traded under the name John Trewin & Co but a business name search shows that Mr Franconi was the sole proprietor of that name. Mr Fazio gave the instructions. He gave sworn evidence in the assessment before me that he instructed the defendant, I think via Mr Elrington, to prepare and register the mortgages. The plaintiffs were called in to sign the mortgages and I consider the defendant was not present at that time. At par 13 of his affidavit of 10 April 2000 his recollection is that he did not see either plaintiff in respect of the mortgages. Mr Franconi has read the files and tried to reconstruct what happened. It is his recollection that it was not the intention of Mr Fazio, nor of the plaintiffs, to have the mortgages registered. At the time the mortgages were prepared the property, the proposed subject of the mortgages, had been sold and it was his understanding that those mortgages were not to be registered unless the sale of the property did not proceed. He recalls Mr Elrington telling him this. He is unsure if Mr Fazio also told him this.
(Page 13)
32 Mr Elrington is now dead and is, of course, unavailable as a witness. Mr Fazio's evidence is clear that he instructed the defendant, I think through Mr Elrington, to register the mortgages. That evidence is supported in general terms by the two plaintiffs. The defendant was not present at the time the instructions were received so as to be able to give first-hand evidence on these matters. His hearsay evidence of what Mr Elrington told him is inadmissible. It is true that, if the client does not pay the stamp duty, the registration fees and the lawyers' fees, the solicitor is not required to use his own moneys to get the mortgages stamped and registered. But the defendant has produced no correspondence or evidence showing requests to Mr Fazio or to his company to pay the stamp duty and registration fees which went unheeded. In the circumstances of this case where the instructions were not given first-hand to Mr Franconi but rather to Mr Elrington and where the latter is dead, I consider the defendant has not presented a defence which would have a real prospect of success. The probabilities favour the plaintiffs' evidence that the mortgages were to be registered. I ask rhetorically, what is the point of having mortgages prepared if they are not to be registered? The aim of registration is surely to give those lenders priority on any payout. They can insist on a payout as a condition of letting the transfer be registered.
33 For all these reasons I will set aside my judgment on the assessment of damages on 27 January 2000. I decline to set aside the default judgment of 15 July 1999. I will amend the name of the defendant in that judgment.
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