Permanent Custodians Ltd v Elite Grains Pty Ltd
[2014] WASC 495
•18 DECEMBER 2014
PERMANENT CUSTODIANS LTD -v- ELITE GRAINS PTY LTD [2014] WASC 495
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 495 | |
| Case No: | CIV:2473/2012 | 27 NOVEMBER 2014 | |
| Coram: | KENNETH MARTIN J | 18/12/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Interlocutory application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PERMANENT CUSTODIANS LTD AS TRUSTEES FOR AND UNDER THE MASTER TRUST DEED ESTABLISHING THE RURAL PROGRAM ELITE GRAINS PTY LTD RODNEY NORMAN CULLETON IOANNA CULLETON RONALD NORMAN CULLETON LESLEY DIANNE CULLETON |
Catchwords: | Default judgment Application to set aside default judgment on a basis of asserted fraud Second defendant bankrupt Acting in person Fresh action required to set aside judgment on basis of fraud |
Legislation: | Nil |
Case References: | Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246 de Lasala v de Lasala [1980] AC 546 DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 Duchess of Kingston's Case (1776) 1 Leach 146; 168 ER 175 Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 Hall v Hall [2007] WASC 198 Hall v Nominal Defendant (1966) 117 CLR 423 Investec Experien Pty Ltd (Formerly known as Experien Pty Ltd) v Robert Keith Will and Charlene Marella Caspersz as trustee for the Will Family Trust [2010] WASC 320 Jonesco v Beard [1930] AC 298 Kuwait Airways Corporation v Iraqi Airways Co (No 2) [2001] 1 WLR 429 Macquarie Leasing Pty Ltd v Culleton [2014] FCCA 1714 McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 Parker v Transfield Pty Ltd [2000] WASCA 382 R v Stanley [2014] QCA 116 Ridout v O'Brien [2004] WASC 137 Ronald v Harper [1913] VLR 311 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ELITE GRAINS PTY LTD
First Defendant
RODNEY NORMAN CULLETON
Second Defendant
IOANNA CULLETON
Third Defendant
RONALD NORMAN CULLETON
Fourth Defendant
LESLEY DIANNE CULLETON
Fifth Defendant
Catchwords:
Default judgment - Application to set aside default judgment on a basis of asserted fraud - Second defendant bankrupt - Acting in person - Fresh action required to set aside judgment on basis of fraud
Legislation:
Nil
Result:
Interlocutory application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Ms E L Blewett
First Defendant : No appearance
Second Defendant : In person
Third Defendant : Mr J Brown
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Solicitors:
Plaintiff : Corrs Chambers Westgarth
First Defendant : No appearance
Second Defendant : In person
Third Defendant : In person
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Case(s) referred to in judgment(s):
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246
de Lasala v de Lasala [1980] AC 546
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
Duchess of Kingston's Case (1776) 1 Leach 146; 168 ER 175
Grierson v The King [1938] HCA 45; (1938) 60 CLR 431
Hall v Hall [2007] WASC 198
Hall v Nominal Defendant (1966) 117 CLR 423
Investec Experien Pty Ltd (Formerly known as Experien Pty Ltd) v Robert Keith Will and Charlene Marella Caspersz as trustee for the Will Family Trust [2010] WASC 320
Jonesco v Beard [1930] AC 298
Kuwait Airways Corporation v Iraqi Airways Co (No 2) [2001] 1 WLR 429
Macquarie Leasing Pty Ltd v Culleton [2014] FCCA 1714
McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529
Parker v Transfield Pty Ltd [2000] WASCA 382
R v Stanley [2014] QCA 116
Ridout v O'Brien [2004] WASC 137
Ronald v Harper [1913] VLR 311
1 KENNETH MARTIN J: This matter came on before me, on Thursday, 27 November 2014. The underlying action CIV 2473 of 2012 is now in its third year. It can be characterised as a 'mortgage action', under O 62A of the Rules of the Supreme Court 1971 (RSC).
2 The notable events in these proceedings are two default judgments obtained by the plaintiff - entered, first, against the first defendant on 4 October 2012 and, then later, against the second and third defendants on 28 May 2013.
3 The matter was referred to me by Supreme Court Listings, outside my CMC list, for the purpose of setting down a two-day special appointment to hear the interlocutory application pursued under a 'summons' (document 32 on the court file).
4 The 'summons' was filed by the second defendant, Rodney Culleton, on 10 September 2014, purportedly on behalf of both himself and his wife Ioanna Culleton, who is the third defendant.
5 At the conclusion of a short hearing on 27 November 2014, I indicated that the defendants' application on their 'summons' of 10 September 2014 would be dismissed as an abuse of process of the Court, and that I would publish my reasons in due course. These are my reasons for that dismissal order.
Background
6 The 10 September 2014 application had earlier come on before Acting Master Gething in chambers, for mention on 14 October 2014. At that time the defendants' application was referred to a special appointment to be heard before a judge. The Acting Master ordered any further submissions and materials be filed by dates which were programmed at the time.
7 Mr Culleton in person has filed (obviously without any professional legal assistance) a range of materials, namely: written submissions of 4 November 2014; a series of affidavits (all sworn by him) of 10 September 2014, 15 September 2014, 13 October 2014, and 4 November 2014 (three separate affidavits); and a minute of orders sought in support of the 10 September 2014 summons which was filed on 13 October 2014 ('Minute of 13 October 2014'). Correspondence from Rodney and Ioanna Culleton to the Court asked for a two-day hearing.
8 The application of 10 September 2014 presents several peculiarities, some of which relate to the form of the 'summons'.
9 The document's title reads 'Summons To Set Aside Judgment Made on The 28th May 2013' with the words after 'Summons' written in ink. The application is seen to be dated on its second page as 15 September 2014 - in contrast, the applied filing stamp of this Court records the document as having been received at the Court registry on 10 September 2014.
10 The face of the summons indicates that it was prepared by 'Rodney Norman Culleton on behalf of the Defendants as Self representative to this matter'. This creates some uncertainty as to whom the application has been brought by and for whom Mr Culleton purports to act, given that there are five named defendants to the matter. Nonetheless, the view I prefer, for several reasons, is that the present application is by the second and third defendants and that Mr Culleton has only purported to act for his wife Ioanna Culleton (ie, the third defendant) and himself. First, the first defendant (Elite Grains Pty Ltd) is a corporation now in liquidation. Judgment has been obtained against that corporation and it was unrepresented on this application. Second, on 10 September 2014 Rodney and Ioanna Culleton filed a notice of intention to act in person, having previously been represented by lawyers in these proceedings. Third, as will be seen, Rodney and Ioanna Culleton were the defendants in this action against whom a default judgment of 28 May 2013 was obtained. Fourth, no judgment has yet been obtained against the fourth and fifth defendants - albeit they would not look to have filed any appearance or defence documentation. Other circumstances arose to further complicate matters by the time the application came before me on 27 November 2014, as I will describe below.
11 The top of the second page of the 'summons' contains a statement 'Application on the part of the defendant for the following Orders'. The reference to 'defendant' (ie, singular) is apparent. The document then proceeds to summon parties to attend before the Master in Chambers for the hearing of 'an application by the Second Defendant [ie, Rodney Culleton] for orders directions [sic]' in these terms:
1. The time for this hearing be abridged
2. A Declaration that the Orders made by Registrar Whitbread on 28th May 2013 are void ab initio.
3. Costs for a lump sum in the Discretion of the Court.
12 On 28 May 2013, in this action, Registrar Whitbread heard and determined an application by the plaintiff for default judgment against the second and third defendants. The plaintiff, on 28 March 2013, had filed, pursuant to RSC O 62A r 4, a chamber summons applying for the leave of the Court to obtain a judgment in default of appearance, indicating the terms in which that judgment was sought against the second and third defendants.
13 The plaintiff's May 2013 application for leave to obtain default judgment was on the basis of there being a default in the filing of any memorandum of appearance document by the second and third defendants. If a default judgment is sought in a mortgage action begun by a writ, then RSC O 62A r 4(1) requires the leave of the Court be obtained, before a judgment can be entered in default of appearance.
14 In support of the 2013 application for leave and judgment, the plaintiff filed three affidavits (by Bree Ludlow, sworn 20 March 2013; by Leanna Elizabeth Harrison, sworn 22 March 2013; and by Roland Andrew Davis, sworn 27 March 2013); a memorandum of conferral of 28 March 2013; a certificate of service (filed 12 April 2013) of the plaintiff's chamber summons of 28 March 2013 and other documents; including a certificate of the amount due by the second and third defendants (filed 28 May 2013).
15 On 28 May 2013, the plaintiff's application for leave to enter default judgment came on before Registrar Whitbread. That day she issued orders in terms:
1. No appearance having been entered by the second and third defendants herein leave is granted to the plaintiff pursuant to Order 62A rule 4(1) to enter judgment in the terms set out hereunder.
2. The second and third defendants within 28 days of service of this judgment on them deliver up to the plaintiff vacant possession of the properties at:
(a) Lot 4561 on Deposited Plan 115707 and being the whole of the land comprised in Certificate of Title Volume 2654 Folio 341.
(b) Lot 11583 on Deposited Plan 85525 and being the whole of the land comprised in Certificate of Title Volume 2654 Folio 342.
(c) Lot 4562 on Deposited Plan 115705 and being the whole of the land comprised in Certificate of Title Volume 2127 Folio 680.
(d) Lot 12085 on Deposited Plan 145002 and being the whole of the land comprised in Certificate of Title Volume 185 Folio 49A.
(e) Lot 11634 on Deposited Plan 102638 and being the whole of the land comprised in Certificate of Title Volume 185 Folio 45A.
(f) Lot 13061 on Deposited Plan 146803 and being the whole of the land comprised in Certificate of Title Volume 1514 Folio 738.
(g) Lot 350 on Deposited Plan 302061 and being the whole of the land comprised in Certificate of Title Volume 1795 Folio 578.
3. The second and third defendants pay to the plaintiff the sum of $4,672,859.14 being the amount due under the mortgage as at today's date together with interest in the sum of $926.98 per day from 28 May 2013 until payment in full in accordance with the terms of the mortgage.
4. The second and third defendants pay the plaintiff's costs of the action including the costs of the application for judgment to be taxed.
- [Note: It appears Rodney and Ioanna Culleton may have attended or sought to attend in person before the Registrar in chambers on 28 May 2013. Nonetheless, no memorandum of appearance document had been filed by them either to act in person, or to act by solicitors on their behalf.]
16 Orders issued by Registrar Whitbread on 28 May 2013 manifest at least three distinct features. First was to grant the leave of the Court to the plaintiff to enter a (default) judgment, in the terms specified, against the second and third defendants in default of appearance, pursuant to RSC O 60A r 1(c) and O 62A r 4(1). The second feature was then to actually enter the judgments, for (par 2) the vacant possession of land and as well (par 3) for a liquidated sum (see O 13 r 6), against the second and third defendants, in the terms specified. The judgment specified a liquidated sum indebtedness to the plaintiff (ie, $4,672,859.14) and ordered the vacant possession of realty to the plaintiff (ie, the seven named Lots) under order 2. A third feature was to award costs to the plaintiff.
Chronology of events
17 It is convenient to set out a brief chronology of some significant events underlying this matter, several of which bear upon the ultimate dismissal of this application.
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Determination
18 When at my behest the application was called on in chambers on 27 November 2014, Rodney Culleton and his wife Ioanna appeared at the bar table. I afforded Mr Culleton the leave, as he requested, to speak for himself. Mr Culleton informed me he was seeking to have the bankruptcy order made against him appealed. No more information about that was provided.
19 As regards Mrs Ioanna Culleton, a solicitor based on Norfolk Island had earlier indicated through email correspondence to my Associate that he had received instructions to represent Mrs Culleton. The requirements of RSC O 71 r 3(2) as regards an entry of a notice of acting for Ioanna Culleton had not been complied with. Nevertheless, I allowed a Mr John Brown to participate, listening in by a telephone link from Norfolk Island, during the hearing and to speak briefly on Mrs Culleton's behalf. A request was made by Mr Brown for Mr Culleton for an adjournment to consider the position. But given the circumstances I explain below, the adjournment would have served no purpose.
20 Written submissions and affidavit materials on file and submitted by Rodney Culleton for this intended application comprise several hundred pages of documentation. Numerous allegations and assertions are seen made, rendering it laborious to detect the grounds on which the second and third defendants are basing the application of 10 September 2014. Nevertheless, in this respect, I was ultimately informed by a statement of apparent 'grounds' - which appears on page 2 of the Culletons' Minute of 13 October 2014 and then again, in slightly expanded terms, at par 22 in the written submissions of 4 November 2014. Paragraph 22 in the latter document states (the text is set out exactly as it appears):
Grounds
McDonald v McDonald, High Court of Australia 45; (1965) 113CLR 529;
Fraud upon the court- a- -Bill Foreman and Roland Davis has always claimed that they were named as the power of Attorney Dated March 2010 for Permanent Custodians since 15 November 2010
b- Supreme Court and Chief Justice Martin who issued the summons at Roland Davis's Request : Existence of falsehood, Knowledge of falsehood, Intended Reliance; Damage; Actual Reliance; Fraud, surprise and fresh evidence
21 Enough, at this point, is seen to emerge from these as expressed grounds, and generally from the other allegations and assertions scattered across the Culletons' written submissions and affidavit materials, to divine that the second and third defendants are actually seeking to have the judgment against them of 28 May 2013 set aside on a basis it is a judgment that was obtained fraudulently. The case of McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 dealt with legal principles that apply where a new trial is sought on the ground of fraud and with the nature of the evidence that can support a conclusion that a verdict was obtained by fraud or deception. That decision does not appear, aside from presenting as an authority raising fraud, to have any other relevance to the foreshadowed application of the second and third defendants.
22 While it is not totally clear, reference to the Chief Justice Wayne Martin 'issuing' a summons appears to refer to the writ indorsement phrase 'Witness: The Honourable Wayne Stewart Martin, Chief Justice of Western Australia' that appears on page 2 of the writ of summons indorsed with a statement of claim, filed by the plaintiff on 29 August 2012, as the originating process of this action. That phrase referring to the Chief Justice of the day is, of course, a prescribed part of the general form for a writ of summons which appears as Form 1 of sch 2 of the RSC. Leaving curiosity aside, words seen in ground 'b' display further attempts to advance an allegation of fraud - regardless of who may have actually committed the fraudulent or deceitful conduct asserted.
23 How all that relates to an application seeking a (par 2) 'Declaration' that orders made on 28 May 2013, are 'void ab initio', is also less than clear. A claim that something - such as an agreement, act, decision or judgment - is 'void ab initio' would imply it had no legal effect from the moment it was made and therefore could not be relied upon or enforced subsequently to support, for example, an application to seize property under the Civil Judgments Enforcement Act 2004 (WA).
24 Taken together, the expressed grounds (a) and (b) and the relief sought ultimately render it apparent that the second and third defendants seek to attack the orders of 28 May 2013 by having the orders declared void ab initio, on a basis that the default judgment against them was (somehow) obtained or tainted by fraudulent conduct.
25 But a basal underlying difficulty, for the second and third defendants, is that such a challenge against the orders of 28 May 2013, grounded on a basis of alleged fraud, needs to be advanced in fresh proceedings and, even then, in a very controlled fashion, rather than on an interlocutory 'summons', issued within the present action.
26 It is another question ultimately unnecessary to resolve whether, as a person now declared bankrupt, Rodney Culleton is presently capable of beginning a fresh action without first obtaining the sanction of his trustee in bankruptcy: see Bankruptcy Act 1966 (Cth) s 5, s 55, s 60, and s 134.
27 The law in relation to actions alleging a judgment is bad as having been obtained by fraud is, in my assessment, clear. First, there needs to be a fresh action commenced alleging the fraud. Second, the sole issue in that fresh action will be whether or not fraud is proven. Further, fraud allegations need to be pleaded out in precise and clear terms and, at a trial, established upon a basis of strict proof.
28 Those principles, on my understanding, are clearly established in English and Australian case authorities at the highest levels. I turn to examine that line of case authority going back at least to the Duchess of Kingston's Case (1776) 1 Leach 146; 168 ER 175.
Case law
29 The position is conveniently captured in the latest edition of the text Handley KR, Spencer Bower & Handley - Res Judicata (4th ed, 2009). At [17.04] the learned author observes:
Proof that an English decision was procured by the fraud or collusion of the successful party is an answer to reliance on that judgment as an estoppel or otherwise for any purpose, including an action or other proceedings such as an application for bankruptcy.
30 At [17.04], the learned author continues:
The principle applies to an ex parte judgment, and one entered by consent which can be set aside on any ground, including fraud, on which a court can set aside a contract. An action for rescission of the judgment is the proper procedure because it enables the facts to be properly investigated ... The claimant must provide proper particulars and prove that since the judgment he has discovered fresh facts which alone, or in combination with those previously known, establish that the judgment was obtained by fraud or collusion. The action can be summarily dismissed if it does not disclose a proper case. The claimant must plead and prove that the party seeking the benefit of the judgment was responsible for the fraud. The perjury of a witness is not enough. The fraud of a stranger is only relevant if the judgment was ex parte. The action is not a rehearing and fraud is the only proper issue. The claimant is not entitled to a rehearing unless fraud is established. (footnote citations of authority omitted)
31 Supporting the position that the relief presently sought by Mr Culleton under this interlocutory summons is unavailable, absent a commencement of fresh proceedings, stands an array of authority, including the observations of Sir Owen Dixon in Grierson v The King [1938] HCA 45; (1938) 60 CLR 431, 436. His Honour observed:
In Chancery, rehearings, that is, appeals, were no longer admitted after enrolment of the decree, although an independent bill of review might be filed based upon error apparent or on facts newly discovered … Under the Judicature system an action may be brought to set aside a judgment obtained by fraud, but it is an independent proceeding equitable in its origin and nature.
32 As authority for the last stated proposition, Dixon J mentioned Ronald v Harper [1913] VLR 311, 318, per Cussen J; Halsbury's Laws of England (2nd ed, vol 19, page 266) and further cases there collected at 436, including a decision of the House of Lords, Jonesco v Beard [1930] AC 298.
33 In Jonesco, Lord Buckmaster, delivering the reasons of the House setting aside orders of the Court of Appeal, said (at 300):
It has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires.
…
Flower v Lloyd (1879) 10 Ch D 327, Cole v Langford [1898] 2 QB 36 and Baker v Wadsworth (1898) 67 LJ (QB) 301 show that the right procedure for that purpose is by action. That, however, there is jurisdiction in special cases to set aside a judgment for fraud on a motion for a new trial may be accepted. Hip Foong Hong v H Neotia & Co [1918] AC 888 is such a case: but it should be remembered that this case had come up to the Privy Council on this procedure and the board would naturally be unwilling to defeat a case at its last stage on such a ground.
If, however, for any special reason departure from the established practice is permitted, the necessity for stating the particulars of the fraud and the burden of proof are no whit abated and all the strict rules of evidence apply. The affidavits used must, therefore, be examined as on the final trial; every particle of hearsay evidence and reference to documents, not produced, must be excluded, and it must be kept constantly in mind that the rules which permit, on interlocutory proceedings, hearsay evidence, where the exact source of the information is afforded, have no more application than they would possess were the deponent a witness in the box speaking at the trial.
34 Viscount Dunedin, Lord Warrington, Lord Blanesburgh and Lord Tomlin concurred in the speech of Lord Buckmaster.
35 To that weight of authority may be added the observations of Barwick CJ in McDonald v McDonald (533).
36 More recently, in Kuwait Airways Corporation v Iraqi Airways Co (No 2) [2001] 1 WLR 429 [24] Lord Slynn of Hadley observed:
In the first place there is well established authority that where a final decision has been made by a court a challenge to the decision on the basis that it has been obtained by fraud must be made by a fresh action alleging and proving the fraud.
37 See also observations by Lord Diplock in the Privy Council in de Lasala v de Lasala [1980] AC 546, 561.
38 Locally, I mention the observations by the plurality (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ) in DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 [36] - [37] addressing the jurisdiction of the Court of Chancery to enjoin judgments obtained by fraud:
The exercise of this jurisdiction involved the institution of a separate proceedings.
39 Then, in Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 [15], Gummow ACJ, Hayne, Heydon, Crennan & Kiefel JJ have recently observed as regards principles of finality in litigation:
[15] That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel.
40 Also see Kirby J at [98], and I will also mention R v Stanley [2014] QCA 116 at [39] - [41].
41 Last in this line of authority is a decision within this jurisdiction by Master Newnes, as he then was, in Ridout v O'Brien [2004] WASC 137 [39] applying the same line of authority in these terms:
It is clearly established that a party who claims that an adverse judgment was obtained by the fraud of the other party can bring an action to set aside that judgment. The appropriate procedure is to bring new action: Jonesco v Beard [1930] AC 298; McDonald v McDonald (supra). In such an action, the fraud complained of is put in issue and that fraud only: McHarg v Woods Radio [1948] VLR 496.
Setting aside of default judgments
42 Order 13 of the RSC deals with judgments entered in default of appearance. Order 13 r 10 provides 'the Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order'.
43 Reviewing the history of these proceedings, it looks to be that the second and third defendants have not pursued an application by RSC O 13 r 10 to set aside the judgment obtained against them on 28 May 2013. Generally speaking such an application may be brought on a basis that a default judgment was irregular or, alternatively, albeit the judgment was regularly entered, a default judgment nevertheless ought to be set aside upon the basis of the demonstration by the defendants against whom judgment has been obtained of an arguable defence on the merits of an explanation supplied for the delay in entering an appearance: see Parker v Transfield Pty Ltd[2000] WASCA 382; Hall v Hall[2007] WASC 198.
44 I detect no application under RSC O 13 r 10 by the Culletons here. Instead, their application was directed to the Court of Appeal, on 6 February 2014, for an extension of time to appeal against the orders made by Registrar Whitbread. That application was refused by Master Sanderson on 24 February 2014. In that context, the learned Master appears to have rendered brief observations about the demonstrable lack of merit in the appeal case.
45 Rodney and Ioanna Culleton then sought leave from the Court of Appeal to appeal the refusal decision of Master Sanderson. That application came, in the end, to nothing. The Court of Appeal dismissed the action in August 2014, on the basis of non-compliance with orders by the Court of Appeal in July 2014.
46 A decision of the Master in Investec Experien Pty Ltd (Formerly known as Experien Pty Ltd) v Robert Keith Will and Charlene Marella Caspersz as trustee for the Will Family Trust[2010] WASC 320 may have been influential towards directing efforts of the Culletons to seek leave to obtain an extension of time to appeal against the orders of Registrar Whitbread of 28 May 2013. But notwithstanding the grant of the necessary leave pursuant to RSC O 62A r 4(1), the 28 May 2013 judgment in character was clearly a default judgment, obtained by reason of there being no memorandum of appearance document filed by Rodney and Ioanna Culleton. Order 62A requires plaintiffs to obtain the leave of the Court and to undertake a number of procedural measures (see O 62A r 2 , r 3, and r 4) before a judgment in default of appearance can be entered. On that basis, it might be thought in a pragmatic sense that the scope for an irregularly entered judgment in such a regime would be greatly reduced. But the grant of leave would not explore the possibility of an underlying arguable defence. Here it is clear that there has never been any substantive evaluation by a trial, or even by a summary judgment, of the merits of the claim of the plaintiff against the defendants, but on which it holds nevertheless a fully efficacious judgment of a Supreme Court.
47 I note, in this context, observations in Carr v Finance Corporation of Australia Ltd [No 1][1981] HCA 20; (1981) 147 CLR 246, 254 - 256, particularly at 256 where Mason J (as he then was) approved earlier observations by Barwick CJ (dissenting) in Hall v Nominal Defendant(1966) 117 CLR 423, 429. Sir Anthony Mason observed, concerning the Chief Justice’s observations in Hall:
The Court should preserve the generality of its discretion so as to protect its capacity to see that justice is done in a wide variety of cases.
48 Those observations would seem applicable in respect of RSC O 13 r 10 and its counterpart O 22 r 10, notwithstanding the obtaining of a grant of leave under RSC O 62A r 4 to enter a default judgment in a mortgage action.
49 However, here, I am not addressing an interlocutory application by Rodney and Ioanna Culleton made pursuant to RSC O 13 r 10. The present application for a 'Declaration' to have the 28 May 2013 judgment declared 'void ab initio' on a basis of alleged fraud, is something of a different character altogether, as I assess it.
Conclusion
50 On the basis of the cases which I have now discussed, it is simply not open for the second and third defendants, after the entry of judgment against them in May 2013, to file in September 2014 an interlocutory 'summons' in the same action, and then to proceed at large upon arguments attacking the validity of the judgment - raising the most serious of contentions as to fraud.
51 On the basis of the line of established case authority discussed, the application under the Culletons' chamber summons of 10 September 2014 presents as inherently misconceived and, therefore, as an abuse of the process of the Court. On that basis, and on the submissions of the respondent to the same end, I dismissed the application on 27 November 2014. Orders issued in those terms. The question of costs was reserved.
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