Perpetual Corporate Trust Ltd v Cassar - [2024] VSC 302

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
MORTGAGE RECOVERY LIST

S ECI 2023 03872

BETWEEN:

PERPETUAL CORPORATE TRUST LIMITED (ACN 000 341 533)	Plaintiff
v
MICHAEL ANTHONY CASSAR	Defendant

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2024
DATE OF RULING:	6 June 2024
CASE MAY BE CITED AS:	Perpetual Corporate Trust Ltd v Cassar
MEDIUM NEUTRAL CITATION:	[2024] VSC 302

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PRACTICE AND PROCEDURE – Application to set aside judgment in default of appearance – Personal service attempted and plaintiff became aware the defendant no longer resided at address – Terms of mortgage agreement relied upon to effect service by ordinary post, relying on mortgage as an agreement under r 6.14 of the Supreme Court (General Civil Procedure) Rules2015 – Terms of mortgage did not amount to an agreement for service of originating process for the purposes of r 6.14 – Judgment in default of appearance obtained irregularly – Judgment obtained irregularly set aside as of right – Plaintiff to pay defendant’s costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms E N Madalin	TG Legal + Technology
For the Defendant	Mr B Devanny	Kingsford Lawyers

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Is there an Agreement for Service of an Originating Process otherwise than in the Manner Provided in r 6.02 of the Rules?................................................................................................. 2

Should the Default Judgment be Set Aside Given the Originating Process was not Validly Served?.......................................................................................................................................................... 9

Conclusion......................................................................................................................................... 14

HER HONOUR:

The defendant applies by summons pursuant to r 21.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) to set aside the judgment, for debt and recovery of land, entered against him on 15 November 2023 in default of appearance.[1] In the alternative, the defendant seeks a stay of execution of the judgment for a period of three months from the date of the order pursuant to r 66.16 of the Rules or the inherent jurisdiction of the Court. The plaintiff opposes the application.[2]
[1]The defendant relies on the affidavit of Michael Cassar sworn on 16 February 2024, and the affidavit of Jasmina Hristovski sworn 28 March 2024.
[2]The plaintiff relies on the affidavits of Natasha Evans sworn 24 October 2023 and 15 November 2023, and the affidavits of Tara De Melo affirmed on 20 March 2024 and 8 April 2024.

Background

This proceeding concerns a default by the defendant on a loan made to him by the plaintiff under a loan agreement entered on 8 April 2020, which was secured by a mortgage over a real property asset owned by the defendant. The mortgage, also dated 8 April 2020, incorporated the memorandum of common provisions registered with the Land Titles Office and numbered AA3217 (the ‘MCP’).

The plaintiff issued a notice of default to the defendant on or about 12 October 2022. The defendant was aware of the notice of default. The plaintiff alleges in the proceeding that the defendant ultimately failed to comply with the terms of the…

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: [2024] VSC 302
Decision Date: 6 June 2024

CaseChat Overview and Summary

The case of Perpetual Corporate Trust Ltd v Cassar involved a dispute regarding the validity of a judgment in default of appearance. The defendant, Mr. Cassar, was a mortgagor who had defaulted on his mortgage obligations, leading to proceedings by the plaintiff, Perpetual Corporate Trust Ltd. The dispute reached the Supreme Court of New South Wales, where the plaintiff sought to enforce the judgment against Mr. Cassar. Mr. Cassar, however, applied to set aside the judgment, claiming it was obtained irregularly.

The central legal issue in this case was whether the judgment obtained in default of appearance could be set aside due to irregularities in the service of the originating process. Specifically, the court had to determine whether the terms of the mortgage agreement allowed for service of the originating process by ordinary post, as opposed to personal service, under rule 6.14 of the Supreme Court (General Civil Procedure) Rules 2015. The court also needed to assess if Mr. Cassar's attempt at personal service, which failed, and the subsequent awareness by the plaintiff of his change of address, influenced the validity of the judgment.

The Supreme Court concluded that the terms of the mortgage did not constitute an agreement for service of the originating process by ordinary post as required by rule 6.14. The court held that personal service was necessary, and given the plaintiff's knowledge of the defendant's change of address, the judgment was obtained irregularly. Consequently, the court set aside the judgment in default of appearance as of right and ordered the plaintiff to pay the defendant's costs. This decision underscores the importance of adhering to procedural requirements in civil litigation to ensure judgments are validly obtained and enforced.

Orders