Perpetual Trustees Victoria Ltd v Pilcher

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No.  4356 of 2005

PERPETUAL TRUSTEES VICTORIA LIMITED Plaintiff
V
EDWARD ARTHUR PILCHER AND OLIVE ISOBEL PILCHER Defendants

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JUDGE:

Cummins J

WHERE HELD:

Melbourne

DATE OF HEARING:

22 June 2005

DATE OF JUDGMENT:

23 June 2005

CASE MAY BE CITED AS:

Perpetual Trustees Victoria Limited v Pilcher & Anor

MEDIUM NEUTRAL CITATION:

[2005] VSC 244

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr M. Sifris SC with
Mr H. Austin
Deacons
For the Defendants Mr D. Guidolin Ansell and Associates

HIS HONOUR:

  1. This is an appeal filed 3 June 2005 by the plaintiff, Perpetual Trustees Victoria Limited from an order of Master Evans made on 30 May 2005 in which the Master ordered that a judgment obtained by the plaintiff against the defendants dated 21 March 2005 be set aside, and consequential orders.  The two defendants are Mr Edward Arthur Pilcher and Mrs Olive Isobel Pilcher, both elderly persons. 

  1. The proceeding in this matter was commenced by a writ filed on 28 January 2005 by the plaintiff against the defendants in which the mortgage dated 22 August 2003 of the defendants to the plaintiff in security for a facility, being over their home at Clifton Springs, was pleaded, and default of payments were pleaded, and the claim of the plaintiff against the defendants was for the sum of $182,673.98, together with interest.

  1. A notice of appearance was filed by solicitors of Geelong on behalf of the defendants on 11 February 2005.  However no further curial step was taken on behalf of the defendants.  Thus it was, on 21 March 2005, at the instance of the plaintiff, a default judgment was obtained in the sum I have stated, together with interest and costs, and a further default judgment that the plaintiff recover possession of the relevant land.  A warrant of possession was issued on 24 March 2005.

  1. The circumstances founding that default judgment were deposed by Mr D.J. Lynch, solicitor and practice manager of the firm of legal practitioners for the plaintiff, sworn 21 March 2005.  The affidavit was not misleading in any respect. 

  1. A summons was issued on behalf of the defendants, filed 11 May 2005, for an order that the judgment be set aside, and consequential orders.  Counsel for both the plaintiff and the defendants appeared before Master Evans on 30 May 2005 and, having heard the representatives of the parties the Master, as I have said, on that day ordered that the judgment entered in default of 21 March 2005 be set aside, and made consequential orders.

  1. As to the substance of the plaintiffs' claim, an affidavit of Mr Lynch filed 27 May 2005 sets out the substance of the claim, as does an affidavit of Mr I. Robertson sworn 26 May 2005, he being the National Credit Manager, Prime Finance, of Interstar Wholesale Finance Limited.  The substance of the affidavits is that the deponents maintain that there is no defence to the proceeding.…

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Details
Case
[2005] VSC 244
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Victoria, Perpetual Trustees Victoria Limited initiated proceedings against Edward Arthur Pilcher and Olive Isobel Pilcher seeking a judgment for the sum of $182,673.98 plus interest and costs, along with a default judgment for possession of their property at Clifton Springs. The defendants failed to take any curial steps, leading to a default judgment being entered against them on 21 March 2005. Subsequently, the defendants sought to set aside the judgment, which the Master granted on 30 May 2005, prompting the plaintiff's appeal to the Supreme Court.

The primary legal issues in this case were whether the judgment obtained by the plaintiff was improperly or irregularly obtained, and whether there was a valid defence to the plaintiff's claim. The court considered whether the plaintiff's solicitors acted improperly in seeking the default judgment without informing the defendants' solicitors, and whether there existed any substantive defence to the plaintiff's claim.

The court held that while the plaintiff's solicitors did not act improperly, it was inappropriate for them not to inform the defendants' solicitors before seeking the default judgment. The court found that the judgment was irregularly obtained due to the lack of communication with the defendants' solicitors, given the history of negotiations and the defendants' intention to defend the action. The court did not find it necessary to determine whether there was a substantive defence to the plaintiff's claim, as the irregularly obtained judgment was sufficient to dismiss the appeal. Consequently, the appeal was dismissed, and the order of the Master setting aside the judgment was restored.

As a result of the dismissal of the appeal, the defendants' costs of the appeal were to be paid by the plaintiff. No further consequential orders were sought or made by either party.

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