Perpetual Trustees Victoria Ltd v Pilcher - [2005] VSC 244

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

---

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

---

---

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:

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.

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.

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.

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.

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.

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.…

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.

Keep reading for free

Create a free CaseChat account to read Perpetual Trustees Victoria Ltd v Pilcher and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] VSC 244
Decision Date: 23 June 2005

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.

Orders