Prime Capital Securities Pty Ltd v Hunter - [2024] WASC 159

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PRIME CAPITAL SECURITIES PTY LTD -v- HUNTER [2024] WASC 159
CORAM:   MASTER RUSSELL
HEARD:   2 MAY 2024
DELIVERED          :   3 MAY 2024
FILE NO/S:   CIV 1657 of 2023
BETWEEN:   PRIME CAPITAL SECURITIES PTY LTD
Plaintiff
AND
COLIN ALEXANDER HUNTER
First Defendant
MARGARET JANE HUNTER
Second Defendant

Catchwords:

Practice and procedure - Application to set aside judgment - Judgment entered by consent where defendant self-represented - O 42 r 8 of the Rules of the Supreme Court 1971 (WA) - Whether entry of judgment by consent where self-represented defendants did not attend before a judge to give consent a procedural irregularity which may be regularised under O 2 r 1 of the Rules of the Supreme Court 1971 (WA)

Legislation:

Rules of the Supreme Court 1971 (WA) O 2 r 1, O 42 r 8, O 43, r 16

Result:

Application granted

Judgment entered by consent by self-represented defendants set aside

Category: B

Representation:

Counsel:

Plaintiff	:	Mr C Breheny
First Defendant	:	Mr D J Pratt
Second Defendant	:	Mr D J Pratt

Solicitors:

Plaintiff	:	Kennedy Vinciullo
First Defendant	:	Kean Legal Barristers & Solicitors
Second Defendant	:	Kean Legal Barristers & Solicitors

Cases referred to in decision:

Deveigne & Anor v Askar [2007] NSWCA 45
Doyle v The Commonwealth (1985) 156 CLR 510
East Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 37
Melglow Pty Ltd v Ballygrowman Pty Ltd [2016] WASC 383
Newcrest Mining Ltd v Thornton (2012) 248 CLR 555
Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257
R v S [2009] WASCA 11
Re Hoffman [2004] WASCA 238
Sonnet Holdings Pty Ltd v Dunn [2012] WADC 11
Strachan v The Gleaner Co Ltd [2005] UKPC 33; [2005] 1 WLR 3204
Tuff Trade Pty Ltd v Canningvale Properties (WA) (in liq) [2018] WASC 362

MASTER RUSSELL:

Introduction

The defendants, Colin Alexander Hunter and Margaret Jane Hunter, are the registered proprietors of 15B George Street, North Beach in Western Australia being Lot 2 on Strata Plan 28093 within Certificate of Title Volume 2030 Folio 169 (Property).
On 21 June 2023, the plaintiff, Prime Capital Securities Pty Ltd, issued these proceedings against the defendants seeking to enforce the terms of a guarantee and indemnity and a mortgage granted over the Property as security for a loan advanced to Nev.Trs Pty Ltd (Nev.Trs) on or about 28 January 2022.
A memorandum of appearance was filed for each of the defendants on 13 July 2023 through the court's electronic case management system (ECMS). Though the memorandum filed in each case says that the party is represented by a solicitor, they were not represented in the proceeding until 25 January 2024.
A statement of claim was filed on 9 August 2023. The plaintiff filed an application for summary judgment for possession of the Property on 14 August 2023. The summary judgment application was…

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] WASC 159
Decision Date: 3 MAY 2024

CaseChat Overview and Summary

The case of Prime Capital Securities Pty Ltd v Hunter concerned an application to set aside a judgment entered by consent. The defendant in the proceeding was self-represented and had not attended before a judge to give consent, despite the requirement under RSC O 42 r 8. The court was asked to determine whether the procedural irregularity could be regularised under RSC O 2 r 1 of the Rules of the Supreme Court 1971 (WA).

The central legal issue was whether the entry of judgment by consent in a case where the self-represented defendant did not attend before a judge to give consent constituted a procedural irregularity that could be regularised under RSC O 2 r 1. The court considered whether the failure to comply with RSC O 42 r 8 was an irregularity that could be rectified by the court without injustice, in light of the remedial power under RSC O 2.

The court found that the entry of judgment by consent without the self-represented defendant attending before a judge was indeed a procedural irregularity. However, the court held that this irregularity could be regularised under RSC O 2 r 1, as the failure to comply with the rule did not nullify the proceedings. The court exercised its remedial power to allow the amendment and to make the order it thought fit, considering it just to do so without causing injustice. The court's decision was influenced by the historical context and role of RSC O 2, as well as the intention to rectify procedural errors without nullifying the proceedings.

The court set aside the judgment entered by consent and ordered that the application be heard on its merits.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

RSC O 42 r 8 provides:8. Entering judgment by consent where defendant has not appeared or is self‑representedWhere the defendant has not appeared or has appeared in person, no such order shall be made unless the defendant attends before a judge and gives his consent in person, or unless his written consent is attested by a solicitor acting on his behalf, except in cases where the defendant is a barrister, or solicitor. The 'no such order' relates back to O 42 r 7. It is an order for entering judgment. Counsel for the defendants commenced by referring to a decision of Banks-Smith J in Melglow Pty Ltd v Ballygrowman Pty Ltd,[5] relating to the exercise of the remedial power under RSC O 2 where orders had been made by consent extending a caveat in an action brought by originating summons under s 138C of the Transfer of Land Act 1893 (WA) where the originating summons had not been validly issued. The proceeding had been begun by a corporation otherwise than by a solicitor contrary to RSC O 4 r 3.[5] Melglow Pty Ltd v Ballygrowman Pty Ltd [2016] WASC 383. Whilst MelglowPty Ltd v Ballygrowman Pty Ltd addresses different provisions of the RSC than that under consideration in this case, it is instructive. Banks‑Smith J considered the authorities, history and role of RSC O 2 as follows:[6][6] Melglow Pty Ltd v Ballygrowman Pty Ltd [2016] WASC 383 [31] ‑ [33].Order 2 - history and role31.The starting point is to recognise the significance of O 2 of the RSC.32The rule provides (relevantly):Non-compliance with Rules(1)Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.(2)Subject to subrule (3) the Court may, on the ground that there has been such a failure as is mentioned in subrule (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.33.As summarised by the Court of Appeal in The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412 [48]:This order was in the rules when they came into existence in 1971. The order is in the same terms as the English O 2 r 1, which was introduced into the English rules in 1964. According to Lord Denning in Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 735 - 736:This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice.Lord Denning said at page 734 that the new rule was enacted so as to 'get over the decision in Re Pritchard (Deceased) [1963] Ch 502 [1963] Ch 502. In Metroinvest Ansalt v Commercial Union Cumming-Bruce LJ said at 518:It is quite clear from Harkness v Bell's Asbestos and Engineering Ltd … that the mischief at which the revision of the rules was aimed was to remove the distinction between irregular purported proceedings which were ab initio a nullity from irregular proceedings which were not void ab initio. The content of Order 2 is designed to enable the court, whenever faced with anything done or left undone in proceedings which constitutes a failure to comply with the requirements of the rules, to exercise the powers conferred by the rules without having first to decide whether the jurisdiction conferred by the rules applies at all.See also the discussion by Spender J in Re Zagoridis; Ex parte Q'Plas Group Pty Ltd (1990) 27 FCR 108 about the history of the rule.

Ratio Decidendi

Legal Principle Established

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