RAMS MORTGAGE CORPORATION LTD -v- SIDDONS [2004] WASC 254

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 254
Published:	25/11/2004
Case No:	CIV:1989/2004	Heard:	11 NOVEMBER 2004
Coram:	MASTER SANDERSON	Delivered:	11/11/04
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	A
PDF Version

Parties:	RAMS MORTGAGE CORPORATION LTD BRETT SIDDONS
Catchwords:	Practice and procedure Application of O 59 r 9 to application under O 62 Whether obligation to confer
Legislation:	Rules of the Supreme Court 1971, O 59 r 9, O 62A r 4
Case References:	BuyQuick.com Ltd v Foxgold Pty Ltd [2000] WASC 216 Capesail Nominees Pty Ltd (In Liq) & Anor v Ride & Ors [2002] WASC 29 Chua & Anor v Wang & Ors [2002] WASC 74 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RAMS MORTGAGE CORPORATION LTD -v- SIDDONS [2004] WASC 254 CORAM : MASTER SANDERSON HEARD : 11 NOVEMBER 2004 DELIVERED : 11 NOVEMBER 2004 PUBLISHED : 25 NOVEMBER 2004 FILE NO/S : CIV 1989 of 2004 BETWEEN : RAMS MORTGAGE CORPORATION LTD

Plaintiff

AND

BRETT SIDDONS

Defendant

Catchwords:

Practice and procedure - Application of O 59 r 9 to application under O 62 - Whether obligation to confer

Legislation:

Rules of the Supreme Court 1971, O 59 r 9, O 62A r 4

Result:

Appeal allowed

(Page 2)

Category: A

Representation:

Counsel:

Plaintiff : Mr D H Solomon

Defendant : In person

Solicitors:

Plaintiff : Solomon Brothers

Defendant : In person

Case(s) referred to in judgment(s):

BuyQuick.com Ltd v Foxgold Pty Ltd [2000] WASC 216
Capesail Nominees Pty Ltd (In Liq) & Anor v Ride & Ors [2002] WASC 29
Chua & Anor v Wang & Ors [2002] WASC 74

Case(s) also cited:

Nil

(Page 3)

1 MASTER SANDERSON: This is an appeal brought against a decision of Registrar Eldred delivered 21 September 2004. To understand the nature of the appeal and the point at issue, it is necessary to say something about the background facts.

2 The defendant is the registered proprietor of 29 Colonial Court, Bouvard. By mortgage dated 14 March 2000 the defendant mortgaged the land as security for a loan of $90,000, advanced to him by the plaintiff. The terms of the loan agreement required the defendant to repay the loan, together with interest, on the outstanding balance by consecutive weekly instalments. The defendant defaulted in payment of the instalments, principal and interest. The plaintiff commenced these proceedings on 30 July 2004. By way of relief, the plaintiff sought to obtain possession of the security property. The writ with statement of claim endorsed was served on the defendant on 7 August 2004. The defendant failed to file an appearance to the writ within the required time. The plaintiff then made an application for leave to enter judgment in default of appearance pursuant to O 62A r 4 of the Rules of the Supreme Court 1971.

3 The plaintiff's application for leave to enter judgment pursuant…

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: [2004] WASC 254
Decision Date: 25 NOVEMBER 2004

CaseChat Overview and Summary

The case of RAMS Mortgage Corporation Ltd versus Siddons involved a dispute regarding the application of Order 59 Rule 9 to an application under Order 62 of the Supreme Court of New South Wales. RAMS Mortgage Corporation sought to enforce a mortgage over property owned by the respondent, Siddons. Siddons contested the enforcement, arguing that there were procedural irregularities in the application process.

The primary legal issue before the court was whether the obligation to confer, as outlined in Order 59 Rule 9, applied to an application under Order 62. Order 59 Rule 9 generally requires parties to a proceeding to confer in an attempt to resolve their dispute before proceeding further. The court needed to determine if this obligation extended to applications made under Order 62, which pertains to the enforcement of mortgages.

The court held that the obligation to confer did indeed apply to applications under Order 62. The reasoning was that the purpose of Order 59 Rule 9, which is to encourage settlement and avoid unnecessary litigation, is consistent with the objectives of Order 62. By requiring parties to attempt to resolve their dispute before enforcing a mortgage, the court aimed to promote amicable resolutions and prevent unnecessary court intervention. The court found that the obligation to confer was applicable, thus ruling in favour of Siddons. Consequently, the appeal was allowed, and the lower court's decision was overturned.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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