RAMS Mortgage Corporation Ltd v Siddons

[2004] WASC 254

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
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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 to O 62A r 4 was heard by Registrar Eldred on 21 September 2004. The learned Registrar dismissed the plaintiff's application for failure to comply with O 59 r 9. It was the plaintiff's position on the hearing before the learned Registrar that O 59 r 9 did not apply to applications for leave to enter judgment under O 62. The learned Registrar concluded that as the application under O 62A was made by chamber summons, which was to be served on the defendant, notwithstanding the defendant's failure to enter an appearance, the application came within the terms of O 59 r 9. The learned Registrar further expressed the view that the application of O 59 r 9 to a chamber summons seeking leave to enter judgment under O 62A was not only consistent with the terms of the rule itself, but the principles underlying it as expressed in such decisions as BuyQuick.com Ltd v Foxgold Pty Ltd [2000] WASC 216, Capesail Nominees Pty Ltd (In Liq) & Anor v Ride & Ors [2002] WASC 29 and Chua & Anor v Wang & Anor [2002] WASC 74.

4 In my view, O 59 r 9 has no application to a chamber summons issued pursuant to O 62A. The purpose of O 59 r 9 is to ensure that parties to litigation have conferred to try and resolve issues giving rise to an application before the application is made. When a defendant has failed to appear they have demonstrated that they do not intend to defend the claim. In one sense, that is the ultimate refusal to confer with respect to the issue of proceedings. Moreover, the requirement is to confer in

(Page 4)

relation to "matters giving rise to the application": O 59 r 9(1)(a). In the absence of an appearance, all that the parties could be required to confer about are the defendant's failure to appear and the requirements of O 62A r 4 which prohibits a plaintiff from obtaining judgment in default of appearance except with leave. There is no purpose to be served in such conferral. There may be some purpose served in a conferral about how the property is to be handed over, or whether some arrangements can be made with the lender for repayment of the loan. But that is not what is required by the clear terms of O 59 r 9.

5 It must also be borne in mind of what purpose is served by O 62A r 4. It is intended to give further notice of impending judgment to a defendant in a mortgage action who has not appeared to a writ. This indulgence is not extended to any other defendant who has failed to enter an appearance. To impose upon a plaintiff a further obligation to confer with a party who has shown no intention to participate in the proceedings is a pointless exercise. It serves no useful purpose.

6 In my view, the appeal should be allowed. Orders should be made for possession of the property.