Riggall v Muirhead

[1911] HCA 59

13 CLR 436

MUIRHEAD AND OTHERS Practice-Action for account of mortgage and foreclosure-Summary order for an

account and foreclosure-Rules of the High Court 1911 (Consolidated), Part 1., MELBOURNE,

When a writ has been indorsed with a claim for an account of the money Oct. 23, 25.

owing on a mortgage and for a foreclosure, the plaintiff is not entitled on an application under the Rules of the High Court 1911, Part I., Order XIV., to

Dalgety &Co. Ltd. v. Brown, 20 A.L.T., 45, commented on. MOTION.

An action was brought in the High Court by William Riggall, a resident of Victoria, against Margaret Sarah Muirhead, and the Official Receiver of the Court of Insolvency of South Australia, both residents of South Australia, Thomas William Lloyd, the Union Bank of Australia Ltd., and Sir Matthew Henry Davies, residents of the State of Victoria, and Charles Henry Goode, a resident of the State of South Australia.

The writ in the action was indorsed as follows:- "The plaintiff's claim is that an account be taken of what is due to the plaintiff for principal, interest and costs under and by virtue of a mortgage dated 16th August 1907 made between the defendants M. S. Muirhead and C. M. Muirhead of the one part and the plaintiff William Riggall of the other part.

"And for an order for the payment to the plaintiff of the amount found to be due to him on the taking of such account and in default of payment foreclosure"

13 CLR 437

No appearance was entered by or on behalf of any of the defendants.

A motion was now made on behalf of the plaintiff for an order for accounts and a foreclosure.

S. R. Lewis, in support.

Our. adv. vult.

HIGGINS J. read the following judgment. This is an ex parte application for accounts and a foreclosure order under Order XIV. I do not feel justified in making an order for foreclosure. In the case of Dalgety &amp;C5. Ltd. v. Brown 1 an order for fore- closure was made under the corresponding Victorian rule. The learned Judge (Hodges J.) seems to have relied mainly on the case of Smith v. Davies 2; but his attention was not directed to the report of the case on appeal in the authorized reports 3, in which it is distinctly stated that "the point that the order was made under Order XV." (the corresponding Order of the English rules) << was not raised." In Blake v. Harvey 4, Cotton L.J. expressed a doubt as to the authority to make an Order for foreclosure under the rules of Order XV., but it became un- necessary to decide the question.

I can only say that, whatever may be the proper practice under the English or the Victorian rules, I do not see anything in the rules of the High Court which would justify me in making any order but an order for accounts. The only power given is a power to make an order to take "the proper accounts"; and the fact that the application is made ex parte (under r. 2) should make a Judge more serupulous in contining the order to the express terms of the rule.

Order for an account. Solicitors, for the plaintiff, Blake &amp;Riggall.

120 A.L.T., 45. 228 Ch. D., 650. 331 Ch. D., 595, at p. 596. 429 Ch. D., 827, at p. 831.