Riggall v Muirhead

In this matter before the High Court of Australia, William Riggall, the plaintiff, sought an account of moneys due under a mortgage and an order for foreclosure against Margaret Sarah Muirhead, the Official Receiver of the Court of Insolvency of South Australia, Thomas William Lloyd, the Union Bank of Australia Ltd., Sir Matthew Henry Davies, and Charles Henry Goode. The plaintiff's writ was indorsed with a claim for an account of principal, interest, and costs owing under a mortgage dated 16 August 1907, and for an order for payment or, in default, foreclosure. No appearance was entered by any of the defendants.

The legal issue before the Court was whether, on an ex parte application under Part I of the Rules of the High Court 1911, specifically Order XIV, the plaintiff was entitled to an order for foreclosure in addition to an order for an account. The plaintiff had moved the Court for both orders.

Higgins J. considered the application and, while acknowledging that a foreclosure order had been made under similar Victorian rules in *Dalgety & Co. Ltd. v. Brown*, expressed reservations about the authority for such an order. His Honour noted that the Victorian decision appeared to rely on *Smith v. Davies*, but the report of that case on appeal indicated that the point regarding the order being made under Order XV (the English equivalent) was not raised. Citing *Blake v. Harvey*, where doubt was expressed about the authority to make a foreclosure order under Order XV rules, Higgins J. concluded that, irrespective of the practice under English or Victorian rules, the High Court rules did not provide justification for a foreclosure order. The Court's power was limited to ordering the taking of "proper accounts," and the ex parte nature of the application necessitated a more scrupulous adherence to the express terms of the rule. Consequently, the Court made an order for an account only.