Riggall v Muirhead [1911] HCA 59; (1911) 13 CLR 436 (25 October 1911)

HIGH COURT OF AUSTRALIA

Riggall Plaintiff; and Muirhead and Others Defendants.

H C of A

25 October 1911

Higgins J.

S. R. Lewis, in support.

J. Higgins read the following judgment.

Oct. 25

Higgins J

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 & Co. Ltd. v. Brown[1] an order for foreclosure 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 unnecessary 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 scrupulous in confining the order to the express terms of the rule.

Order for an account.

Solicitors, for the plaintiff, Blake & Riggall.

[1] 20 A.L.T., 45.

[2] 28 Ch. D., 650.

[3] 31 Ch. D., 595, at p. 596.

[4] 29 Ch. D., 827, at p. 831.