Australasian Temperance & General Mutual Life Assurance Society Ltd v Holland [1915] HCA 45; (1915) 20 CLR 145 (18 June 1915)

HIGH COURT OF AUSTRALIA

The Australasian Temperance and General Mutual Life Assurance Society Limited Plaintiffs; and Holland Defendant.

H C of A

18 June 1915

Isaacs J.

Sproule (Lewers with him), for the plaintiffs,

Isaacs J.

In this case an order for foreclosure of an interest under a will was made on 20th July 1914. The order nisi was not served personally because the defendant has not appeared in the action. But it was not stuck up in the Registrar's office as required by Order LV., r. 6, although it was filed, because no request to the Registrar was made for that purpose. The Registrar made an appointment at the instance of the plaintiffs to take accounts. This appointment was not served upon or brought to the knowledge of the defendant, or stuck up in the Registrar's office. Proceedings have gone on under the order nisi without any service upon the defendant in any way. The amount has been ascertained and costs taxed ex parte, and these moneys have not been paid. I am now asked on notice of motion which was, however, stuck up in the Registrar's office, to make the foreclosure absolute.

The defendant does not appear on this motion, notwithstanding the fact that the present notice of motion was stuck up. I regard it as an elementary requirement of justice and as essential—in the absence of express provision or authority to the contrary—that the ascertainment of the sum due should be in the presence of both parties or after proper notice, actual or substituted, to be present. As that was not done, it is, apart from all else, a sufficient ground to refuse this application. I certainly think, however, that the order nisi itself should also have been stuck up, as the only means of service available.

The application is refused.

Motion dismissed.

Solicitors, for the plaintiffs, Darvall & Horsfall.