RT Co Pty Ltd v Minister of State for Interior [1957] HCA 39

High Court of Australia Dixon C.J. RT Co Pty Ltd v Minister of State for Interior [1957] HCA 39

ORDER Judgment of 10th September 1956 set aside as irregular, on condition of the defendants paying the taxed costs of the plaintiff incurred in or incidental to the taxing of costs under the judgment or otherwise in the action after the date of the judgment except the costs of this summons. There will be no order for costs of this application except that there will be a certificate for counsel. There will be a further order that the plaintiff have liberty to amend his statement of claim and that the defendants deliver their defence or defences within seven days of the delivery of the plaintiff's amended statement of claim.

Dixon C.J.delivered the following oral judgment:—

Dixon C.J.

This is an application on the part of the defendants in an action to set aside a judgment entered in default of delivery of a defence as required by the Rules. The judgment is for a large sum of money and is entered as for default of defence under O. 28, r. 2 to a claim for a debt or liquidated demand. The writ was issued by the Minister for the Interior suing on behalf of the Commonwealth in respect of a claim arising out of the continued occupation by the defendants, or one of them, of land which had been compulsorily acquired by the Commonwealth. The claim, however, against the defendants of whom there are four, one natural person and three companies incorporated under the Companies Act of Victoria, was expressed in the alternative. There are really three alternative claims made against the defendants. Firstly for a sum of money, and alternatively for the same sum of money as damages and again alternatively for an account of rents and profits received by the defendants in respect of the possession of the premises and payment of the amount found to be due. But besides alternatives as between claims according to their nature, the claims are made against the defendants in the alternative. The claim for the debt or liquidated demand was expressed as a claim against each of the defendants in the alternative. But the judgment which was entered in default of pleading is a judgment that the plaintiff do recover against the said defendants the amount in question and costs to be taxed. That is a judgment against the defendants jointly. In my opinion the judgment is irregular. The claim having been against the defendants in the alternative, it was not in my view lawful to enter judgment against them all jointly, a judgment which operates to make them liable jointly and severally for the full amount. Rule 2 of O. 28 says:—"Where—(a) the plaintiff's claim is for a debt or liquidated demand only; and (b) the defendant is bound to deliver a defence and he does not, within the time allowed for that purpose, deliver a defence, the plaintiff may, at the expiration of that time, upon filing an affidavit showing the facts referred to in paragraph (a) and (b) of this subrule, enter final judgment for the amount claimed, with costs."