2 The first declaration sought was that all moneys secured in favour of the defendant by a mortgage dated 4 July 1995 between Brian Fletcher and the defendant had been repaid to the defendant. That mortgage was for $50,000 and Baysilk Holdings was the guarantor. The second declaration sought was that all moneys secured in favour of the defendant pursuant to a debenture also dated 4 July 1995 made between Baysilk Holdings and the defendant had been repaid to the defendant. That debenture secured $100,000 and Brian Fletcher was the guarantor. The third declaration sought was consequential orders that the mortgage and the debenture be discharged.

3 On the day of filing that application, the plaintiffs also filed an application for an interlocutory injunction restraining the defendant from exercising its powers of sale under the mortgage. Affidavits were filed on both sides and that application came on for hearing before Steytler J. In a published judgment, Fletcher & Anor v Ould [2000] WASC 322, on 11 December 2000 the Judge granted the interlocutory injunction restraining the defendant mortgagee from proceeding with the sale subject to the payment into court of an amount of $75,000 by the plaintiffs by the end of January 2001. The money was not paid in and a later application to have the terms of the injunction varied failed. The result was that the injunction lapsed and the defendant is proceeding with the sale of the property. However, because there is a large first mortgage on the property, and the subject mortgage is only a second mortgage, it is unlikely that the defendant will recover its full debt from the sale of the property.

4 I understand that the defendant has lodged caveats over other properties owned by the plaintiffs to secure the same moneys and it is likely that a 21-day notice will be given in the future to remove the caveats and it is further likely that the question of whether the caveats were properly lodged or not will come before the court shortly.

5 The defendant says that this action should now be dismissed with costs because firstly, the application for an interlocutory injunction has now failed. Secondly, the plaintiff applied before Case Management Registrar Powell for directions that the action now proceed by way of pleadings and that the defendant be constituted the plaintiffs and the plaintiffs be constituted the defendant, that a timetable be established for the exchange of pleadings, and that the parties give discovery, etcetera. That application was dismissed by Registrar Powell and there was no appeal from that finding. So, in summary, the defendant says that this action is now spent and should be dismissed with costs to the defendant.

6 The plaintiffs, on the other hand, say that there are factual matters still in dispute, namely, whether any money is owing by the plaintiffs to the defendant and, if so, how much. This matter needs to be resolved and it could be resolved in this action or it could be resolved in the caveat actions which are likely to be brought shortly. I agree with the plaintiff. There are factual disputes existing between the parties as to how much money is owed under the mortgage and the debenture. This dispute needs to be resolved by a court. It is a dispute within small compass and I do not consider that this originating summons action is an inappropriate form of action to decide it. I am firmly of the view that the plaintiffs should remain the plaintiffs.

7 I propose to order the plaintiffs to file points of claim within 14 days. The points of claim is to include a statement of the sums borrowed or acknowledged as owing under the mortgage and the debenture. It should state details of the payments made, setting out the amount of each payment, the manner of payment, the date, by whom paid and to whom paid. I will direct the defendant to file points of defence within 14 days thereafter and for the plaintiff to file points of reply 14 days after that. The parties should give mutual discovery 14 days thereafter. It is not necessary to discover documents already given in the affidavits. The plaintiffs do not need leave to get third party discovery. They can make that application at any time.

8 I consider that the costs of this application should be in the cause. However, I consider that the costs of all previous applications, which include those before Steytler J, and all costs reserved should be awarded to the defendant. The defendant has, I consider, won all of those applications. Those costs should be taxed and paid forthwith. I do not consider that they should be awarded on an indemnity basis.