Hardy v Commonwealth Bank of Australia [1999] VSC 41

"If the plaintiff claims a debt only and you pay that debt, namely, $232,805.32 and $3,060.00 for legal costs to the plaintiff or his solicitor within the proper time for appearance, this proceeding will come to an end. Notwithstanding the payments you may have the costs taxed by the court".

6. In the statement of claim filed with the writ in the other proceeding the bank claimed against the Hardys payment of the sum of $281,223.84 pursuant to the bill facility account and the sum of $75,674.46 pursuant to the overdraft facility together with interest. The writ in the other proceeding was served upon Judith Hardy and came to the attention of Gerald Hardy on about 21 July 1998 whilst he was overseas. On 24 July 1998 Mr Hardy attended the offices of the solicitors for the bank and met a solicitor for the bank, Mr C.R. Thomson. Mr Hardy tendered to Mr Thomson four bank cheques totalling the sum of $235,865.32 being the total amount endorsed on the front of the writ as the amount of the debt. Mr Hardy informed Mr Thomson that he wished to return overseas and wanted the matter disposed of and requested a receipt. Mr Hardy was accompanied by Mr Findlay, a solicitor. Mr Hardy left the offices of the solicitors for the bank whilst Mr Findlay waited for a receipt. In an affidavit in this proceeding Mr Thomson deposed that upon checking that the aggregate amount of the bank cheques totalled the amount on the writ he provided a receipt to Mr Findlay who left thereafter. Mr Thomson has deposed, further, that a short time later he became aware that the total amount of the bank cheques tendered by Mr Hardy did not equal the total amount claimed in the statement of claim delivered with the writ in the other proceeding. Mr Thomson attempted to contact Mr Findlay immediately and left a message at his offices that the bank would not deposit the bank cheques tendered by Mr Hardy.

9. On the same day Mr Thomson forwarded a facsimile to the Hardys' solicitors in the following terms:

"**COMMONWEALTH BANK OF AUSTRALIA v

GA HARDY, JL HARDY & STARLIGHT INVESTMENTS PTY LTD

**

Supreme Court Proceeding No. 2051 of 1998 (Commercial List F.4911)

I refer to the above matter and to your and Mr Hardy's unexpected visit to my offices this morning when you delivered bank cheques payable to my client in the aggregate sum of $235.865.32. I record that you gave no warning of your intention to visit my offices in order to pay the Bank.

I accepted the cheques on behalf of my client assuming that the sum paid was all the money owing to my client by the Defendants as set out in the Statement of Claim and subject to referring the matter to my client for final instructions.

It has now been brought to my attention that there is an error in the Writ in that the principal sum is stated as "$232,805.32" whereas it should have read "$356,898.30" being the amount claimed in the Statement of Claim attached to the Writ. The net difference between the amount paid to the Bank

and the amount still owed to the Bank is thus $124,092.98.

Presumably Mr Hardy read the Statement of Claim but may not have noticed the discrepancy between the aggregate principal amount claimed in the Writ as opposed to the correct amount as stated in the Statement of Claim.

I telephoned your offices earlier today and drew the above matters to

Mr John Honours attention.

As presently advised the Bank seeks payment of the total amount

claimed in the Statement of Claim $356,898.30 together with its

costs in the sum of $3,060.00 ie, a total sum of $359,958.30.

The Bank will not bank the cheques delivered to it at this stage and does not accept that the proceedings have been settled. I request that you telephone the writer as a matter of urgency in order to attempt to resolve what has obviously been an oversight on behalf of both parties. As presently advised I am instructed to proceed with these proceedings and will attend

Court at the directions hearing on 31 July 1998. I seek your consent

to adjourn the directions hearing to 7 August 1998 in order that

we may attempt to resolve the matter. Alternatively the matter will

be adjourned as Mr Hardy is I understand once again overseas.

Please would you inform Mr Hardy and Mrs Hardy and

your clients Starlight Investments of these developments.

I was obviously unaware of the error in the Writ when I accepted the cheques and handed you the receipt dated 24 July 1998."

13. Subsequently, the bank cheques tendered by Mr Hardy were returned to him by the bank. Thereafter in the other proceeding the Hardys delivered a defence alleging that payment had been made by Mr Hardy for the amount endorsed upon the writ and that by virtue of the payment the proceeding was concluded. There were additional matters alleged by the bank in the other proceeding with respect to a third defendant, Starlight Investments Pty Ltd concerning a Certificate of Title held as security for the moneys said to be owed by the Hardys to the bank.

"(1) Where in a proceeding commenced by writ the plaintiff claims a debt only, the writ shall be indorsed with a statement of the amount of the debt and the amount claimed for costs and a statement that the proceeding will come to an end if, within the time limited for filing an appearance, the defendant pays the amounts so claimed to the plaintiff or his solicitor.

(2) Where a writ is indorsed in accordance with paragraph (1), and the defendant pays the amounts claimed within the time limited for filing an appearance, then, except as provided by paragraph (3), the proceeding shall come to an end.

(3) The defendant may, notwithstanding the payment, have the costs taxed, and, if more than one-sixth shall be disallowed, the plaintiff's solicitor shall pay the costs of taxation."

22. Mr B.J. Shaw, QC appeared for the plaintiffs and submitted that it is the plain intention of Rule 5.09 that once a payment is made in accordance with the rule the action will come to an end and "that's that". In support of the submission Mr Shaw relied upon the fact that the amount claimed on the writ had been tendered and was accepted and that there was no protest. He submitted that the circumstances of tender and acceptance constituted payment at law (see George v. Clooney (1979) 28 ALR 57, 62, 63).

25. Mr Shaw submitted, further, that Rule 5.09 is derived from Rule 3.5 of the Rules in their previous form and form and which provided:

"5. Indorsement of notice as to stay of proceedings.- Wherever the plaintiff's claim is for a debt or liquidated demand only, the indorsement, besides stating the nature of the claim, shall state the amount claimed for debt, or in respect of such demand, and for costs respectively, and shall further state that upon payment thereof within four days after service, or in case of a writ not for service within the jurisdiction within the time allowed for appearance, further proceedings will be stayed. Such statement may be in the Form in Appendix A, Part III, section III. The defendant may, notwithstanding such payment, have the costs taxed, and if more than one-sixth shall be disallowed the plaintiff's solicitor shall pay the costs of taxation."

29. Mr Shaw submitted that the former Rule 3.5 had the effect that where the relevant payment was made the proceeding was stayed. He referred me to Lambert v. Mainland Market Deliveries (1977) 1 WLR 825 and relied upon the observations of the English Court of Appeal in support of the proposition that the previous provision contained in Rule 3.5 did not bring the relevant action to an end whereas the current rule contained in Rule 5.09 reflects a deliberate intention, namely, that once a payment is made in accordance with the rule the action will come to an end.

32. Mr M. Sifris appeared for the bank and submitted that if there is an error made in the amount paid pursuant to Rule 5.09 the rule does not apply. He submitted that the correct interpretation of the rule is that it deals with the payment of a debt being the actual debt that is owing.

35. Mr Sifris submitted, further, that Rule 5.09 is set out in the Rules of the Court in the section concerned with contents, filing and duration of originating process. He submitted that the rule was a procedural rule and not intended to affect substantive rights. Furthermore, Mr Sifris emphasised that the bank in the other proceeding was not claiming a debt only but additional relief and, therefore, pursuant to Rule 5.09 the proceeding did not and could not come to an end in the manner submitted on behalf of the Hardys.

38. Mr Sifris submitted, also, that the purpose of the rule is to protect the right of a defendant to minimise costs where the amount claimed is paid within the time for appearance. He asserted that the purpose of the rule is to facilitate the containment of costs to which a defendant may be subject where the amount claimed is paid.

41. A further submission made by Mr Sifris was that this proceeding is an abuse of process and urged me to exercise the inherent jurisdiction of the court including that pursuant to Rule 23.01 to dismiss the proceeding as constituting an abuse of process.

44. I was not informed of any application in the other proceeding to rectify the apparent mistake on the front of the relevant writ. It appears that the bank has not taken any step at all in that regard in the other proceeding. Mr Sifris relied upon Rule 1.14 which provides that in exercising any power under the Rules the court shall endeavour to ensure all matters are disposed of effectively and promptly. He urged me, insofar as it may be necessary to pay heed to the "slip rule" provided in Rule 2.01 of the Rules and allow an amendment to the writ in the other proceeding. Mr Shaw in reply opposed the latter course firstly on the basis that no application was before me but secondly, and more particularly, because he submitted that the power of the court with respect to the other proceeding was gone because it was at an end pursuant to Rule 5.09. Finally, Mr Shaw urged that the Rules exist for a purpose and that once a change was made to the Rules that change should be given effect. The submissions and arguments put forward on behalf of the parties went no further than as described.

47. The heading to Order 5 reads: "Content, Filing and Duration of Originating Process". The rules under Order 5 are concerned with matters such as form, appearance, endorsement of claim and other formal matters. Rule 5.03 provides that a writ must be endorsed with a statement to the effect that if the defendant does not file an appearance within the time stated the plaintiff may obtain judgment without further notice. Rule 8.04 requires an appearance to be filed 10 days after service (within Victoria). When Rule 5.09 is read in conjunction with Rules 5.03 and 8.04 it is clear that the rule was intended to obviate the need for an appearance if within the time for filing an appearance the defendant pays the amount of the debt endorsed on the writ and the amount claimed for costs.

50. There is agreement between the parties before me that the amount of the debt endorsed on the front of the writ was tendered and the amount set out in the statement of claim was not. Despite Rule 5.09(1) requiring the writ to be endorsed with "a statement of the amount of the debt and the amount claimed for costs and a statement that the proceeding will come to an end" if the defendant pays the amounts claimed, there is no provision in the rule as to how the endorsement is to be effected. Rule 5.09 refers to an endorsement of the debt and costs claimed. This requirement is to be contrasted with Rule 5.04 where a writ must contain an "endorsement of claim". Rule 5.04(2) provides that an endorsement of claim shall be either a statement of claim or "a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding". The endorsement required by Rule 5.09(1) is, therefore, quite different. It does not require endorsement of the nature and cause of the claim and the relief and remedy sought. Rather, Rule 5.09(1) requires quite different matters. In my view, therefore, Rule 5.09(1) requires endorsement on the writ of the amount of the debt and costs claimed and a description of the consequences if those amounts are paid. For all intents and purposes, the bank has met the requirements of Rule 5.09(1) and the Hardy's were entitled to act as they did with respect to the payment of the amounts endorsed in accordance with Rule 5.09(1) save that the amount of the "debt" was wrongly stated in the endorsement.

53. The bank did not adopt the method of a generally endorsed writ. In the usual way, the writ contained an endorsement of claim by way of a statement of claim. The bank submits that the amount stipulated in the statement of claim, being the higher amount, is the correct amount. The issue arises, therefore, as to whether the statement of claim takes precedence over the writ and, if so, as a consequence, does the amount in the statement of claim prevail over the amount stated on the writ. Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584 is authority for the principle that causes of action on which a plaintiff relies are to be ascertained exclusively by reference to the statement of claim without regard to the endorsement on the writ. Owen J, with whom Kitto and Menzies, JJ. agreed, Barwick, C.J. and McTiernan J dissenting adopted the observations in Odgers on Pleading and Practice, 19th Ed. (1966) at 171 and 179. Owen J. held that the position was correctly stated in Odgers (at 179): "That a statement of claim supersedes the writ; hence if some special form of relief be claimed on the writ, and not in the statement of claim, it will be taken that so much of the claim is abandoned". However, the question is begged, can the situation operate differently, that is, can an amount specified in the statement of claim, as distinct from a cause of action, supersede an amount specified on the writ? I think not. The principle stated in Renowden v. McMullin must be confined to endorsements of claim be it on the writ or in a statement of claim as contemplated by Rule 5.04. Here an entirely different endorsement is contemplated and allowed by virtue of Rule 5.09(1).

56. The current Rules of Court came into operation on 1 January 1987 and replaced the Rules of the Supreme Court of Victoria Relating to Civil Proceedings 1985. The Rules of Court were originally implemented in 1884 following the enactment of the Judicature Act 1883. A useful history of the Rules is set out in the judgment of Gillard, J in Wojcic v. IND (No. 2) (1968) VR 533, 536-538; also, the judgment of Smith, J in Dep. Fed. Comm. of Taxation v. Carpenter [1959] VicRp 68; (1959) VR 470, 472. Under the Judicature Act the practice and procedure of the High Court of Justice in England existing at the time of the enactment of the Judicature Act was adopted and followed in the Supreme Court of Victoria. The Rules of the Supreme Court 1884 made under the Judicature Act followed the English Rules in express terms. The Rules were revised and amended a number of times until their form as set out in the 1985 Rules. The equivalent of Rule 5.09(1) in the 1985 Rules was Rule 3.5 as set out above. The previous Rule 3.05 and current Rule 5.09(1) are couched in similar terms save for the difference that in the current Rule rather than use the words "the proceeding will be stayed" the words "the proceeding will be at an end" are used. It is said in the preface to Civil Procedure Victoria by N.J. Williams QC that the current rules drew upon other common law systems, including England and New South Wales. It is said, also, that some of the changes were not derivative and were entirely new. In order to trade the drafting history to Rule 5.09(1) of the current rules it is useful to consider the English, New South Wales and Canadian approaches to the equivalent rule.

2. (1) Before a writ is issued it must be indorsed -

(a) with a statement of claim or, if the statement of claim is not indorsed on the writ, with a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby;

(b) where the claim made by the plaintiff is for a debt or liquidated demand only, with a statement of the amount claimed in respect of the debt or demand and for costs and also with a statement that further proceedings will be stayed if, within the time limited for appearing, the defendant -

(i) except in either of the cases mentioned in paragraph (2), pays the amount so claimed to the plaintiff, his solicitor or agent;

(ii) in either of the said cases, pays that amount into court."

68. The New South Wales provision follows the English approach and stipulates that upon payment of the relevant amounts "further proceedings shall be stayed". Order 7.4(1) of the New South Wales Rules provides:

"4 (1) Where a plaintiff, by his originating process, claims against a

defendant for a liquidated demand or a liquidated demand together

with a claim for an order for interest under section 94 of the Act, but

(a) may, within the time limited for appearance, pay to the plaintiff

(i) the amount claimed including any interest claimed (other than

(A) if the originating process is filed prior to 1 July 1994 - the

amount fixed by a costs determination in force at the date of filing; or

(B) otherwise - the amount fixed by a costs determination in

notwithstanding the repeal of the costs determination; and

(iii) if the amount fixed by the costs determination does not include

the fee paid on filing the originating process - an amount equal

(3) Upon the filing of a notice of payment under subrule (1), further

91. The approach of the rules in Ontario, Canada is different. They provide:

"14.10(1) Where the plaintiff's claim is for money only, a defendant, on paying within the time prescribed for delivery of a defence or at any time being noted in default, the amount of the plaintiff's claim and the amount claimed for costs, may on motion have the court dismiss the action."

95. In Ontario, therefore, there is no automatic suspension or dismissal of the proceeding if a defendant makes payment in accordance with the rule. It is necessary for a court order to be sought before a proceeding is dismissed. It does not appear that Rule 5.09(1) of the current Victorian Rules does not draw on the Ontario approach.

98. The New South Wales and English provisions are cast in different terms to the current Victorian provision in that they stipulate that where the claim is for a debt or liquidated demand the amount claimed and the amount of costs must be endorsed on the writ together with a statement that further proceedings will be stayed if payment is made in accordance with the Rules. Unlike the current Victorian provision (as set out in Rule 5.09(2)) there is no order in England or New South Wales that upon payment in accordance with the Rule the proceeding "shall come to an end". In considering whether a court has a discretion to lift a stay with respect to a Rule of this type, the Court of Appeal in Lambert v. Mainland Market Deliveries Limited, supra, considered an equivalent provision in the English County Court Rules and held that the court has jurisdiction to set aside a stay in a proper case. Loughton, L.J. at 834 stated:

"When an action is 'stayed', it does not come to an end. No judgment is given. Such an order takes away from the action its inherent ability to go forward. It becomes static, in the sense that it cannot move any further. But any action which is stayed can be started up again by an order of the court. It may well be that generally, once the court has decided that an action shall be stayed, it is very reluctant indeed to allow it to start up again. But that does not mean that it cannot be started up again".

102. Similar views have been expressed by the English Court of Appeal in Rofa Sport Management A.G. & Anor v. D.H.L. International (UK) & Anor (1989) 1 WLR 902; (1989) 2 All E.R. 743; also, Cooper v. Williams (1963) 2 QB 567; (1963) 2 All E.R. 282. In Rofa Sport v. D.H.L. Ltd Neill, L.J. at 911 observed:

"In my judgment, for the sake of clarity and certainty the word 'stay' in an order should not be treated as a possible equivalent of a dismissal or a discontinuance. ... The action cannot proceed or resume its active life without an order of the court, but I do not consider that it can properly be regarded as dead in the same way as an action which has been dismissed or discontinued by order".

106. In Cooper v. Williams & Anor (1963) 2 QB 567 the Court of Appeal considered circumstances where a consent order was made on a settlement for an infant of a deceased parent in a motor accident claim but which had the effect of excluding any claim by the widow of the deceased. The consent order provided: "That all further proceedings in this action be stayed ... ". Lord Denning, M.R. held (at 580): " ... The effect of a stay is that it is not equivalent to a discontinuance or to a judgment for the plaintiff or the defendants. It is a stay which can be and may be removed if proper grounds are shown." Cooper v. Williams was cited with approval in Lambert v. Mainland Market Deliveries Limited. The latter case was most recently cited with approval by the Court of Appeal in Cockerill v. Tambrands Limited [1998] EWCA Civ 882; (1998) 1 WLR 1379, 1385.

109. Upon the introduction of the current Rules the court clearly resolved to change a provision that was modelled upon the English provision. It would appear that so far as Rule 5.09(1) and (2) are concerned, the drafting of those sub-rules did not draw upon experience in other common law systems but may have been entirely new. In so doing, did the substitution of the words "further proceedings will be stayed" with the words "shall come to an end" change the purpose of the Rule so that whereas under the previous Rule a proceeding so stayed could be reinstated by exercise of the discretion of the court in accordance with the authorities but under the new rule could not. When the approach of the courts in Cooper v. Williams, Lambert v. Mainland Market Deliveries Limited and Rofa Sport v. DHL Limited is applied to Rule 5.09 it can be said that even where payment is made under the Rule the proceeding has not been dismissed or discontinued by order. Hence, in accordance with the observations of Neill, LJ in Rofa Sport v. DHL Limited, supra, the proceeding cannot "properly be regarded as dead".

112. When Rule 5.09 comes into play no judgment is given, rather, the proceeding becomes in the words of Lawton, LJ in Lambert v. Mainland Market Limited (p.834) "static, in the sense that it cannot move any further". Just as any action which is "stayed" can be started up again by order of the court in certain circumstances (see Lambert v. Mainland Market Limited, supra) so too where a proceeding has "come to an end" as contemplated in Rule 5.09 it is different from the situation where a proceeding has come to an end as a result of a judgment or order.

115. When the purpose of Rule 5.09 is considered in this light it is apparent that the proceeding is not forever terminated as would be the case if an order or judgment were made arising from the application of the Rules. Such is not the case. For all intents and purposes upon a defendant taking a step in accordance with Rule 5.09 the proceeding is "frozen" if and until the court changes that status.

118. On the basis of s.36 of the Interpretation of Legislation Act 1984 headings to parts, divisions, or sub-divisions of an Act or subordinate instrument form part of the Act or subordinate instrument. The current Rules constitute a subordinate instrument pursuant to s.3 of that Act by virtue of the operation of the Supreme Court (Rules of Procedure) Act 1986. Order 5 of the Rules includes in its heading the words "duration of originating process". Section 36(3) of the Interpretation of Legislation Act provides that no heading to a provision of an Act or subordinate instrument forms part of the Act or instrument that is not a heading to a part, division or sub-division referred to in s.36(1)(a) of the Act. The heading to Rule 5.09 is "Stay on payment of costs". The word "stay" is used as distinct from a term such as "cessation" or "termination". On the basis of s.36(3) of the Interpretation of Legislation Act the heading to Rule 5.09 does not form a part of a Rule. However, s.35(a) of the Act provides that a construction that promotes the purpose or object underlying the Act or subordinate instrument is to be preferred to a construction that would not promote such purpose or object. The Victorian Court of Criminal Appeal in R. v. Boucher, [1995] VicRp 7; (1995) 1 VR 110, at 123 observed:

"Dawson J., in Mills v. Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235 acknowledged that s.35 gave no entitlement to re-write an Act but required the courts to construe an Act in the light of its purposes. His Honour held that the literal rule of construction must, however, give way to the statutory requirement to prefer the construction which promotes the purpose of the Act, even when only one construction appears to be open. No ambiguity or inconsistency is required to be shown before the court has required to purpose; the court must look to the purposes in order to determine whether more than one construction is, in fact, open as to the provision".

122. There is no report or explanatory memoranda published with respect to the Rules from which I can seek assistance in accordance with s.35(b) of the Interpretation of Legislation Act.

125. The purpose of a rule such as 5.09(1) is conveniently described by Blackburn, CJ in Rossco Developments Pty Ltd v. O'Halloran and Anor (1980) 42 FLR 236 at 239: "It's purpose is to confer a protection on the defendant by informing him of his right to minimise his costs by paying the amount demanded within the time limited for appearance". If this intention remained the underlying purpose of Rule 5.09, the purpose was frustrated by the substitution of the word "end" for the word "stay". It may be that the use of the word "end" was intended to facilitate the drafting of the Rules in what is commonly referred to as "plain English". Be that as it may, the intention cannot be ascertained. If the approach of construing the insertion of the word "end" in Rule 5.09 as not giving rise to any change in substance from the previous Rule it is useful to examine the power of the court under the new Rule compared with its predecessor. Under the previous Rule even if a proceeding was stayed in appropriate circumstances it would be open to a party to seek to have the stay set aside (see Cooper v. Williams; Lambert v. Mainland Market Deliveries Limited, Cockerill v. Tambrams Limited, supra). The court has inherent jurisdiction to, among other matters, dismiss a proceeding for want of prosecution, stay or dismiss a proceeding, strike out a defence or other step in a proceeding as an abuse of process, set aside a judgment obtained in default or an irregular judgment and amend a judgment that has been authenticated to correct a mistake or error. The Rules specifically provide in Order 36 for correction of an error in a judgment or order, known as the "slip Rule". Rule 36.07 states that the court may at any time correct "a clerical mistake in a judgment or order or an error arising in a judgment or order from any accidental slip or omission. It applies regardless whether the judgment or order has been authenticated". The present case is different from the circumstances contemplated by the slip rule in that there is no judgment or order that necessitates correction. Mr Sifris drew my attention to Order 2 being the order concerned with non-compliance with the Rules. Rule 2.01(1) provides that failure to comply with the Rules constitutes an irregularity and does not lead to a proceeding or step taken being a nullity. Again, this Rule is of no assistance to the bank as there is not an issue before me as to whether there has been non-compliance with the Rules.

128. In Elliston v. Robinson (1833) 2 Dowl. 241 Bayley, B. held that under the comparable English Rule where a wrong sum is endorsed on the writ a defendant is deprived of the opportunity of paying the debt within the time specified by the Rule. In that case the plaintiff had endorsed on the writ a larger debt than that due as a result of which the defendant was mislead and prevented from settling the action. The court held that it will order the stay of proceedings on payment of the real debt with the costs of the writ only but that the application must be made promptly. In Truslove v. Whitechurch and Ors. (1840) 8 Dowl. 837 the court considered an endorsement on a writ of a summons where the plaintiff specified the amount of the debt claimed but left blank the amount claimed for costs. The court held that such an endorsement was irregular and, further, that the proper course to adopt to take advantage of such an irregularity is to move to set aside the service of the writ of summons. These authorities are of limited assistance save that they demonstrate that the rule was intended to be a rule of practice that enabled a defendant who was prepared to pay the amount of the debt claimed together with costs in order to avoid additional obligations, inconvenience and costs.

131. In the context of determining civil matters, the courts have considered the phrase "comes to an end". In TCN Channel 9 Pty Ltd v. Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130, the New South Wales Court of Appeal considered an agreement for the production of two television programmes should terminate in the event that a related contract "comes to an end". The Court of Appeal held that the words "comes to an end" should be construed in the context of the facts before the court to exclude from their meaning any termination of the agreement of which its substantial cause was the repudiation. Hope, JA observed at 146:

"I shall first deal with the question of construction. On one view the words 'come to an end' are unambiguous and encompass any situation where the contract ceases, no matter what the reason may be for that cessation. However the context shows at least that it was not intended to mean 'comes to an end by effluxion of time' ... This in itself suggests that the words are ambiguous and that their meaning is to be found by reference to the matrix of facts and the contractual context in which they appear".

135. In Naughton v. Glasson and Ors (1975) 49 ALJR 104 the High Court considered the construction of a deed of guarantee provided as collateral security for a mortgage of land. The guarantee provided that on the payment to the mortgagees of $130,000 the liability of the guarantors "shall be at an end". A sum of money was recovered by the mortgagees upon the realisation of property and, as a consequence, one of the guarantors asserted that the proceeds of the realisation constituted payment to the mortgagees for the purposes of the guarantee and that notwithstanding that there was a shortfall under the guarantee, the guarantors were not required to pay any further moneys. Barwick, CJ at 105 held that the intention of the language of the relevant clause in the guarantee was that the mortgagees would be placed in a position relying solely on their security by the payment by the guarantors of $130,000 thus reducing the amount secured by the mortgage. The Chief Justice held, further, that the guarantee was not satisfied by the recovery by sale of the security of part of the amount secured. Consequently, the guarantee was not "at an end".

138. Both TCN Channel 9 and Naughton support the proposition that a phrase such as "comes to an end" and "shall be at an end" does not necessarily aid a construction that the subject matter is ended, finished, finalised and, in the words of Mr Shaw "that's that". The documents to be construed in TCN Channel 9 and Naughton required consideration of the matrix of facts and the context of the agreements; so too in the present matter does the proper construction of the rule call for consideration of a whole variety of matters.

141. The Oxford English Dictionary defines "end" as "a formative element representing the termination"; "to be at an end" means "to be exhausted, to be completed, to terminate". This analysis leads towards a construction that the use of the term "stayed" connotes "stopped" whereas "end" connotes "finished" or "terminated". However, if such a construction is applied to Rule 5.09 it would disregard three important factors: firstly, the history and antecedents of the Rule; secondly, that the Rule is intended to enable a defendant who elects to pay the claimed amount of the debt and costs to be released from further obligation, inconvenience and cost; thirdly, the description of the Rule set out in the heading to Rule 5.09 which indicates the purpose of the rule is to effect a stay.

144. Notwithstanding the construction I have applied to Rule 5.09(1) there is a significant aspect of the relief sought in the other proceeding that precludes the Hardys from obtaining the relief they seek in this proceeding. In the other proceeding the bank claims a debt for a liquidated sum against the Hardys. The bank alleges, also, that the third defendant, Starlight Investments Pty Ltd gave the bank an equitable mortgage over property described in Certificate of Title identifier No. 3/SP/17648 being Unit 3/16 Chapman Street Merimbula, New South Wales ("the property"). As a consequence, the bank claims a charge over the property and seeks a declaration to that effect in the other proceeding together with orders for foreclosure and sale. Rule 5.09(1) clearly stipulates that it applies where the plaintiff claims a debt only. In the other proceeding the bank claims more than a debt. It claims other relief from another party. Accordingly, Rule 5.09(1) cannot apply to the other proceeding.

147. There is the remaining issue as to whether it was appropriate that the Hardys issued the present proceeding against the bank seeking declaratory relief by way of an originating motion to the effect that the other proceeding is at an end or terminated. As already observed, in the other proceeding the Hardys have delivered a defence alleging the relevant facts concerning payment of the amount claimed together with claimed costs as endorsed on the front of the writ in the other proceeding. The Hardys further allege that the amounts were tendered and accepted by the bank. In the circumstances, there is opportunity for the Hardys to pursue their defence in the other proceeding with respect to the tender and acceptance of moneys paid. In view of the fact that there is an extant proceeding dealing with the issues and, further, wherein the very matters before me are pleaded it is inappropriate for the Hardys to seek the declaratory relief they do in the present proceeding. Whilst there is no provision in the Rules that appears to preclude them from taking this course it is in my view undesirable for a litigant to do so in all the circumstances. I do not accept as submitted by Mr Sifris and the present proceeding constitutes an abuse of process. At most, as I have indicated it is inappropriate.

150. It follows from what I have said that the plaintiffs fail in the present proceeding and I will dismiss the originating motion.