PRACTICE AND PROCEDURE - application for summary judgment by defendant - available only in relation to actions - not proper means of challenging particulars of damages.

PRACTICE AND PROCEDURE - litigant in person - some latitude in construction of pleadings to ensure cases determined on merits- need to maintain rights of other parties.

PRACTICE AND PROCEDURE - role of "McKenzie friend" - no right of audience - litigant in person with limited understanding of legal issues - hearing impairment and difficulty reading documents - leave to address the Court on his behalf.

Burton v The President, & c., of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76

Inglis and anor v Commonwealth Trading Bank of Australia (1972) 20 FLR 30 at 31

General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others [1964] HCA 69; (1964) 112 CLR 125 at 129

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536

State of South Australia v Corporation of the Town of Hindmarsh (per Bollen J, Supreme Court of South Australia, No 2496 of 1992, 10 March 1993, unreported)

Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 407

Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 567 & 612 but cf 555 & 608

Alcock and Others v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310

Barnes v Commonwealth of Australia (1937) 37 SR (NSW) 511

Furniss v Fitchett [1958] NZLR 396

King and Another v Phillips [1953] 1QB 429 per Denning LJ at 441

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] UKPC 1; [1961] AC 388 at 426

Storm v Geeves and Another [1965] Tas SR 252 at 261-262

Campbelltown City Council and Others v Mackay and Another (1989) 15 NSWLR 501

Graham v Voight (1989) 89 ACTR 11

Private Parking Services (Vic) Pty Ltd & Ors v Huggard (1996) ATR [ 81-397]

National Australia Bank Ltd and Others v Bond Brewing Holdings Ltd and Others [1991] VicRp 31; [1991] 1 VR 386

Thompson et al v Reasoner (1890) 24 NE 223 at 225

Sanxter v Foster (1841) Cr & Ph [302] at [303]; [1841] EngR 722; 41 ER 506

Attorney-General v Albany Hotel Company [1896] 2 Ch 696

Air Express Limited v Ansett Transport Industries (Operations) Proprietary Limited (1981) 146 CLR at 249

1. There be summary judgment for the defendant against all plaintiffs.

1. This is an application by the defendant for leave to apply for summary judgment and, if leave is duly granted, for an order that summary judgment be entered in its favour. The application was made only during the course of the trial when it became apparent that the matter could not be completed within the time allocated for the hearing and it appeared likely that no further time could be allocated this year.

2. The power to order summary judgment provided by Order 17 rule 1 of the Supreme Court Rules is dependent upon an application being made by a defendant within 10 days after entering an appearance to an originating application, or at any later time by leave of the Court. If an application has been made after the 10 day period referred to in the rule and leave has not been granted then any judgment entered as a consequence of the court's order would be irregular: Burton v The President, & c., of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76. In the present case Mr Meagher, who appeared for the defendant, sought leave to make the application and it was agreed that if leave were granted I should proceed to determine the application without embarking upon any further hearing. It is clear that leave may be granted even after an application for summary judgment has been made (see Inglis and anor v Commonwealth Trading Bank of Australia (1972) 20 FLR 30 at 31) and it seemed appropriate to proceed in that manner. Accordingly, I heard argument in relation to both issues.

3. The claims made by all eleven plaintiffs relate to allegations that the defendant wrongfully debited an account in the names of the first and second plaintiffs with certain amounts. The defendant held a mortgage over their property at Hackett in the Australian Capital Territory which secured all monies advanced to them. As a result of the wrongful debits the first and second plaintiffs appeared to be in default under the mortgage and the defendant commenced proceedings to obtain possession of the property.

4. Leave to enter judgment for possession of the property was made by the Master on 29 January 1993 in proceedings numbered SC 181 of 1993 and judgment was entered on 15 February 1993. A stay of execution pending the hearing of an appeal was granted by Higgins J on 26 February 1993. On 12 March 1993 Gallop J dismissed the appeal and dissolved the order staying execution of the writ of possession. An application for a further stay of execution pending resolution of an application for leave to appeal from that decision was dismissed by Neaves J on 28 April 1993. It is alleged that the defendant took possession of the property on that day. On 30 June 1993 a Full Court of the Federal Court of Australia granted leave for the first and second plaintiff to appeal from the decision of Gallop J, upheld the appeal and ordered that the judgment be set aside and that the Statement of Claim upon which it had been founded be struck out with liberty to re-plead. The defendant was thereupon required to relinquish its possession of the property. An Amended Statement of Claim (though not in the present form) was subsequently filed and the matter re-litigated. On 12 May 1995 Higgins J gave judgment for the defendants (now the first and second plaintiffs) but on 13 June 1996 a Full Court of the Federal Court upheld an appeal from that decision and remitted the matter for further determination. Higgins J again gave judgment for the defendants on 28 August 1997.

5. The claims of the plaintiffs in the present proceedings are based upon temporary loss of possession of the property and the loss and damage allegedly occasioned thereby. Despite successive amendments to the `Amended Statement of Claim' the causes of action apparently relied upon by the first and second plaintiffs are still not pleaded with due precision. In essence, it is alleged that the defendant was negligent in wrongfully debiting the account "thereby causing the first and second plaintiffs to appear to be in default". It is contended that as a result to this negligence they are entitled to treat the mortgage as having been discharged. They also seek damages.

6. No separate or discrete causes of action have been pleaded on behalf of the third to the eleventh plaintiffs. The Amended Statement of Claim does allege that the third, fourth and fifth plaintiffs, who were apparently children of the first and second plaintiffs, had at all material times resided on the property at Hackett. It also alleges that the sixth, seventh, eighth, ninth, tenth and eleventh plaintiffs had been companies whose registered offices and places of business had been on that property. In these premises it is apparently contended that each is entitled to maintain a claim for damages based upon their wrongful exclusion from the property.

7. The particulars of damage extend beyond expenses associated with the dislocation caused by their exclusion from the property to various matters ranging from the loss of various goods and chattels to nervous shock and damage to credit ratings.

8. Save for occasional interpositions of no present relevance, the first plaintiff represented himself and purported to represent the other plaintiffs. It was obvious that he had little understanding of the need to adequately plead the causes of action upon which he and the other plaintiffs relied or as to the effect of what had been pleaded. Indeed, in granting leave for the most recent amendments, Miles CJ observed that the first plaintiff did not appear to know what the amendments meant. When the matter came on for hearing he also indicated that his sight was such that he would have difficulty reading documents and that he wished to have someone assist him by reading them on his behalf. I indicated that I would give leave for him to be assisted in that manner. He subsequently indicated that his hearing was impaired and that he may be unable to hear all of the oral evidence. Mr Moutafis, who was one of two people whom he described as "expert assistants", agreed to assist him and as time went by it became clear that he was acting as a "McKenzie friend". Indeed, it quickly became apparent that Mr Stergiou was unable to determine what arguments should be advanced and was reduced to repeating, word for word, what Mr Moutafis was telling him he should say. A McKenzie friend normally has no right or audience but only a right to advise and assist: Galladin Pty Ltd v Aimnorth Pty Ltd & Ors [1993] SASC 3914; (1993) 60 SASR 145 per Perry J at 147. However, in McGregor-Dey v South Australian College of Advanced Education and Bell (unreported, Supreme Court of South Australia, S4406, 10 February 1994) Debelle J said, at 1, that the rule that a McKenzie friend may not act as an advocate should not be an inflexible bar to reasonable assistance to a litigant acting on his or her own behalf. Despite the risks inherent in such a course I ultimately concluded that if I did not permit Mr Moutafis to speak on his behalf the first plaintiff may be unable to be effectively heard. Accordingly, I concluded that the interests of justice required me to give leave for Mr Moutafis to address the court on his behalf.

9. In my view some latitude must also be given in the interpretation pleadings filed by unrepresented parties in order to ensure that they have a reasonable opportunity to have their cases determined fairly on the merits. On the other hand, as Doyle CJ observed in Commonwealth Bank of Australia v Marshall; Commonwealth Bank of Australia v Cooper and Anor (unreported, Supreme Court of South Australia, S6028, Full Court, 28 February 1997, at 3) courts must be careful not to be unduly indulgent to unrepresented litigants because banks like other litigants are also entitled to have their rights respected. In particular, any defendant is entitled to know the ambit of the claim brought against it. Accordingly, whilst it may be appropriate to adopt a somewhat more liberal approach to the interpretation of a pleading drafted by an unrepresented plaintiff even if the issues have not been defined with complete clarity, such a pleading cannot be treated as exposing the defendant to claims based upon causes of action and other matters to which the pleading does not allude.

10. At some stage prior to the commencement of the hearing the first plaintiff adverted to the judgment of Higgins J on 28 August 1997 in proceedings No SC 181 of 1992 for the recovery of the possession of the mortgage property by the defendant. His Honour had not been satisfied that the defendant had proved that certain monies debited to the account of the first and second plaintiffs had been due to the bank and hence was not satisfied that as at 23 March 1992 there had been a default in payment justifying the issue of a writ of possession. The first plaintiff indicated that he intended to rely upon these findings in relation to the current proceeding. I explained the need for any alleged estoppel to be pleaded and advised him to obtain legal advice at least as to the form of the statement of claim. This was not done.

11. The proceedings for final relief commenced before me on 23 June 1998. During the course of the proceedings on that day I expressed concern as to the nature of the claim pleaded and referred to a number of apparent areas of difficulty. On the following day a solicitor indicated that he had been instructed to appear on behalf of the plaintiffs late on the previous night because, he said, the first plaintiff realised that there were some technical issues that needed to be addressed. He sought an adjournment so that counsel could be briefed and the pleadings reviewed. The application was opposed but I ultimately acceded to it. The involvement of the solicitor and/or the counsel briefed was short lived and whilst there was a subsequent application to further amend the Amended Statement of Claim it was made by the first plaintiff in person. The proposed amendments included allegations concerning the judgment on 28 August 1997 apparently with the intention of belatedly raising the issue of estoppel. However I refused leave for the amendments then sought.

12. The proceedings resumed on 8 October 1998 and the plaintiffs again sought leave to amend the Amended Statement of Claim. The amendment proposed on this occasion sought to deal with the issue of estoppel in more precise terms than those contained in the previous formulation but was still not in a form which I regarded as acceptable. After some debate between the parties I suggested a somewhat more confined formulation and indicated that subject to that modification I was willing to grant leave for the Amended Statement of Claim to be further amended in accordance with the draft submitted. However, that draft involved other departures from the existing Amended Statement of Claim and after hearing certain submissions on behalf of the defendant the first plaintiff indicated that he wished to revert to that pleading. Consequently, I refrained from granting leave to amend in the manner foreshadowed.

13. The defendant's applications then proceeded in the context of the existing Amended Statement of Claim. For the reasons previously given I think it is appropriate that this pleading be construed somewhat liberally and despite the words of the last paragraph which on their face indicate that the plaintiffs rely solely upon negligence, I am prepared to assume that it also discloses a cause of action for breach of contract. The breach which should be taken to have been so alleged consists of taking possession of the property without any default by the first or second plaintiffs under the mortgage. Mr Meagher, who appeared for the defendant did not contend that it was inappropriate to construe the Amended Statement of Claim in this manner.

14. The application for leave may be dealt with shortly. No date has been allocated for the resumption of the trial and the grant of leave would not give rise to any delay. Nor has it been suggested that any other prejudice might be caused by now permitting the defendant to pursue the application for summary judgment. On the other hand, should the case proceed to finality at trial it would involve calling a great deal of evidence including expert medical evidence as to the psychological harm allegedly caused the first to the fifth plaintiffs and the loss of profits allegedly suffered by the sixth to the eleventh plaintiffs. The considerable expense thereby incurred would be wasted if the claims were subsequently held to have been untenable. The arguments advanced on behalf of the defendant are all capable of being resolved by reference to the nature of the causes of action pleaded in the Amended Statement of Claim. In the circumstances, I think it is appropriate to grant leave for the application for summary judgment to be made even at this late stage of the proceedings.

15. The test to be applied in determining an application of this kind is very stringent. In General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others [1964] HCA 69; (1964) 112 CLR 125 at 129 Barwick CJ said that if the ground relied upon was the lack of a cause of action that must be clearly demonstrated. His Honour observed that the test had been expressed in various formulations including: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; and "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". It seems clear that if there is a real question to be tried summary judgment should not be granted. In particular, it should not be granted where the relevant pleading is merely ill-expressed: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536. Furthermore, it has been suggested that the burden which rests upon a defendant applying for summary judgment against a plaintiff may be greater than that which rests upon a plaintiff seeking a comparable order against a defendant: State of South Australia v Corporation of the Town of Hindmarsh (per Bollen J, Supreme Court of South Australia, No 2496 of 1992, 10 March 1993, unreported)

16. In pursuing the application Mr Meagher made three submissions.

17. First, he submitted that the defendant was entitled to summary judgment at least in relation to the third to the eleventh plaintiffs inclusive since no cause of action maintainable at the instance of any of those plaintiffs was disclosed on the pleadings.

18. It is not alleged that any of those plaintiffs had any interest in the relevant bank accounts or that they were parties to any agreement with the bank. Similarly, it is not alleged that any of those plaintiffs were parties to the mortgage or had any legal interest in the property so encumbered. Furthermore, the Amended Statement of Claim does not contain any allegation that the bank owed a duty of care to the plaintiffs in question and does not advert to any facts and circumstances from which such a duty may have arisen.

19. It may be true that the property was the home not only of the first and second plaintiffs but of the third, fourth and fifth plaintiffs. It may also be true that the property was a place of business and registered office for the sixth to eleventh plaintiffs inclusive. However, the fact that a person with no interest in a property might be adversely affected by the exercise of a power of sale under a mortgage is not of itself sufficient to found a right of action against the mortgagee whether in contract or in tort.

20. Accordingly, I am satisfied that Mr Meagher is correct in his contention that the claims brought by these plaintiffs against the defendant in the Amended Statement of Claim are not maintainable. There will be an order for summary judgment for the defendant against these plaintiffs.

21. Secondly, Mr Meagher submitted that even if one or more of the plaintiffs could demonstrate a cause or causes of action against the defendant that would not provide any basis for the claim that the first and second plaintiffs were entitled to treat the mortgage as discharged as at 28 April 1992 or for the award of damages in relation to many of the items of loss and damage claimed.

22. The first limb of this submission is obviously well founded. A banker which wrongfully debits a customer's account will be obliged to restore the account to the position which it would have been in but for those debits. If the customer is actually out of pocket then he or she will be entitled to damages equal to the loss caused by the wrongful debit. However, there is no principle of law that would enable the customer to obtain a windfall by treating the mortgage as discharged or that would require the bank to accept a corresponding loss.

23. The second limb of Mr Meagher's submission is also substantially well founded. No circumstances have been pleaded or referred to in the voluminous affidavits filed on behalf of the plaintiffs that would support a claim for loss or damage to various goods and chattels or for loss of income and/or profits said to have been suffered by the companies. It also seems unlikely that either the first or second plaintiff could sustain a claim for nervous shock.

24. At common law liability for the causation of nervous shock was first recognised in the context of accident cases and still arises mainly in cases of that nature. Even in that context it seems that nervous shock arising from personally witnessing the accident may sound in damages but that hearing distressing news of it will not: see, for example, Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 407; Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 567 & 612 but cf 555 & 608; and Alcock and Others v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310. The extension of liability under section 24 of the Law Reform (Miscellaneous Provisions) Act 1955 relates only to cases in which another person has been killed, injured or put in peril. It seems that an action for nervous shock may be available in some circumstances where there was no physical danger: see, for example, Barnes v Commonwealth of Australia (1937) 37 SR (NSW) 511; Furniss v Fitchett [1958] NZLR 396. However, it is at least necessary for a plaintiff to establish that the defendant created a foreseeable risk that someone might be injured by shock: King and Another v Phillips [1953] 1QB 429 per Denning LJ at 441; Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] UKPC 1; [1961] AC 388 at 426; Storm v Geeves and Another [1965] Tas SR 252 at 261-262; and Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 572-573.

25. I do not accept that making wrongful debits or even instituting and maintaining the proceedings to recover possession of the property gave rise to a foreseeable risk that the first and/or second plaintiff might be injured by nervous shock.

26. The position is less clear in relation to other heads of damage. The law has not recognised any general cause of action for the negligent causation of mental anguish or stress not amounting to or causing physical or psychiatric injury. However, a right to recover damages for the causation of distress and injury to feelings has been upheld in a number of contexts: see, for example Campbelltown City Council and Others v Mackay and Another (1989) 15 NSWLR 501; Graham v Voight (1989) 89 ACTR 11; and Private Parking Services (Vic) Pty Ltd & Ors v Huggard (1996) ATR [ 81-397]. In the last mentioned case damages were also awarded for injury to the plaintiff's reputation. Of course, if the matter had been fully litigated the first and second plaintiffs might not have succeeded in relation to these claims. Any damages awarded might have been limited to the cost of moving out of the premises, obtaining alternative accommodation and subsequently moving back in together with any other expenses caused by their exclusion. However, I do not accept that such claims could be dismissed as ones which could not possibly succeed.

27. In any event, Order 17 rule 1 authorises applications for summary judgment only in relation to actions, though sub-rule (3) provides that if the court directs that the action proceed to trial a judge may give directions. The rule does not authorise the entry of summary judgment in relation to particulars of damage said to have been suffered as a result of the breach of contract or tort to which the action relates. Of course, inappropriate particulars of damage may be struck out but that is not an issue which arises in the present application.

28. Mr Meagher's third submission was more far reaching in its implications. He submitted, in effect, that all of the claims of the first and second plaintiffs were unsustainable because it was common ground that possession of the property had been obtained by the defendant pursuant to an order of the Court.

29. As a general rule a party who suffers loss or damage by an order which is subsequently set aside will be entitled to restitution but not damages. In National Australia Bank Ltd and Others v Bond Brewing Holdings Ltd and Others [1991] VicRp 31; [1991] 1 VR 386 Brooking J referred, at 593-597, to the long standing practices in England, the United States of America and Australia of requiring the party who has obtained the benefit of such an order to restore what had been taken. His Honour added, at 597:

_"This survey shows that the principle on which the courts have for centuries acted is that when an erroneous judgment or order is overturned, whether by means of appeal or by any other procedure, the court will achieve a just result by requiring anything that has been taken from him by the other party by virtue of the wrong decision to be restored. Interest is for this purpose treated as the fruit of money and he who has had the use of the money will not be heard to say that there were no fruits. The principle is, as it was in the reign of the first Elizabeth (_Eyre v Woodfine Cro. Eliz. 278; [1653] EngR 1241; 78 E.R. 533), one of restitution or restoration. The court is seeking to restore to one party what it has wrongfully taken from him and given to the other. It does not seek to restore the successful party to his former position by awarding damages to compensate him for loss flowing from the erroneous judgement or order."

30. The underlying principle was reflected in the following passage from the judgment of Mitchell CJ of the Supreme Court of Indiana in Thompson et al v Reasoner (1890) 24 NE 223 at 225 which Brooking J quoted at 598-599:

"While a judgment defendant is entitled to compel the fullest restitution of all benefits which the plaintiff received on account of the enforcement of an erroneous judgment, it is not strictly accurate to say that the latter is liable to an action for damages for enforcing a judgment pending an appeal, where there has been no stay of proceedings. There would be no inducement for an appellant in any case to secure a supersedeas to stay proceedings, if it were held that the plaintiff assumed the liability of all damages which might result from the enforcement of the judgment; nor would anyone venture to enforce a judgment while the right of appeal existed, or while an appeal was pending. Where payment of a subsisting judgment is enforced by taking out regular process, the plaintiff is acting under authority of law, and cannot be held responsible for damages as a wrong-doer, because it turns out in the end that the court committed an error in rendering the judgment. The plaintiff takes the chance of losing the title to any property he may have purchased at an execution sale, and of being compelled to restore to the last farthing any benefit he may have received under the judgment; but he cannot be compelled to make good all the damage which the defendant, who neglected to stay proceedings pending the appeal, may have sustained by the erroneous action of the court."

31. Brooking J also cited the decision of the Supreme Court of Oklahoma in State Nat. Bank v Ladd (1916) 162 PR 684 in which there had been judgment for a sum of money and foreclosure on a mortgage over two mules, a cow, a wagon and a cotton crop. It was held that a judgment though erroneous was nevertheless an act of the court and both constituted a sufficient justification for all acts done in its enforcement and "afforded complete protection to the defendant who acted in reliance upon the adjudication". Consequently, the person whose property had been sold was held to be entitled to recover, by way of restitution, not the value of the property but only the proceeds of sale.

32. His Honour also referred, at 601, to the long standing practice of seeking undertakings as to damages as a condition of granting interlocutory relief and said that it was implicit in judgments going back to Sanxter v Foster (1841) Cr & Ph [302] at [303]; [1841] EngR 722; 41 ER 506 that without such an undertaking there would be no remedy.

33. Murphy J cited, at 589, the view expressed in London's edition of Pollock on Torts, 15 ed that `(g)enerally speaking it is not an actionable wrong to institute civil proceedings without reasonable and probable cause, even if malice is proved' but expressed concern that courts may be seen as inadequate to effect justice if a defendant whose property had been ruined by an order could not obtain compensation for the loss. Nonetheless, His Honour felt constrained by the authorities to hold that damages were not available.

34. Kaye J also referred, at 576, to the practice which he said had been followed for nearly 150 years of requiring a plaintiff seeking an interim or interlocutory injunction to give an undertaking to damages and said that it had been based upon the view that a defendant would otherwise be without remedy.

35. This comment is well supported by authority. For example, in Attorney-General v Albany Hotel Company [1896] 2 Ch 696 North J said at 699 that if it should subsequently appear that an order had been improvidently made it was difficult to see how in the absence of an undertaking the defendant could recover from the plaintiff the damages which had been sustained by reason of the order. More recently, in Air Express Limited v Ansett Transport Industries (Operations) Proprietary Limited (1981) 146 CLR at 249 Gibbs J said at 311-312 that the object of requiring a plaintiff seeking an interlocutory injunction to give an undertaking as to damages was to attempt to ensure that the defendant would receive compensation for any loss suffered by reason of the grant of the injunction if it ultimately appeared that the plaintiff had not been entitled to obtain it. His Honour explained the need for this measure, at 313, in terms of the principle that ". . . except in certain cases analogous to malicious prosecution, a defendant is not entitled to recover damages for loss resulting from legal proceedings brought against him - the only liability of the unsuccessful plaintiff is to pay costs."

36. It seems clear from these authorities that when an order is subsequently set aside whether on appeal or otherwise a party whose interests were adversely affected by it may be entitled to restitution but will not be entitled to damages save in certain circumstances which Gibbs J described in Air Express Limited v Ansett Transport Industries (Operations) Proprietary Limited [1981] HCA 75; (1981) 146 CLR 249 at 313 as being "analogous to malicious prosecution". Murphy J observed in National Australia Bank Ltd and Others v Bond Brewing Holdings Ltd and Others at 590 that, apart from cases of that kind, the researches of counsel had found no relevant precedent in which, in the absence of an undertaking, an award of compensation had been made to compensate a defendant for loss occasioned his property by the making of an erroneous order subsequently set aside on appeal.

37. There may be many circumstances in which the court's inability to provide due compensation for the loss or damages sustained as a result of an order subsequently set aside will leave a party with a justified feeling of grievance. Indeed, in National Australia Bank Ltd and Others v Bond Brewing Holdings Ltd and Others, Kaye JA expressed his belief, at 573, that the moral basis for making an order for damages in that case was compelling. He said that the irresistible conclusion was that the order in question had been procured by stealth and by leading the primary judge into error, whether deliberately or by negligence. Consequently justice and good conscience demanded that the appellants be compensated for the harm suffered by them for the making of the order in error and from being deprived of their assets and the control of their business affairs. Nonetheless, his Honour agreed with the other members of the court in finding that there was no basis for an award of damages.

38. In the present case I am satisfied that none of the causes of action pleaded gives rise to an arguable claim. The case may be distinguishable from National Australia Bank Ltd and Others v Bond Brewing Holdings Ltd and Others in that the property of the first and second plaintiffs was not taken by a receiver or manager appointed by the Court but apparently by the defendant. Nonetheless, in doing so the defendant was acting under the authority of a Court order. In the circumstances I am bound to follow the long line of authority to the effect that the only remedy available to persons in the position of the first and second plaintiff is restitution. The rule so established reflects the principle that an act carried out under the authority of a court order cannot be regarded as wrongful. It is further supported by the public policy that, in the absence of a stay of proceedings, those who have obtained orders in their favour should be free to act on them without fear of potentially ruinous claims for damages should they subsequently be set aside. Hence, as the authorities demonstrate, a person who has acted in reliance on such an order cannot be held liable for damages even if the Court made the order only because it was negligently misled by the defendant and/or the person has taken possession of property in circumstances that would otherwise have constituted a breach of contract.

39. In the present case it is common ground that the property has been returned to the plaintiffs. Of course, restitution may require more than mere return of the property in question. A party may be required to account for interest earned prior to the return of the capital sum as a consequence of an order being set aside. Similarly, a party may be required to account for any profits derived from the relevant property. However, no residual claim of this kind is evident on the face of the existing pleadings.

40. In all the circumstances I am obliged to find that the Amended Statement of Claim does not disclose a viable cause of action for a declaration to the effect that the first and/or second plaintiffs are entitled to treat the mortgage as having been discharged or for damages. Accordingly, there will also be summary judgment for the defendant against the first and second plaintiffs.

41. However, I will hear the first and second plaintiffs as to any application which they may wish to make to further amend the pleadings in order to raise any outstanding issues of restitution. I will also hear the parties as to costs.

I certify that this page and the fifteen (15) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Counsel for the Plaintiff: Mr S Stergiou, self represented litigant with Mr S Moutafis assisting

Dates of hearing: 23, 24 June 1998; 8, 9 October 1998