,?:QgTRALIA & NEW ZEALAND BANKING GROUP LTD v PASTRIKOS
Supreme Court of the Northern Territory of Australia Martin J.
13 l	?I	December 1990

PRACTICE AND PROCEDURE - Application for surr ary judgment - Commenced by originating motion - Must be commenced by writ
- Order under Rule 4.07 (continuance as writ of proceeding by originating motion) not convert to proceeding corr@enced by writ - Supreme Court Rules O. 4, 10, 22, 43, 45; Real
Property Acts. 137

Counsel for the plaintiff Solicitors for the plaintiff

Counsel for the defendant Solicitors for the defendant

A Wyvill Ward Keller

PA	Smith
Dunstan's

mar900036
Local distribution

mar900036
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 310 of 1990

BETWEEN:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Plaintiff

AND:
MARIA PASTRIKOS
Defendant

CORAM:	MARTTN J.

REASONS FOR JUDGMENT
(Delivered 21 December 1990)

By originating motion filed on 28 Mav 1990 the plaintiff, claiming as a registered mortgagee seeking to exercise its power of sale, sought an order that the defendant deliver up possession of the subject property to it, by which I understand from what I was told by counsel on the hearing of this application that it sought recovery of the land (Real Property Acts. 137).	An originating motion is required where an application is authorised to be made in the Court under an Act.	I note that an affidavit in support of the application, was sworn on 6 October 1989 and filed on the same day as the motion.	It is not material to these particular proceedings, but such an affidavit can only be

used in proceedings by leave (r. 43.07).	Order 45 relating to originating motions provides the normal procedure whereby judgment may be obtained for the relief sought, that is, on application to the Court by summons.	Such a summons was taken out on the same day as the Originating Motion was filed, that is, 28 May 1990, which seemed to me to be a little premature since by that time the motion could not have been served and the opportunity for the defendant to have filed an appearance not have arisen (seer. 45.04).	F appearance was entered on behalf of the defendant on 7 June and the proceedings on the summons came before the Court on
21 June.	No objection was made to what appears to have been
an irregularity in respect of the issue of the summons and certain orders were made by consent.	There has been no authentication of those orders.	There is no dispute between the parties, however, that on that occasion an order was made under r. 4.07 which provides that where a proceeding in which there is a defendant is coITLmenced by originating motion but ought by or under an Act or Chapter l of the Rules to have been commenced by writ, or might in the opinion of the Court more conveniently continue as if commenced by writ -

the Court may order that the proceeding continue as if it had been commenced by writ and make consequential orders.

2