Ashton v Prentice

[1999] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S80 of 1999

B e t w e e n -

ANDREW CRAIG ASHTON

Applicant

and

MAXWELL WILLIAM PRENTICE

Respondent

Application for a stay

McHUGH ACJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 1999, AT 10.00 AM

Copyright in the High Court of Australia

MR A.J. McQUILLEN:   If your Honour pleases, I appear for the applicant.  (instructed by Duker & Associates)

MR D.P. COWLING:   I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, Mr McQuillen.

MR McQUILLEN:   Your Honour, this is a summons, your Honour, for an application for a stay of the orders of the Full Court of the Federal Court.  Your Honour, there is a summons which I understand – all was done very late because there was an application to Justice Katz in the Federal Court yesterday.  That application was essentially in the same terms as the orders sought in the summons which is now before your Honour, and that application was refused.  His Honour gave reasons.

There is a copy of the transcript of that hearing and his Honour’s reasons.  I can tell your Honour briefly what those reasons were, if your Honour needs to ‑ ‑ ‑

HIS HONOUR:   I have read it.

MR McQUILLEN:   Your Honour, there is an affidavit of the applicant, Mr Ashton.

HIS HONOUR:   I have read that as well.

MR McQUILLEN:   Thank you, your Honour.  I think there is also an outline of submissions which was before - - -

HIS HONOUR:   I have read that.

MR McQUILLEN:   Thank you, your Honour.  Your Honour is obviously familiar with the jurisdiction that is necessary to be enlivened so far as the basis for any stay of a decision of the Full Court of the Federal Court or, for that matter, the enlivening of the jurisdiction of this Court to grant a stay, namely, that there must be shown exceptional circumstances.

HIS HONOUR:   What do you say is exceptional about this case?

MR McQUILLEN:   What I can only point to, your Honour, is the fact that the premises which are owned by Mr Ashton, currently, and which are the subject of a transfer which has to be executed today in accordance with the Full Court’s orders, unless it is stayed, is that those premises are occupied by a number of people – two elderly people.  One is in her nineties.  There is, in addition, the bankrupt, Mr Jury, his daughter, his son and his wife and the two elderly people that I mentioned, the Nassifs.

Your Honour, Mr Ashton, whilst owning the property, has let the property with successive options under a lease.

HIS HONOUR:   Yes, I have read the judgment of Justice Hill and I have read the judgment of the Full Court.

MR McQUILLEN:   Thank you, your Honour.  The fact that those people, in particular, at least three of them, have been living there for 31 years, the property has some special - - -

HIS HONOUR:   It has none to your client.

MR McQUILLEN:   Has none, other than he has a lease to those people, which is the subject of - - -

HIS HONOUR:   He made an admission before Justice Katz that there is nothing special about the property.

MR McQUILLEN:   It is an investment property.

HIS HONOUR:   It is an investment property, yes.

MR McQUILLEN:   Your Honour, the only other matter that I can refer to is the fact that there is a special leave application filed in the matter of Dovade which raises somewhat similar issues to the grounds of appeal that are raised in this special leave application although they are different grounds altogether.  There are different factual circumstances.  Dovade was a decision of the New South Wales Court of Appeal and that is a decision of that court in which there was a relationship of the judge, who heard the matter at first instance, and a particular bank which was not disclosed, raises issues which are somewhat similar to the issues raised in this special leave application.  That is, there are questions of significant importance, in my respectful submission, that would attract the consideration of the Court.

HIS HONOUR:   The difficulty I have concerning this case is this, that the facts of this case do not seem to me to make it a very suitable vehicle for the grant of special leave.  The judge disclosed his share holding, and unless the court is to lay down an absolute rule that even an indirect interest is sufficient to disqualify the judge, then your case must fail.  Westpac was not even a party to this particular proceeding. 

But you have other problems, it seems to me, both now and on a special leave application.  That is that on the objective facts of the case, on your client’s own admissions in the affidavits and the transcript, the prospects of your client succeeding eventually seem to me to be very low, Mr McQuillen.

MR McQUILLEN:   I follow what your Honour says.

HIS HONOUR:   As Justice Dawson said in Myer Emporium, one matter that is relevant on a stay application is that there is a real risk that it will not be possible for the successful appellant to be restored substantially to his former position if the judgment against him is reversed and in this particular case, notwithstanding what Justice Brennan said in Sali’s Case about the right of appeal being the relevant subject matter, you at least have that much going for you.

I want to hear what your opponent has to say about the matter.  Having read the material, quite frankly, if I thought this case could not be heard before August or September, I would not grant you a stay.  But the matter can be heard on 18 June and, subject to what your client is prepared to undertake, and subject to hearing submissions from Mr Cowling, I may be prepared to give you a stay until that date, but it would be on fairly strict conditions.  But I would like to hear what Mr Cowling has to say.

Mr Cowling, what I have in mind is that the matter can be heard on 18 June.  A matter was taken out of the list yesterday by Justice Kirby and there is a slot there.  I would grant a stay until then, until 18 June, on the undertaking of the applicant to carry out all directions of the Deputy Registrar which she considers necessary to get the matter on for hearing.  I would give you leave or your client leave to apply on 24 hours notice to discharge a stay order if it appeared that the applicant has failed to carry out any of those directions, and it would also be granted on the undertaking that any moneys outstanding on the mortgage are paid on the due date, all obligations are paid on the due date.  In those circumstances, what would you say about - - -

MR COWLING:   Your Honour, I would need to get very quick instructions on it, but it is tempting.  Your Honour, could I raise one other potential condition, so that I could get full instructions?

HIS HONOUR:   Yes.

MR COWLING:   When the original stay was granted by Justice Burchett, there was an order made for an amount to be held by way of security for compensation to the trustee for being kept out of the property.  That was

order 1(d) made on 3 March.  One of the things I would like to raise with my client, your Honour, is a continuation of that regime.

HIS HONOUR:   What order is it?

MR COWLING:   It is 1(d), your Honour.

HIS HONOUR:   Yes.  Well, I appreciate that, but we are speaking about three weeks.

MR COWLING:   I thought it was worthwhile asking, your Honour.  Your Honour, would it be possible to stand the matter down for five minutes whilst I quickly ring my client?

HIS HONOUR:   Yes.  Well, I will have to speak to Mr McQuillen about it.  But having heard what - - -

MR COWLING:   Thank you, your Honour.

HIS HONOUR:   Mr McQuillen, would your client be prepared to give those undertakings?

MR McQUILLEN:   I understand he would.  I just want to check and confirm what your Honour has said and that it is made perfectly clear.  But I understand I would have no difficulty in getting those instructions, I anticipate.

HIS HONOUR:   Yes.  Your client needs to understand that there is no mucking around; that every step has to be taken; the matter has to come on for hearing.  If it is not on for hearing on 18 June then, unless it is the respondent’s fault, it would seem to me that the order would have to be discharged.  This is a holding order as far as I am concerned.  The only real point I think you have going for you is that it is so close to the hearing date that the status quo should be preserved although, ordinarily, the Court will not order a stay merely to preserve the status quo.

MR McQUILLEN:   Yes, I understand that, your Honour.

HIS HONOUR:   But having regard to the time period involved, then it seems to me it would be a proper exercise of discretion to grant you the short stay, not least of all because of the hardship to third parties which I think it is appropriate to take into account on stay applications, just as it is on an application for an interlocutory injunction.

MR McQUILLEN:   Yes.  I think that is all I can say, your Honour.

HIS HONOUR:   Would you get some instructions?

MR McQUILLEN:   I will, your Honour.

HIS HONOUR:   Just so there will be no misunderstanding about the matter, I would grant a stay of the order of the Full Court.  You seek orders staying Justice Burchett’s order.  I assume it is discharged, is it?

MR McQUILLEN:   No, your Honour.  What happened was that all the Full Court interfered with was some orders of Justice Hill because the Full Court reframed some ‑ ‑ ‑

HIS HONOUR:    Yes, I know they reframed ‑ ‑ ‑

MR McQUILLEN:   So therefore the orders of Justice Hill would still stand - those particular orders referred to would still stand and they were the subject of the stay of his Honour Mr Justice Burchett.

HIS HONOUR:    Yes.  I will hear Mr Cowling in a moment about the form of the orders but what I would propose is to stay the orders until 18 June.  That stay would be granted on the undertaking of the applicant to carry out all directions of the Deputy Registrar which she considers necessary to enable the hearing of the special leave application to be heard on 18 June.  It will also be granted on the undertaking that the applicant comply with all obligations cast upon him pursuant to mortgage Q4629278 to Robert Stuart Anderson and Wayne Scott Hibbard, and I would be giving the respondent leave to apply on 24 hours notice to discharge the stay if it appears that the applicant has failed to carry out any such direction.

MR McQUILLEN:   Your Honour, if I could just have a few moments and then ‑ ‑ ‑

HIS HONOUR:   Should I adjourn?

MR McQUILLEN:   Would your Honour mind?

HIS HONOUR:   I will adjourn for – how long will you want?

MR McQUILLEN:   I think it can be done in five minutes, your Honour.

HIS HONOUR:   Just before I rise, Mr Cowling, is there anything about the form of the orders sought in the summons to which you would have any problem?  It is orders 1 and 2.

MR COWLING:   No, your Honour.

HIS HONOUR:   Very well.  I will adjourn.  It is quarter past 10.  Would 25 past 10 be sufficient, Mr McQuillen?

MR McQUILLEN:   Thank you, your Honour.

HIS HONOUR:   I will adjourn.

AT 10.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.26 AM:

HIS HONOUR:   Yes, Mr McQuillen.

MR McQUILLEN:   I have Mr Ashton in Court.  I have those instructions to make those undertakings and they are made, your Honour.  They have been explained fully to him and his obligations that your Honour has specified.

HIS HONOUR:   Have you anything to say about the matter, Mr Cowling?

MR COWLING:   No, your Honour, those arrangements are acceptable to my client.

HIS HONOUR:   Very well.

I will grant a stay by making the orders sought in paragraphs 1 and 2 of the applicant’s summons.

I make those orders staying the judgment of the Full Court on the undertaking of the applicant that he will carry out all directions of the Deputy Registrar which she considers necessary to enable the hearing of the special leave application to be heard on 18 June.

I also grant that stay on the undertaking of the applicant to comply with all obligations cast upon him pursuant to mortgage Q469278 to Robert Stuart Anderson and Wayne Scott Hibbard.

I give the respondent leave to apply on 24 hours notice to discharge the orders I make today if it appears that the applicant has failed to carry out any direction of the Deputy Registrar.

Do you give those undertakings on behalf of your client, Mr McQuillen?

MR McQUILLEN:   I do, your Honour.

HIS HONOUR:   The undertaken being given, I make those orders accordingly.

What about costs, Mr Cowling?

MR COWLING:   Your Honour, I would be content for costs to be costs in the cause of the special leave application.

HIS HONOUR:   Thank you.  The costs of the application will be costs in the special leave application.

Anything further?

MR McQUILLEN:   No, your Honour.

MR COWLING:   Nothing further, your Honour.

HIS HONOUR:   Adjourn the Court.

AT 10.28 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 18 JUNE 1999