Austin & Anor v Royal

[1999] HCATrans 477

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S107 of 1999

B e t w e e n -

KENNETH JAMES AUSTIN and DIANE CHRISTINA AUSTIN

Applicants

and

MICHAEL ROYAL

First Respondent

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

Second Respondent

PETER ALLEN

Third Respondent

AUSTRALIAN PADDING COMPANY PTY LIMITED (In Liquidation) (Receiver and Manager Appointed)

Fourth Respondent

For Mention

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 15 DECEMBER 1999, AT 9.43 AM

Copyright in the High Court of Australia

____________________

MR P.M. WOOD:   May it please the Court, in this matter I appear for the first and third respondents.  (instructed by Henry Davis York)

MR T. HIELD:   I appear for the second respondent.  (instructed by Norton Smith & Co)

MR G.L. PIGNONE:   For the 4th respondent, your Honour.  (instructed by Kemp Strang)

MR K.J. AUSTIN:   I appear for myself and hopefully, if allowed, my wife.

HIS HONOUR:   Just give me a moment while I look at the information as to the progress of this matter.  Am I right in thinking that this is a matter in which nothing has been filed except the application for special leave to appeal?

MR AUSTIN:   That is right, your Honour.

HIS HONOUR:   Mr Austin, you have been informed, I think, back in early February, that under the Rules of Court this matter will be deemed to be abandoned unless the Rules relating to documents that have to be filed have been complied with before then, or unless an extension of time is given before then.

MR AUSTIN:   That was in November, 4 November, your Honour.

HIS HONOUR:   Yes.  Are you aware that on 7 January your application will be deemed to be abandoned unless documents required by the Rules to be filed have been filed before then, or unless you obtain an extension of time for filing them before them.

MR AUSTIN:   I have been made aware of that, your Honour, and I am now aware of it, yes.  The purpose - what I would seek to do is to have that date extended to about 29 February.  There are extenuating circumstances.

HIS HONOUR:   You are making an application to me to extend that time?

MR AUSTIN:   Yes, to the end of February, your Honour.

HIS HONOUR:   Now you tell me why I should do that.

MR AUSTIN:   Well, we - when I say "we", that is myself and my wife, have been engaged in another matter that came up in relationship to this, and that was a matter with CBFC where CBFC made claims against us under a guarantee for a hire purchase agreement.  Now, that matter has just been heard and judgment given on it.  It was a matter that was mentioned by both the hearing judge, the court judge, and the appeal judges as being a claim again the fund.  When I say the "fund", this is an unusual circumstance where a receiver and a bank, a secured creditor, goes into possession of company assets and our own personal assets but instead of finishing up with a deficit, a shortfall, they have finished up with half a million dollar surplus after taking the money for our house.  Now, all we ask for is for them to give us back our house out of that surplus, or give us back the money for the house.

Now, in the proceedings as they have run through, the CBFC gets a mention as a claim against the receiver for a shortfall that they had of $246,000 plus some interest.  It comes to light that CBFC did not ever make a claim against the receiver and did not have a liability - the receiver had no liability to CBFC.  But the judges mentioned this with a fair bit of aplomb and gusto, that this claim was there against the receivership.  Also, that there was a claim from the taxation office against the receiver which had precedent over our claim.  Now, the Tax Department abandoned their claim.  They left us with the sole claimant against the - apart from the unsecured creditors represented by the liquidator.

Now, we say we are subrogated to the fund to the extent of the money from our house.  That is what the whole thing has been about.  Now, we have been reduced to the point, as a result of the ANZ and receivers failing to pay us - give us back the money for the house - and with the CBFC suing us for the $246,000 and finally obtaining a judgment for that amount plus interest plus costs, we have been reduced to a very impecunious state of affairs.  The solicitor acting for us ‑ ‑ ‑

HIS HONOUR:   Mr Austin, I am only really concerned to ensure the orderly progress of this matter where to date there does not even seem to have been an attempt to comply with the Rules.  Now, I am going to ask counsel what they have to say about the matter in a moment, but something has to be done to produce the result that the Rules concerning the progress of these matters are complied with.  What I have in mind doing at the moment, and I will invite your comments on this and I will invite counsels' comments on this, is making an order that you file within a specific time the documents which the Rules say you ought to have filed already, and I can assure you that time will not be as far away as 29 February, and then providing that in the event that you do not file the documents within that time, this application will be dismissed.  Now, is there any reason why I should not do that?

MR AUSTIN:   Only this, your Honour, that having regard to the circumstances leading up to this, Mrs Karageorge has been acting for us as solicitor.  She cannot go any further.  I am very appreciative of what she has done so far, but she says she cannot do any more without a barrister.  We do not have a barrister.  We have just finished off the CBFC determining that claim.  We now have to restart the engine and find a barrister and prepare these documents that are required.  That is why we need the additional time because we are coming from a flat start again.  A lot of the stuff is ready.  But I have to find lawyers that will run it for me.

HIS HONOUR:   All I am asking you is why I should not fix a time within which you have to file these documents and order that if you do not do that, the application is dismissed.

MR AUSTIN:   What I am suggesting your Honour do is that you take that to the end of February, fix that time at the end of February, to give us sufficient time to marshal our resources.  A lot of the work is already done but I have to find the lawyers and then they have to read it all and become familiar with it.  That is the reason why I am going out a little bit, to give myself a safety zone.

HIS HONOUR:   Thank you.  I will see what counsel has to say.  Mr Wood?

MR WOOD:   There are really two matters I would put to your Honour.  In principle, I could not object to your Honour's suggestion, provided that the time limit does not go particularly far into the future.  There is one particular

reason concerning the first respondent for that.  He is still the receiver of the company and there is one impediment to him retiring, and that is this proceeding.

HIS HONOUR:   As at present advised, I have in mind fixing what I would regard as an extremely generous time, that is two months from today's date, mid-February.  The only reason I would give such a long time is because of the intervention of the law vacation which will have an effect on the capacity of Mr Austin to engage counsel.

Mr Hield, is there anything you want to say about that?

MR HIELD:   No, your Honour.

HIS HONOUR:   Mr Pignone?

MR PIGNONE:   No, your Honour.

HIS HONOUR:   Mr Austin, you had better take a note of what I am saying here and the Deputy Registrar, Ms Carlsund, will later provide you with a copy of the order I am about to make so that you will be under no misapprehension as to what is required and what will be the consequences of not complying with the requirements.

I order that the applicants for special leave to appeal file in the Sydney office of the Registry, and serve on the respondents, by 4 pm on Tuesday, 15 February 2000, the following documents:

(a)  the judgment of the court below;

(b)  the reasons for the judgment below;

(c)  a copy of the primary judgment and the reasons, if any, of the primary court that were before the court below;

(d)  such other documents, if any, as are necessary for the proper determination of the application;

(e)  a draft notice of appeal setting out the grounds of appeal to be relied upon in the event that special leave to appeal is granted, and the judgment or order sought in place of that appealed from, including any special order as to costs;

(f)  a summary of argument in conformity with the Rules.

I also order that in the event that the documents referred to are not filed and served by the date specified, the application for special leave to appeal shall stand dismissed.

Mr Austin, is there any reason why you and your wife should not be ordered to pay the respondents' costs of today's proceedings which were rendered necessary by your failure to comply with the Rules?

MR AUSTIN:   That is a matter for your Honour.  I would not dare put my head in the noose.

HIS HONOUR:   Very well.  I also order that the applicants for special leave to appeal pay the respondents' costs of and incidental to today's proceedings, such costs to be taxed by the proper officer of this Court. 

I certify that this was a proper matter for the attendance of counsel in chambers.

AT 9.59 AM THE MATTER WAS CONCLUDED