Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation Ltd

[1991] FCA 180

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. G 339 of 1987

GENERAL DIVISION 1

Between: BURGUNDY ROYALE

INVESWNTS PTY LTD AND

- ORS

Applicants

and: WESTPAC BANKING

CORPORATION LIMITED & ORS

Respondents/Cross Claimant

and: BURGUNDY ROYALE

INVESTMEWTS PTY LTD & ORS

Cross Respondents

Einfeld a	Svdney	26 March 1991
Tan Sri Wong has applied by motion for leave to appeal to a Full Court of this Court from my decision on 28 February 1991 that the Court has jurisdiction and power to entertaln a motion filed by Baker & McKenzie in matter no. G339 of 1987. Baker & McKenzie's motion seeks an order that a solicitor and client bill of costs be taxed as between Tan Sri Wong and Baker & McKenzie on the basis that Baker & McKenzie held a retainer from Tan Sri Wong to act for the applicants in that action. They also seek a declaration that the retainer was for costs on an indemnity and not a scale basis and for other orders.	circumstances set out in my remarks of that day. The parties	On 12 March 1991 I adjourned Tan Sri Wong's motion in the
have since presented their respective submissions and I have considered them carefully. On reflection I have come to the view that leave to appeal should be granted.
As I said on 12 March 1991, there is no doubt in my mind that the matters in issue in t h ~ s motion are appropriate for the Full Court to consider. The only question LS whether the jurisdiction issue should be dealt with before the substantive issue is litigated. If I were to rule on what is now intended to be an ex parte consideration of the retainer question, nothing will actually be achieved and no time wlll be saved.
If the argument on the retainer fails and Baker & McKenzie lose, the jurisdict~on point will be academic but that is Tan Sri Wong's choice. If Baker & McKenzie win, it will be no use proceeding with the bill of costs until jurisdiction is determined at an appellate level. Obviously the costs of its preparation would hardly be justified while final determination of jurisdiction is awaited. No bill can
apparently be taxed from some time in any event.
I have read with care the respective arguments of the partles concerning the powers and practices of the Hong Kong Courts. It is neither possible nor appropriate for me to try to determine what those Courts might do in the varlous combinations of circumstances that may arise in this case. Nor should I involve this Court in the respective tactical battles both parties are pursuing in this dispute so long as
they remain within the law, as I am satisfied prima facie that they do.
I should deal with this motion solely from the standpoint of what is appropriate on the facts of the case for thls proceeding in this Court. That is, that the decision I gave on 28 February 1991 that jurisdiction exists to consider Baker
& McKenzie's motion of 5 October 1990 is appropriate to go to
a Full Court as soon as convenient. I give Tan Sri Wong leave to appeal that decision.
[ DISCUSSION ]
This appeal should be expedited and I recommend that the maximum possible expedition be given to it. Partly this will of course depend upon how quickly the relevant appeal papers can be filed and collated but as the matter in procedural terms is within a short compass, that should not take very long.
On the question of costs, I think that the costs of the application for leave to appeal should abide the result of the
appeal.

I cert~fy that this and the 2-

preceding pages are a true copy of the

Reasons for Judgment herein of his Honour

Justice E~nfeld

,'

Associate

Dated. a6 iL l_c~rck \ ~ \ q \

P 9