Burke v Yurilla S.A. Pty Ltd

[1993] HCATrans 245

...

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al6 of 1992

B e t w e e n -

PHILIP DAMIAN BURKE

Applicant

and

YURILLA S.A. PTY LTD; THE
CORPORATION OF THE CITY OF

MITCHAM; D.R. & S.L. DOBIE;

W. & M.E. ADCOCK; W. & J.M.

DIGBY; V.J. PHILP; R.G. & J.A.

CHILDS; A. & A.W. MAROS;

J.A. & J.M. JENKINS; J. & A.

ARCHONDAKIS and N.L. FAZZALARI

Respondents

Application for special leave

to appeal

Burke 1 26/8/93

DAWSON J TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 26 AUGUST 1993, AT 12.19 PM

Copyright in the High Court of Australia

DAWSON J:  Mr Burke, you appear in person, do you?

MR P.O. BURKE:  Yes, Your Honour. Of course, in the first

place I seek leave to make that presentation.

DAWSON J: In seeking leave, you may put the arguments that

you want to put on the matter of substance.

DR R.J. BAXTER:  May it please the Court, I appear for the

respondents. (instructed by Finlaysons)

DAWSON J: Yes, Mr Burke.

MR BURKE:  So as I understand Your Honour, you will

reserve -

DAWSON J:  You are seeking leave to appear in person but, in

seeking leave, you can tell us what the arguments

are that you want to put on the matter of

substance. You need an extension of time, do you?

MR BURKE: 

I also need an extension of time, Your Honour.

DAWSON J: 

Very well. You can address all those matters.

MR BURKE: 

As far as the extension of time is concerned, the

point has been made in the outline of the
opposition that there is no good reason been put

forward why this matter should be distinguished or

put behind the other matters.

DAWSON J: 

Perhaps we could ask the other side. Mr Baxter,

do you oppose an extension of time?

MR BAXTER:	We do, Your Honour.
MR BURKE:	The reason for that is that knowing that I could

not put on the application in time I inquired and

for reasons which I think I understand, I was told

that the Registry could not accept an application

for an extension of time, there being no

originating document. The reason why that had to

take second place was because nobody is paying me

to act for myself in this matter. I was forced

into acting for myself, as the affidavit, which is

the first item in this small additional book, sets out. Over a period of·years my problems in trying

to obtain legal representation went over a number

of years and then my efforts with a number of firms

of solicitors and my efforts to remedy that are

also outlined in that affidavit, which is pages 1

to 11 of that additional book.

McHUGH J:	It is a very long period of time, Mr ·Burke.
MR BURKE:	Yes, Your Honour.

Burke 2 26/8/93

McHUGH J: It is almost a year.

MR BURKE:  What is that, Your Honour, before I

actually - - -

McHUGH J: Before you filed your application for special

leave to appeal.

MR BURKE:  As I say, these other matters are matters for

which I do expect to be paid, and I got round to

this as soon as I could as far as the extension.	I
cannot say anything more than that.	I was dragged

into the Federal Court on a misconceived bankruptcy

petition, among other things, so I really did not

have any breathing space at all.	As soon as I was
able to, I did get round to this.	I really cannot

say anything more than that, Your Honour.

TOOHEY J:  What are you seeking by this application,

Mr Burke, to challenge the decision that you are

bound by the terms of a restrictive covenant that

is part of a building scheme? Is that the

situation?

MR BURKE:	Yes, if I can move on to - I did have another couple of points to make in relation to the leave
to appear in person, but will I leave that?

TOOHEY J:  I do not want to divert you from that. I was

just trying to understand what, really, this

application is about.

MR BURKE:  Could I get that out of the way quickly? The

other aspect of this is that, having been

involved - dragged, as I say - and compulsorily

involved in legal proceedings almost continuously

for more than eight years, I would submit that that

is an additional ground under the terms of the new

rule. I am sure, in revising that rule, that the

Court was fully aware of the considerations set out

by Professor Campbell in that book. If I could

half years, I guess I could have done a law degree	just point out that in that time of eight and a
with something to spare. Compared with a new
graduate, perhaps my knowledge would be a little
bit more uneven but, on the other hand, I have had
the benefit of a little bit of practice which the
average new graduate would not have had, I presume.
The other aspect which perhaps is, on the points at issue, which I am going to come to
immediately, I have the advantage of some very
elaborately researched material from Bradbrook and
Neave, a significant section of a recognized text
and then, of course, considerable judicial
analysis by the court in Farrelly. Those would be the arguments, the relevant considerations I would

Burke 26/8/93

put forward in relation to being allowed to present the application, before I come to the merits, which

I will do now, if I may.

The Court may remember from the books that r

am the owner of one of 10 blocks of land in

Adelaide, held by the Full Court of the Supreme

Court in a special case to have been part of an

effective scheme of development. A similar scheme

of development was the subject of the Black v Rix

decision in 1962 by Chief Justice Napier. The

latter decision, it may be noted, was not defended.

Now, Justice Toohey, you asked me the thrust

of what I am after. I have two points. My first

submission, with respect, is that the

interpretation of the provisions of the

South Australian Real Property Act, the Torrens

Act, in relation to the passing of restrictive

covenants, was incorrect.

TOOHEY J: Yes, I was not, at that stage, asking you,

Mr Burke, about your propositions of law, but I was

trying to see what the application was about. Is

it that you claim not to be bound by the terms of a

restrictive covenant?

MR BURKE:  Yes, well I am seeking to not - yes, not that

they cannot be enforced against me because the

caveat procedure was not followed in the original

transfers of title.

TOOHEY J: And, is the restrictive covenant one that goes to

residential or non-residential building on the land, or does it go to something else as well?

MR BURKE:  What I would like to do is to put up semi-

detached, or have the right, to put up two semi-

detached buildings as opposed to one which is what

the argument is all about. The restrictive - - -

TOOHEY J: Is this matter not controlled by local authority

or building regulations?

MR BURKE:  The first, as I understand the position, the

first Planning and Development Act in South

Australia came in in 1966 and which was replaced in

1982 by the current Act. This covenant -

encumbrance and covenant - was finalized in 1955,

at which stage, I presume, the council got involved

in these things of its own initiative, without the

benefit of statutory backing, and that is my

understanding of that position. Should I - - -

DAWSON J: Yes, please continue.

Burke	26/8/93
MR BURKE:	The Court will also be conscious that when the

first town statute was enacted in 1858 in South

Australia, Tull v Moxhaywas only 10 years old, and

the rules about the creation and the enforcement of

restrictive covenants were not yet clearly settled. For example, the London County Council v Allen case

was still 56 years off, in 1914, and that, of

course, determined the need for a quasi dominant

tenement, as I understand it, consistent with the

idea that something in the nature of a negative

easement was involved in the Tull v Moxhay ruling,

although that was not always clearly recognized.

If I could start by referring to - the first

and only time I will do this directly -

paragraph 1701 in the extracts from

Bradbrook and Neave, they make the point that I

have just made, and then they continue:

Difficult questions arise concerning the

extent to which the principles governing

branch of the law which rests so heavily on

restrictive covenants apply to land under the

the doctrine of notice cannot be grafted on to

a tree which repudiates that doctrine without

impairing the general health of the tree."

"A branch of the law which rests so heavily on

the doctrine of notice cannot be grafted on to

a tree which repudiates that doctrine without

impairing the general health of the tree."

The first basic question, therefore, in this

application, is whether the structure and

philosophy of the South Australian Real Property

Act are such that the protection for restrictive

covenants as to the use of freehold land, whether

or not contained in an encumbrance registered under

the Act, should be sought by means of the caveat

procedure as for other equitable interests; that is

to say, whether the decision in Blacks v Rix was

wrong.

McHUGH J: Well, that is the first question, is it not?

MR BURKE: That is the first question, yes.

McHUGH J:  The question that, at the moment, concerns me

more is the consequences of overruling Blacks v Rix

having regard to the matters that are set out at

page 42 of the book, Mr Burke.

MR BURKE:  Yes, Your Honour, you are referring to

Babaniaris. That is my second basic question, whether, in terms of statutory interpretation a

positive answer to that first question is so clear

Burke 26/8/93

cut that it meets the criterion formulated by the

two majority judgments of this Court in Babaniaris

v Lutony and that, as a consequence, Blacks Ltd v

Rix should now be overruled, even if - and this is by no means clear here to me - the effect on long

standing practices would be considerable

inconvenience, assuming that the overruling were to

be traditional. In my submission, the answer to

the first question is so clear cut and Blacks Ltd v

Rix does need to be overruled.

The way in which I would like to proceed and

justify my answer to those two questions in the

time remaining is this:  I will start from the Full

Court reasons, identifying what I perceive to be a
couple of major flaws therein. Secondly, unless

otherwise necessitates, I will focus my attention

mainly on some additional materials which I

understand the Court should have available: a few

sections of the Real Property Act, the Smith v
Farrelly report, particularly Dr Bray's judgment
and, thirdly, the sample encumbrance put in by the

Full Court interveners, which is item 2 in the

additional books starting at page 19. It is just

the Real Property Act, the Smith v Farrelly report,

and that sample encumbrance, item 2 from the

additional book.

If I can make a preliminary assertion, which I

will not go into unless I am required to, paragraph

1723 to 1732 in the Bradbrook and Neave excerpts

present a strong and extensively researched

argument, in my opinion, with respect, that

restrictive covenants are equitable interests in

the required sense and they are able to be

protected by means of the caveat procedure. This

was not disputed before the Full Court, nor	was it
disputed by the Full Court in its reasons.	If I
could ask the Court to turn then to page 28	of the
application book, which is page 11 of the
Full Court reasons, and consider that first
paragraph there:

Where a building scheme is found to exist in

the case of land under the general law and the
successor in title has notice of the
covenants, the courts of equity will enforce
the common interest in maintaining the

restrictions. To use Lord Macnaghten's

words ..... the community of interests

necessarily requires and imports reciprocity

of obligation. In the case of land under the equitable right will depend on whether a person dealing bona fide with the registered

proprietor will be deemed to have notice of

the restrictive covenants contained in a

Burke 6 26/8/93

registered encumbrance. If he is, the courts

will be able to enforce the equitable

interest.

With respect, in my submission, this paragraph

begs the question, and does so quite incorrectly, I

submit, as to whether the indefeasibility and/or
other provisions of the Real Property Act serve to
render irrelevant the effect of notice of prior

unregistered equitable interest on the registered

proprietor. I would like now to go directly to a

few short sections of the Act and consider that.

Perhaps in the first place, on page 7 of the Act,

that is sections 10 and 11, headed, Objects of this

Act:

The objects of this Act are to simplify the title to land and to facilitate dealing therewith, and to secure indefeasibility of title to all registered proprietors, except in

certain cases specified in this Act.

And then Construction, section 11:

This Act shall always be construed in such a manner as shall best give effect to the

objects hereinbefore declared.

If I could then go to section 69 and briefly look

at that. That is headed, Title of registered

proprietor indefeasible, except in cases of:

69. The title of every registered proprietor

of land shall, subject to such encumbrances,

liens, estates, or interests as may be

notified on the original certificate of such

land, be absolute and indefeasible, subject

only to the following qualifications -

which need not detain us.

McHUGH J: But notwithstanding those provisions and those

objects, for an extremely long period of time the

courts have recognized equitable interest.

MR BURKE: With respect, Justice McHugh, what do you mean by

that?

McHUGH J: Well, in terms of equities arising out of various

instruments and certain - - -

MR BURKE:  You are referring to the practice in South

Australia?

McHUGH J:  No, I am just talking about generally. The

courts recognize equitable interest.

Burke	26/8/93
MR BURKE:	Yes, certainly.
McHUGH J:	I thought you were complaining about what appears

at page 28, as though -

MR BURKE:  Yes, I am. What I am saying is, these

indefeasibility provisions of the Act, and there
are a couple of others left, they rule out the

passing of the burdens of restrictive covenants,

arising from Tulk v Moxhay and Elliston v Reacher

scheme of development type interests.

TOOHEY J: Well, that might be, if they were not otherwise

protected by reason of the operation of the Act.

Is that not the situation here? Did you take this

land subject to an encumbrance?

MR BURKE: Well, I did not know about - - -

TOOHEY J:  I am not asking you whether - I appreciate you

might say you are not bound by it, but did the

transfer carry with it an encumbrance of the

Blacks v Rix type?

MR BURKE:  No, Your Honour, I do not think so.

TOOHEY J: Well, why is Blacks v Rix relevant here.

MR BURKE: Sorry, I misunderstand, I think. The original

sale of land, yes. There is on my certificate of

title mention of the encumbrance - of the original

encumbrance - which does include the restrictive

covenants which are at issue.

TOOHEY J: It is an encumbrance in the form of a rent

charge, is it?

MR BURKE:  Yes.

TOOHEY J: Which carries restrictive covenants, including

the one that we are concerned with.

MR BURKE:	Yes, Your Honour.
TOOHEY J:	And the effect of that decision, I take it, was

to hold those covenants to be binding against

subsequent purchases.

MR BURKE:	Yes, Your Honour.
DAWSON J:	And that you had notice.

MR BURKE: Well, I presume I had constructive notice,

because it was discoverable from the register.

DAWSON J: Yes.

Burke 26/8/93

MR BURKE: There is a mention on the - the certificate of

title merely has the encumbrance number, and by

going to the other instrument I can find out

the - - -

DAWSON J: That was said to put you on notice.

MR BURKE:  I am not sure that there was any mention of that

at all at the time.

TOOHEY J: But any certificate of title will have

encumbrances noted on it like a mortgage or a lease

or an easement or something.	It does not have the
whole body of the document.	You then go and look
at the relevant document.

MR BURKE:  Indeed, at some stage I did. It was only

recently that I went and looked. The point I was

making was I do not think it was drawn to my

attention at all at the time of the transfer, as

far as I know, and I do not think it is in the

transfer document, but it is certainly on the

certificate of title. Section 72 is another very

brief section, if I may continue along that line,

just to finish that off, "Knowledge of trust is not

evidence of want of bona fides":

72.      Knowledge of the existence of any

unregistered estate, interest, contract, or

trust shall not of itself be evidence of want

of bona fides so as to affect the title of any

registered proprietor.

Section 186, "Purchases from registered proprietor

not to be affected by notice":

186.       No person contracting or dealing

with, or taking or proposing to take a

transfer or other instrument from the

registered proprietor of any estate or
interest in land shall be required, or in any

manner concerned, to inquire into or ascertain

the circumstances under, or the consideration

for, which such registered proprietor or any

previous registered proprietor of such estate

or interest is or was registered, or to see to

the application of the purchase-money, nor be

affected by notice direct or constructive of

any trust or unregistered interest, any law or

equity to the contrary notwithstanding.

The final relevant section is section 249, the heading of which is "Equities not abolished":

249. Nothing contained in this Act shall

affect the jurisdiction of the Courts of law
and equity in cases of actual fraud or over

Burke 9 26/8/93

contracts or agreements for the sale or other

disposition of land or over equities

generally.

And the intention of this Act is that,

notwithstanding the provisions herein
contained for preventing the particulars of

any trusts being entered in the Register Book,

and without prejudice to the powers of

disposition or other powers conferred by this

Act on proprietors of land, all contracts and

other rights arising from unregistered

transactions may be enforced against such

proprietors in respect of their estate and

interest therein, in the same manner as such

contracts or rights may be enforced against

proprietors in respect of land not under the

provisions of this Act - - -

TOOHEY J: Mr Burke, I think a lot of this, really, is

really not to the point. You see, as I understand

the decision in Blacks v Rix, it was that there was

an encumbrance over the land by reason of this

document which took the form of a rent charge to

which were attached restrictive covenants. Now,

under section 69 of the Real Property Act:

The title of every registered proprietor -

is indefeasible

subject to such encumbrances, liens, estates

or interests as may be notified on the

original certificate -

and the view taken by the Chief Justice in those

days was that this was an encumbrance which

burdened the land and, therefore, carried with it

the restrictive covenant.

Now, the decision has been criticized, as you

have pointed out. It has been in force since 1962.

It has clearly been the basis of a whole, large
scale land dealing in South Australia.	I think, in

the Full Court, it was said that since that

decision the Real property Act has been amended,

what, 22 times. Parliament has never thought it

necessary to interfere with the decision, or to

provide otherwise for the registration of

restrictive covenants, presumably on the basis that

it was content that the Chief Justice's decision

reflected the law.

Now, you are really asking us to embark on an

examination of that decision with a view to setting

aside long standing practice affecting countless

land dealings in South Australia, in a situation in

Burke 10 26/8/93

which the land that you bought had noted on it an

encumbrance which, if you had chosen to look, would

have shown that there was a restrictive covenant.

MR BURKE:  Yes, Your Honour. With respect, there are two

major answers to that, or responses to that. The

first one is, which I am sure you are well aware

of, the two majority judgment in Babaniaris do -

if I could ask the Court to return to page 41 of

the application book, there is a reference in the

Full Court reasons, second paragraph:

In cases of statutory construction,

however, if the court is convinced that a

previous interpretation is erroneous, then the

court will correct the error and declare the

true intent of the statute: Babaniaris -

in two places:

13, 23.

Thirteen, I think, was then Justice Mason's

judgment and the one at 23 was the joint judgment

of Justices Dawson and Wilson, as I recollect.

The point is that in a clear-cut case, which I

would submit this is, the Court will not be party

to perpetuating, as I think the words were in one

of those judgment, an error. Now, it is my

respectful submission, in the first place, that the

misinterpretation of the Real Property Act in

Blacks v Rix is quite clear cut, and would come

within those provisions.

To come to the second point that Your Honour

has raised, even to come to the effect of making

such an overruling, the sample encumbrance that was

put in by the interveners and in the accompanying

affidavit indicated to be typical of something like

30,000 blocks that the interveners were concerned

will see that it has been very carefully drawn and with in South Australia. If you look at that, you possibly attention has been paid to the comments of
Dr Bray in the Farrelly case.

Several things can be said about that. It is

arguable that those encumbrances, regardless of the

Blacks v Rix decision, could be enforced by the

encumbrancee, if not by anybody else, against a

landholder, because of the way in which the

restrictive covenants have been integrated in the

payment. In other words, if one looks at that

restrictive covenant around the position of line

21:

Burke 11 26/8/93

the encumbrancer ..... DOES HEREBY ENCUMBER the

said land with the payment to the Trust -

of a nominal sum -

AND with the performance and observance of the

covenants on the part of the encumbrancer - And further down:

PROVIDED THAT the Trust shall not demand

payment of the said rent charge if and so long

as the encumbrancer and his successors in

title shall duly perform -

In other words, that is exactly what, a suggestion made by, or almost exactly by Dr Bray in several

places in his reasons. I would submit, with

respect, that it is arguable that even if

Blacks v Rix applies in full, arguably, if one

applies the reasoning of Mercantile Credits in so

far as that has any relevance to these

encumbrances, because the restrictive covenants are

made an integral part of the encumbrance, arguably

they are protected and enforceable as part of that

encumbrance. That would be applying the logic of

Mercantile Credits which has been picked up by the

Full Court in its reasons and made, in the second

paragraph on that page on 28 in what I would submit

is a rather strange way, a basis of their decision.

But I would submit that it may possibly have a

relevance to the present issue in the way I have
just indicated. Professor Neave mentions that in
the footnote 26 in her extracts that this may

possibly be an argument which would protect the

covenants and by looking at them as part of the

encumbrance, and therefore sharing in their

enforceability.

TOOHEY J: That is an argument against you, you mean.

MR BURKE:

No, I do not see it as an argument against me,

with respect, I merely point that out in relation

to - as a partial response to your question of the

inconvenience of overruling. If Mercantile were

applied to the encumbrances in that way, in the
case of encumbrances as in this sample encumbrance

which have been intertwined, arguably the

encumbrancee could enforce them. Even though the

general scheme of development, the other
landholders could not.

The other angle on that sample encumbrance is that if I could direct the Court's attention to the

slight extract I have from the Golden Grove

(Indenture Ratification) Act 1984, section 7 of

that, which is page 2 of that Act -

Burke 12 26/8/93

McHUGH J: Where do we find that? It is in the bundle, is

it?

MR BURKE:	Yes, there is an extract of about 6 pages.
McHUGH J:	I have got it.
MR BURKE:	The first two pages are the actual Act, the rest

of it are the schedule of the Golden Grove

Indenture. The relevant part ..... can quickly have

a look at that to see what the drift of all that

is. It is just ratifying the indenture. Section 7

says, and the heading of that is "Modification of

law to give effect to indenture."

7.(1) The law of the State is so far modified

as is necessary to give full effect to the

Indenture and the provisions of any law of the

State shall accordingly be construed subject

to the modifications that take effect under

this Act.

Secondly:

(2) Without limiting the generality of

subsection (1) -

(a) the Planning Act,1982, and the

Real Property Act - - -

TOOHEY J:  I am sorry, why are you taking us to this,

Mr Burke?

MR BURKE:	It seems to me that section 2, the Real Property Act shall be construed subject to the provisions of the indenture. What it seems to me to be saying is
that if in fact the Court were to overrule Blacks v
Rix and that in fact were perceived to cause some
problems for the whole scheme of this Golden Grove
Act, then in so far as those problems were caused
by a proper interpretation of the Real Property
Act, they would be null and void. That is the way
properly and very carefully in fact drafted the and the drafters of those covenants have very I would see the substance of that, in that context,
encumbrance and the covenants to absolutely
minimize any reliance that you might have to make
on this, but it would be there in the background.
So I am merely putting forward, Justice Toohey, in response to your earlier question that in fact for
this Golden Grove at least, it would appear to be,
because of these provisions, no effect at all.

McHUGH J: That is one case, but there would be many other

cases.

MR BURKE:  Yes. My final point on that is that, if I could

refer you to another little extract which is

Burke 13 26/8/93

page 181 of the ANZ Conveyancing Report, which you

should also have in that bundle, it is a comment by

the editor on the Full Court Burke v Yurilla case.

There is just one small paragraph that says - it is

in the authorities. Rather than anything else this

is what is meant to be.

DAWSON J:	What is it you are directing our attention to?
MR BURKE:	Page 181 of that report.  It is an editorial

comment. First of all it follows a report of the the comment by the editor:

Burke illustrates the enforcement of

restrictive covenants when the restrictions

formed part of a building scheme. That is

less important currently than in the past, as

many restrictive covenants are created by

registration of the plan at the time of

subdivision of a parcel, pursuant to express

legislative provisions authorising it.

I do not know what he is referring to. I presume

he is referring to similar arrangements to this

Indenture Ratification Act which this does not seem

to be one of. That just seems to be something

different. What he seems to be saying is that it

is widespread, that there is statutory basis given

to these schemes which would protect the intentions

of the development schemes. I have nothing further

to justify that.

As far as the confusion, the inconvenience,

that might result from a traditional overruling, I

just summarize again: the way the encumbrance

incorporates the restrictive covenants, I would

submit - and that is supposed to be typical of the

30,000 blocks with which those interveners were

concerned - that integration would minimize and may

be quite sufficient for the purposes of a scheme of development any intervention with those restrictive

covenants, even if they only could be enforced by
the original encumbrancee.	On top of that, we have

these statutory provisions which seem to apply in

the Ratification Act of the Golden Grove scheme and

there seems to be - there is a reference there by

the editor to "other such statutory intervention"

which also would seem to minimize these effects.

DAWSON J:  I think you have made this point.

MR BURKE: All right, Your Honour. It may be then that I

have more or less completed my submission, without

going back to - to go back to that Babaniaris case,

the principles involved there.

Burke 14 26/8/93

DAWSON J: There is nothing more you desire to put?

MR BURKE:  No. If the Court does not want me to do that, r

will stop it at this stage.

DAWSON J:  Thank you very much. The Court need not trouble

you, Mr Baxter.

The Court is of the view that the actual

result arrived at by the Full Court is correct.

Accordingly, having heard the arguments in full

which the applicant would desire to put, it is

unnecessary to deal with his application for leave

to appear in person.

The application for an extension of time for

making an application for special leave being

opposed, that application is refused, but upon the
basis that no ground for the granting of special

leave to appeal has been made out.

MR BAXTER:	I apply for costs, may it please the Court.
DAWSON J:	Mr Burke, can you say anything about that?
MR BURKE:	With respect, Your Honour, there is a ruling in a

case which is not unconnected with this, West Lakes

v Makris, a single judge of the supreme court,

which said - ostensibly applying the Full Court

decision in my case - that only the encumbrancee

was entitled to enforce that - and I am not

familiar with the exact reasoning behind that - so

only the encumbrancee was entitled to costs. I

would rely on that and say that since the

encumbrancee is not in fact one of the respondents

in this case, that therefore the respondents who

are here would not be entitled - - -

DAWSON J: This really is the refusal of an application for

an extension of time, Mr Burke.

MR BURKE:  I cannot say anything about that, Your Honour.

DAWSON J: Very well. The application is refused, with

costs.

AT 12.57 PM THE MATTER WAS ADJOURNED SINE DIE

Burke 15 26/8/93