Cachia v St George Bank Limited

[1993] HCATrans 387

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S27 of 1993

B e t w e e n -

SAVIOUR LAURENCE CACHIA

Applicant

and

ST GEORGE BANK LIMITED

(formerly St George Building

Society Ltd)

Respondent

Notice of motion

BRENNAN J
DEANE J

McHUGH J

Cachia(2) 1 10/12/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 1993, AT 10.38 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my

learned friend, MR K.P. SMARK, for the applicant.

(instructed by

MR J.C. CAMPBELL, QC: If it please the Court, I appear for

the respondent to the motion.	(instructed by Allen
Allen & Hemsley)

BRENNAN J: Yes, Mr Jackson?

MR JACKSON:  Your Honours, the Court has, I think, a copy of

our outline of submissions, "outline", perhaps

being a term which overstates the situation.	We
have endeavoured, in view of the nature of the

matter, to set out our submissions at length,

including the substantive matters which we wish to

say. Your Honours will see - there should be

attached to the outline of submissions also a copy

of the various extracts from the proceedings of

earlier stages to which we wish to refer.

Now, Your Honours, this, of course, is an

application for the Court to reconsider the hearing

of the special leave application that took place

before it on 9 August and, Your Honours, the order

has not been taken out. Your Honours, the first

question which arises is that of the jurisdiction to reconsider the application. Our submission is that the Court does have jurisdiction to reconsider

it in those circumstances and we would seek to rely

on the cases that we set out in paragraph 2 of the

outline of submissions.

Your Honours, I would not propose to addres.s

further on that unless Your Honours wish to hear me

on that question. But may I turn then to the
second aspect of it and that is the factors which

would support there being a reconsideration if the

Court is satisfied there is jurisdiction to do so.

Your Honours, we have endeavoured to set those out

in paragraph 3 of the outline of submissions and

may I refer, in particular, to a number of matters.

The first is the general proposition Your Honours

will see set out in paragraph 3(a), that the

applicant on the previous hearing was not legally

represented. Your Honours, voluntarily, may I say,

in one sense, in the sense that, as Your Honours

would have seen from the material in support of the

application for special leave, it had difficulty in

obtaining legal representation. Your Honours, that

is referred to in paragraph 3(b) of our outline of

submissions. But, of course, in appearing for

himself, he does suffer the difficulties that one

inevitably sees when a person does so.

Cachia(2) 10/12/93

Your Honours will see, in particular, the

matters to which we refer in paragraph 3(c) of our

outline of submissions, namely, the fact that there

was an excess of riches for the Court and, in a

sense, for the courts below because the plethora of

matters put before the Court diverted attention

from what, in the end, in our submission, was the

issue that might have attracted special leave from

the Court.

McHUGH J: But is that not one of the problems, that the

issue that you now seek to raise does not appear to

have been raised either at the trial, in the Court

of Appeal - - -

MR JACKSON:  Your Honour, with respect, that is not quite

correct. May I take Your Honours in that regard to

the application book and, in particular, to

page 25.

BRENNAN J:  Now, we have only one of these available,

Mr Jackson.

MR JACKSON:  Your Honour, I am sorry, I did not appreciate

that the materials would not be before the Court

again. Could I give Your Honours another one?

BRENNAN J: Yes.

McHUGH J: There is only the Court's record - there is only

the one copy. All the rest were destroyed after

the special leave application.

MR JACKSON:  Your Honour, I am sorry. I was not aware of

that. If I had known that, I would have -

DEANE J:  We do not leave our appeal books with our comments

and marks on them to remain for the scrutiny of

other people.

MR JACKSON:  Your Honour, I can understand entirely the reason why that might happen. I had assumed, I am

afraid, that in view of the relatively quick filing

of the present application that the documents would

have been held for the Court.

DEANE J:  You need to be very quick in the case of my

chambers.

MR JACKSON:  Your Honour, I will not seek to take that

further. Could I just take Your Honours to, first,

if I could go to page 23 at the bottom of that.

This is the primary judge's reasons for judgment.

His Honour is there saying, in the last two lines:

As best I understand it the plaintiff contends

that there were three contracts:

Cachia(2) 3 10/12/93

Could I go then to the top of page 25 where he sets

out the third one where he speaks of:

A contract created by the Deed of Transfer of

Engagements, including annexures.

He said:

There is no allegation the plaintiff was a

party to that contract, although the plaintiff

seeks rectification of it.

In the context in which he is speaking and the

context of the whole of the judgment, in our

submission, it is apparent that the plaintiff was

seeking to enforce one or more of the several

contracts upon which he was relying, and the one,

of course, that comes before the Court now is the

contract, in effect, constituted by the events

leading to and including the deed of transfer of

engagements.

McHUGH J: But that is not the way I was putting it to you.

He may have been relying on a contract created by

the deed of transfer but he was not relying on a

contractual provision in the sense that you seek to

rely on it.

MR JACKSON:	Your Honour, could I say this in relation to that? Your Honour, the position was that the focus
which the applicant gave his application before the
Court on the previous occasion and in the two courts below was one that was derived from really
two things in a sense.  One was what happened in
1988, the later occasion, and that consists of the actual events which are the subject of the material
in the written submissions which were given
Your Honours. But he also sought to rely upon
what, in effect, was a gloss on top of that and
that is that what was said was that there would be
an offer on the same terms as in 1987. The gloss
that he sought to give to that was that that meant
that discretions would be exercised in the same
way, in the same manner.

Your Honours, what was sought to be made from

that led, in one sense, I suppose, to an element of potential absurdity or unlikelihood and that seemed

to be a view underlying the view that the Court

took on the previous occasion. I say that, as best

one can derive it from the questions which were put

to him.

But, Your Honours, that still left a question

of what there was in the first aspect of that; the
first aspect being the 1988 contract, assuming that
the discretions did not have to be exercised by

Cachia(2) 10/12/93

reference to wha-t went before. It was a question

simply of what there was in any event.

Your Honours, that is the matter that we would seek

to urge upon the Court.

Your Honours, in relation to that, may I then

proceed to deal with what is in section D of our

outline of submissions at the bottom of page 3.

Now, Your Honours will see in paragraph 4 that we set out the underlying position. He was a member

of the State Building Society and also of the

respondent. The provisions to which reference is

made are contained immediately following the

outline of submissions. I do not think I need to

take Your Honours to those immediately.

Your Honours will see then that the

respondent - and this is paragraph 5 - made an

offer to accept a transfer of engagements from

State upon the terms there set out. Your Honours

will see paragraph 5 of those terms set out in

paragraph 5 of the submissions, there being - and

if I could go to the fourth line:

shareholders of State Building ..... should be

offered an opportunity to apply for permanent

shares on the same basis -

and those are the words that, in effect, caused the

focus on that in the previous hearing -

as was offered to members of St George

Building Society last year.

And then the general conditions are there set out.

Now, Your Honours, could I just say, in

relation to it, that if one is trying to

characterize what that is, perhaps a good place to

start is how it was described by St George Building

Society itself.	Your Honours will see in
paragraph 6 a description of it as "a bid" in a

page which Your Honours will see is page

numbered 395 in the documents which follow the

outline of submissions where, the first paragraph

of that:

St George Building Society welcomes the
unanimous acceptance of its bid .... by the

Board of the State Building Society at its

meeting today.

Then, Your	Honours, what was required was that
there be a	statutory statement prepared. At
page 399K,	the Registrar says he approves the

statement. The statement is attached. And then

Cachia(2) 10/12/93

page 402, paragraph 5, Your Honours will see the

relevant clause of it.

Now, Your Honours, following that there was a

note was sent to the members of State with the

notice of general meeting and if I could go then to

paragraph 7 of our outline of submissions. It is

noted as being part of the offer that was made.

That is at page 415 I to J, and it was expressed,

Your Honours, in the passages referred to at the

end of paragraph 7, to be an offer "to members" of

State.

Could I take Your Honours to page 415 I to

J. The next one is 418G to H, which is part of the

report to members of the respondent by its board.

They say:

Accordingly, we have offered to State

Building Society Members the opportunity -

et cetera. Then at page 420P, which is a press

release by the respondent:

St George is also to offer fixed shares to

State Building Society shareholders, who will

be eligible -

and so on.

Now, Your Honours, there was then the deed

which provided for the transfer of engagements.

That appears at page 512. Your Honours will see,

immediately, that the applicant is not a party to

it, it is between the two societies, but one then sees that in clause 9 of it at page 515G there is provision for the making of the offer to members of

the transferor.

What was done, Your Honours, was that if one goes immediately following the text of the deed

itself to page 526, what one sees is the previous

years St George offer containing various terms.

Then, Your Honours, if one goes back to page 515,

paragraph 9, there are set out the various

amendments that are to be made to that.

McHUGH J:  One paragraph that was not amended was

paragraph 5, and it seemed to me on the previous

occasion and it still seems to me at the moment

that whatever else might be said about this case,

your client has never complied with paragraph 5.

MR JACKSON:  Can I say two things about it, Your Honour -

and	it is	paragraph 5 and paragraph 7, if I could
say	that.	In relation to both those provisions,
the	first	thing was that he was notified before the

Cachia(2) 6 10/12/93

time for the off~r had expired that they would not

accept more than the minimum entitlement. Your

Honour, that, in our submission, was, assuming he

was entitled to sue on the document, a breach of

it. The reason why I say that, Your Honour, is if

one goes to condition 7 of the offer, and

Your Honour will see that - - -

McHUGH J: But how could he sue for breach of clause 7

unless he had a contract in which clause 7 was

incorporated?

MR JACKSON:  Your Honour, I was assuming that for the

moment. What I am seeking to say in relation to it

is this: that it is a case where, although he is

not a party to the agreement constituted, for

example, by the deed, it is a case which gives rise

to the question whether he is a third party

entitled to sue, entitled to take the benefit of

the promise that is contained in the deed and then

flows into paragraph 7, for example.

McHUGH J: But does not clause 9 of the deed tell strongly

against that, because part of the contract between

State and St George was that St George would make

an offer to the members of State in accordance with

annexure A?

MR JACKSON:  Yes, Your Honour.

McHUGH J: That tends to indicate, does it not, that any

offer that was to be made to the shareholders of

State would be an independent offer and any

contract between State shareholders and St George

would be as a result of taking up that independent

offer? ·

MR JACKSON:  Your Honour, there are really two contracts, in

our submission. What Your Honour says is entirely

correct, with respect, as to a contract that might

result from acceptance of the offer, to put it

loosely for the moment. But there was also, in our

submission, a contract anterior to any contract that might arise from acceptance of the offer,. that contract being one of which the applicant was

entitled to take advantage whereby such an offer

would be made and continued on the relevant terms.

The point I am seeking to make about it,

Your Honour, is that if we are correct about the

construction of it, what one had was a situation

where St George had undertaken to make an offer on

various terms, and there was a contract enforceable

by the applicant too that that offer be made and be

made on those terms. One of the terms of it was

that the offer would remain open for at least a

month. That is in condition 7, Your Honour.

Cachia(2) 10/12/93

The first point I am seeking to make about it

is that before the expiration of the month they

said to him, "We won't accept applications for any

more shares than the minimum entitlement", and that

itself - - -

McHUGH J:  They may have said that but your client did not

make the application on the form which clause 5

spoke about.

MR JACKSON: Well, he did, Your Honour.

McHUGH J: Did he?

MR JACKSON:  Yes, Your Honour.

McHUGH J: At that stage?

MR JACKSON:  He had made an application for in excess of

4 million shares.

McHUGH J:  He made an application on 25 October, did he not,

which was rejected on the 27th?

MR JACKSON:  Yes. He then made a subsequent

McHUGH J:  He made it subsequently.

MR JACKSON:  Yes. Your Honour, the document is, I think, in

the pages that are extracted.

McHUGH J: There is a letter, I think, of 14 November, is it

not, which -

MR JACKSON: That is a letter following his formal

application, at page 546. Your Honour, what he had

not done was at that point put up the money or put

up all the money.

McHUGH J:  He had not nominated a sufficient sum of money on

a designated share account which might be applied

by the Society.

MR JACKSON:  Yes. Your Honour, I have really said there are

two aspects of it. The first is this: that what we

seek to say is that the time for lodging

applications and/or putting money in to support
applications, perhaps informally lodged, had not
expired at the time when he was given the letter of

14 November which appears at page 552 and was told

that they would only accept an application for his

1800 shares which was the minimum entitlement.

That is the first thing. One needs to go a little

further to make out that it is a breach of contract

but if I could ask Your Honours to assume that one

of the terms of the deed - - -

Cachia(2) 10/12/93

McHUGH J: But the breach of contract is, on your argument,

a breach of a contract between your client and

St George arising out of the deed of 29 September?

MR JACKSON:  Your Honour, I would put it slightly

differently but to the same effect. The way in

which we would put it is to seek to say that the

transactions between the two societies gave raise

to a contract between them but it was a contract

which, in terms of, for example, clause 9, was one

intended to confer benefits on the persons who were

to vote in respect of the transfer of engagements

and that that is a class of case in respect of

which the third party for whose benefit the

contract is made, amongst other things, is entitled
to sue.

Now, Your Honour, there is no doubt that the question of his entitlement to sue as a third party

in respect of what took place in the transfer of

engagements was before both courts below.

Your Honours, that that is so, if I could just give

Your Honours the references in that regard, it

appears in respect of the primary judge in the
passages to which we have referred at paragraph 16
and in respect of the Court of Appeal, it appears

- - -

at page 60, line 36, through to page 61, line 56. would

McHUGH J: Yes, but that is not the way it was put in the

Court of Appeal. If you look at page 60, line 50:

Mr Cachia, however, contends that the contract is to be derived not from the Deed (which he

at times puzzlingly asserts is not relevant on

the basis that a deed is not a contract) but

rather from the antecedent negotiations.

MR JACKSON:	Your Honour, if one looks through the passage going through to page 61, about line 56, it is
clear that the court was taking the view that the
relevant agreement, if any, was the deed of
transfer of engagements and, Your Honour, in relation to that, the issue arose as starkly as it
ever did in relation to the antecedent negotiations because it was exactly the same point.

McHUGH J: Except that your client seemed to have put his

case, really, on the document of 4 August.

MR JACKSON:  Your Honour, he put his case in many ways, I

think it is right to say, but one sees, for

example, that in the statement of claim or the

points of claim in the proceedings, in
paragraph 19 - I am referring to page 3 of the

original record - he said, "The deed of transfer of

Cachia(2) 10/12/93

engagements inclusive of its annexures A and B made

between the two societies on 29 September also

constitutes a contract between State and the

defendant", and then appears to be suing on one or

other of the relevant contracts.

Your Honours, the basis I have referred to so

far is really the first basis.	I said there were
two contracts before.	The second was in relation

to the smaller number of shares because at the time
when the acceptances in fact closed, he had put in
the money to buy at least 300,000 of the shares so

that he had, although the two had not been put in

contemporaneously, in fact put in his application,

he had then put in the money to buy at least

300,000 shares and, Your Honours, the money was

there for those the day before the last day the
board decided was the day for application, and the

point - - -

McHUGH J:  But as a matter of strict theory, his document

consisted of a counter offer which rejected the

board's offer. He did not comply with clause 5 so,

therefore, what he did must have constituted a

counter offer.

MR JACKSON:	Your Honour, it depends on the construction of the offer that was put to him, and our submission
would be that if one looks at the terms of
condition 5 and condition 7, they were perfectly
capable of being complied with by there being two
things: the application, on the one hand and an
application which was supported by the money being
placed in there before the time came to an end
would seem a strange construction, with respect, if
the result was that an application which was
without money could not be revivified or vivified,
as it were, by putting in the money.

Your Honours, those are our submissions in

addition to the matters in the written submissions.

McHUGH J:  I am just not clear even now as to what your

contract is, Mr Jackson.	What ultimate order would
you seek?

MR JACKSON:  If we were successful in the proceedings,

Your Honour, we would get a judgment in our favour

for damages, the damages being those constituted by
the failure of the respondent to, in effect, keep

the offer open for the time that was the subject of

condition 7, that is, at least a month. Now, the

quantum of the damages that would be assessed in

consequence of that would depend on the extent to

which the Court was satisfied - and no finding on

this was made by the primary judge - that the

Cachia(2) 10 10/12/93

respondent would have put in an application and the

money in time before the offer closed, in effect.

McHUGH J: But clause 7 and clause 5 were very much

connected because one of the provisions of clause 7

was that the Society was entitled to freeze the

money in the account and you had to comply with 5

before 7 had any operation.

MR JACKSON:  No, Your Honour, I am sorry, perhaps I am not

making myself clear. What I am seeking to say is

this, that if one looks at clause 7 - may I start

with that first?

McHUGH J: Yes.

MR JACKSON:  It is page 543F to G, and it is the second sentence commencing at F.

McHUGH J: But now you are dealing with a different offer

altogether, are you not? You are now dealing with

the offer that was sent out to your client on

27 October? You are not dealing with the offer

which was the annexure to the - - -

MR JACKSON: It is the same thing, Your Honour.

McHUGH J:	Not necessarily at all, is it?
MR JACKSON:	I am sorry, Your Honour, with respect, I did

not mean to be flippant in saying that. What I am

seeking to say is this, that if one looks at the

deed, the deed says, "The offer is to be in these

terms - exactly these terms".

McHUGH J: Yes, but I thought from what you were putting

earlier that your case was that there had been a

breach of a contract between St George and your

client arising out of the deed.

MR JACKSON:  Yes.

McHUGH J:  Then that really takes you back to annexure A to

the deed, does it not? You were taking it to what was, in effect, an independent offer and it may be

that the St George offer does not, itself,

completely comply with the earlier -

MR JACKSON:  Your Honour, I was going to page 543 because it

saves trying to put two documents together, but the

conditions in 543 are simply the ones that are
attached to the deed as the 87 form, as amended by

clause 9 of the deed. It is just a convenient

place to read them, that is all. What I was

seeking to say, Your Honour, was this: at

page 543, in condition 7 - I might say,

Your Honour, condition 7 is the same within its

Cachia(2) 11 10/12/93

original form in both documents actually - at

letter F to G, the second sentence, it says:

If the minimum subscription is not reached within one month after the making of the offer or within such longer period as the Board may determine, the Board of the Society shall have the option -

of doing various things. Now, Your Honours, a

question which arises - if I could just interpolate

this - is what is the ambit the board's power to

decide to accept subscriptions at a level less than

the minimum? As a matter of construction of the

document, we would seek to say that that means that

the board, if it does accept subscriptions at a

level less, has to accept the number that have

actually been made. It cannot just say we will

accept some lower - - -

McHUGH J: This is quite a different argument from what was

put in the courts below because in the courts below

your client was putting it - the discretion. They

had a discretion but it had to be exercised in the

way it had been exercised back in 1987. Now, you

are saying there is no discretion. There is no

discretion in relation to individual entitlements.

The only discretion is to accept a minimum offer

below the specified figure.

MR JACKSON: Well, Your Honour, or to do the other things

specified there, that is, to cancel the issue - - -

McHUGH J:	To cancel.
MR JACKSON:	Refund the moneys, extend the time or accept

less.

McHUGH J: But once they exercise the discretion to accept a

smaller minimum subscription, then your argument,

as I just understood it now, is that the board had

no discretion as to what happens in relation to the

shares.

MR JACKSON:  No, it had to accept the number applied for,

though less than the minimum.

McHUGH J: Correct me if I am wrong, I do not think that is

the way your client has put it up until today.

MR JACKSON:  I do not think the precise issue has ever had

to be determined.

McHUGH J:  I know it has not. Your client has rather put it

on the basis, has he not, that the discretion had

to be exercised in accordance with the way it was

exercised back in 1987.

Cachia(2) 12 10/12/93

MR JACKSON:  Yes. Well, the claim has been perhaps too

great in that department but, Your Honour, this is

a lesser part, as it were. So, Your Honour, I

interpolate that and the point that I am seeking to

make is this, Your Honours, that it was then a

breach of the agreement constituted by the deed, to
put it shortly, for them to say to him, within the

period of a month, before its expiration, what

appears at page 552 and that is that they will only

accept minimum entitlements. That is why I was

saying, Your Honours, it would then become a

question of the damage that he could

demonstrate - - -

McHUGH J:  Does your client accept that repudiation? Did he

take any steps after the 14th? Did he put money

into the account after that date of that letter?

MR JACKSON:	Not for the 4 million shares.
McHUGH J:	I know, but -

MR JACKSON:  - - - for the lesser sum. He protested about

it but, in any event, nothing happened. In fact, the decision that was made was one to issue only minimum entitlements to those who applied. So, it

becomes then a question, Your Honour, whether he

can demonstrate that the course that would have

been taken, in effect, would have been one where he

was, by the end of the appropriate time, able to

put in an application which was the right number of

shares.

DEANE J:  Mr Jackson, I have somehow fallen behind. I am

obviously missing something. When you look at what

you have set out on page 4, it says, the offer is

to be for 100 shares in St George:

for each $500 or part thereof of withdrawable

shares -

now, that obviously means you must have the

withdrawable shares at the time of the offer.

MR JACKSON:	Yes.
DEANE J:	How many withdrawable shares did your client have

at the time of the offer?

MR JACKSON: At the time, enough to get him 1300. There was

a mistake made showing 1800, but 1300 was the - to

get 1300.

DEANE J: Well then, why is that not the end of it?

MR JACKSON:  Because it goes beyond that, Your Honour, and

that is that the deed that was arrived at was one

Cachia(2) 13 10/12/93

that provided for a particular offer to be made to

members.

DEANE J: What, it departed from an offer of shares for

withdrawable shares?

MR JACKSON: It made that the minimum.

DEANE J:	I do not follow.
MR JACKSON:	If I could just take Your Honour for a moment

to page 542, paragraph 3.	You will see the offer.
It was:

Permanent shares are offered ..... initially on

a specified allocation basis and then in

accordance with applications for extra

permanent shares.

Your Honour, if I could just take you back to

page 540, you will see about letters E to I the

matter Your Honour referred to before but, going

back to the deed itself which appears relevantly at

page 515, you will see at O that one of the

provisions that was the subject of the agreement

was in the terms of paragraph 3 to which I have

just referred.

DEANE J:  I see, so what you say is the effect of all this

is that you could not only accept the offer in

relation to your withdrawable shares, but you could

make an offer for additional shares for cash?

MR JACKSON:  Yes. Your Honour, where it appears to come

from is that Your Honour will see that in

paragraph 5 at page 4 Your Honour took me to before

it refers to:

an opportunity to apply for permanent shares
on the same basis as was offered to members of

St George Building Society last year.

DEANE J: Thank you.
MR JACKSON:	Your Honours, that offer to St George is at

page 526 at paragraph 3 in the left column at H,

and the relevant part of that is similar to the

part to which I have just referred.

Your Honours, the only other thing we would

wish to say is that the question which arises in

the end is whether the case is one to which the
principles in Trident General Insurance are
applicable in giving rise to an ability on the part

of the person not a party to a contract to sue upon

it. Your Honours, we have mentioned section 36C of

the Conveyancing Act 1930.

Cachia(2) 14 10/12/93

McHUGH J: It does not apply, does it?

MR JACKSON:  Your Honour, that is the question. What I mean

to say about that is that in section 36C is a

provision which had been given a more muted

application in the courts of the States than its

terms would appear to indicate. What we would be

seeking to say was that if the Court were to

consider the application of the Trident principle to a case such as the present, it really would be

difficult for the Court not to at least have in

mind the potential operation of section 36C. In

saying that, I am conscious of the fact that it was

not referred to in the case in the courts below.

McHUGH J: If I can just ask you this because I am afraid I

still do not understand at the moment the way you

seek to put your case. If your client did not comply with condition 5, how can the letter of

14 November constitute a repudiation?

MR JACKSON: Because, Your Honour, it conveyed that they

were not prepared to give more than the number of

shares that was the minimum number of shares and if

that was so, Your Honour, it was, in effect, a

breach of the agreement.

McHUGH J: But how had your client accepted this agreement?

It seems to me you are arguing in a circle.

Assuming that the deed of transfer constituted an

offer to your client. Let that be assumed, and it

is a large assumption, but let it be accepted.

What act of your client accepted that offer so that

St George became bound by it?

MR JACKSON:  Your Honour, what we would submit first is that

he had the ability to sue on that agreement from

the time when it was made between the two

societies.

McHUGH J:  But how could that be? He was not a party to the

contract

MR JACKSON:  No, he was not, Your Honour, but he was a

person or he is one of the class of persons for

whose benefit clause 9 of that agreement was made.
An offer of this kind had been made and Your Honour
would appreciate that there was a general meeting

of the transferor Society called which approved, by

a special resolution, the entry into the transfer

of engagements. Now, one of the matters put before the members of the Society in deciding to arrive at that conclusion was the proposal that was put by

the respondent. Now, in doing that, Your Honour,

what happened was, we would submit, that the offer, if ultimately accepted by the two societies and the

agreement entered into, became one which, in

Cachia(2) 15 10/12/93

accordance with the Trident principles, was one

that could be sued on by the persons having the

benefit of condition 9.

BRENNAN J:	And what was the obligation under that contract?
MR JACKSON:	The obligation, Your Honour, was to make an

offer capable of acceptance in the form that was

attached to it.

BRENNAN J:	Was that performed?
MR JACKSON:	I am sorry, Your Honour, I should have said,

secondly, to do that and to comply with its terms.

The first was done and the second was not.

McHUGH J: Yes, but the letter of 14 November was answering

something that did not have anything to do with the

offer. It was just a counter offer. It was not in

accordance with the terms of the offer made by

St George because condition 5 had not been complied with.

MR JACKSON:	Your Honour, there was no obligation on the applicant to apply for the shares by the 14th.	He
was entitled to apply for the shares at any time
while the offer was open, any time that was

provided for by condition 7. At the time when that

document was sent to him, the letter of

14 November, that time had not expired.

BRENNAN J: Well then, you would say that he accepted that

repudiation.

MR JACKSON: Well, Your Honour, he is suing for damages

because of the breach and so he was, at the time,

seeking to obtain funds which would enable him to

complete the transaction in respect of the

4.3 million shares. He did not go ahead to seek

the balance of those funds. Instead, what funds he

had he put in and it was only enough to get him the

300,000.

McHUGH J: Well then, he did not accept the repudiation.

MR JACKSON:	Your Honour, he did.
McHUGH J:	He put further funds in, so he did not take any

notice of the letter of 14 October.

MR JACKSON: Well, he did, Your Honour, with respect. What

he had to do, in a sense, was to mitigate the

damage he had suffered by reason of it and that is

why he put in the extra money.	Your Honour, they
continued - - -

Cachia(2) 16 10/12/93

McHUGH J: In any event,.it is reading a lot into the letter

of 14 November to regard that as a repudiation of

their obligations under the deed, is it not?

MR JACKSON:  Your Honour, one can only take the words which

say and confirm that, "We will only accept an

application for the 1800 permanent shares you are

entitled to." It is terse, but it is pretty

clear.Your Honour, those are the submissions I wish

to make.

DEANE J:  Mr Jackson, did any of the courts below deal with

your argument that the claim was for repudiation as

distinct from failure to allot shares in accordance

with applications that had been lodged?

MR JACKSON:  Your Honour, not, I think, in terms,

because - - -

DEANE J: It does not seem to have been appreciated by

Their Honours that it was put that it did not matter whether there had not been any applications

at all. Your client was suing for repudiation

regardless of application.

MR JACKSON:  Your Honour he seemed - I do not want to use

the vernacular - to be headed off at the pass, as

it were, by the findings as to there being no

contract, but Your Honour will see - - -

DEANE J:  The way Justice Cole puts it, at page 1 to 2, has

no hint of anything other than an application for
shares which led to a contract to allot those

shares and there was breach of that contract.

MR JACKSON: Well, Your Honour, could I say for example, if

one looks at page 2 at line 35 - he is speaking of

tort, of course - he alleges:

the directors of State had a duty to the

plaintiff to ensure that "arrangements" made

with St George encompassing the subsequent

issue of shares to him were implemented.

Your Honour, if one looks at the bottom of page 1,

the top of page 2, what His Honour seems to be

saying is to express the case in a very round way,

in a very short way. Your Honour, I do not know

that I can take it really beyond that, but it is

clear that there is a reference I think somewhere

in His Honour.:s summary of what took place of the

letter of 14 November.

Yes, he refers to that at page 20, line 30,

and Your Honour will see at page 24, about line 40,

His Honour says:

Cachia(2) 17 10/12/93

Presumably the plaintiff alleges it created a separate contract with each Member and the

defendant. The contract was breached by

St George rejecting the plaintiff's
application for shares in excess of 1,800 and
by failing to offer the plaintiff the

opportunity to apply for shares -

et cetera.

McHUGH J: Could I just ask you this: in a letter to your

client dated 14 November which you rely on as the

repudiation, on any view, when do you say you

accepted this repudiation?

MR JACKSON:  Your Honour, I suppose shortly afterwards, in a

sense, because what Your Honour will see is that if

you look at page 555, the second-last page where he

was asking in the second-last paragraph for an

assurance that - - -

McHUGH J: That letter was an answer to the letter of

15 November, and the letter of 15 November which is

at 553 is a complete answer to any case of

repudiation, is it not, because it says:

we are unable to help you with this finance

and at the same time draw your attention to

the fact that any allotment of shares over and
above the entitlement is at the discretion of
the Board when all applications have been

received.

That letter was dated 15 November.

MR JACKSON:  Your Honour, could I say with respect,

repudiation comes from the court in a sense.	The
use of the term is simply - - -

McHUGH J: Well, anticipatory repudiation.

MR JACKSON:  - - - claiming damages for breach of the

agreement.

McHUGH J: What is the breach of the agreement? What is

their breach?

MR JACKSON:  The first breach, and the principal one, was in

saying that no further shares will be offered.

McHUGH J: That was never - it could .only have been an

anticipatory breach, and yet the very next day

there is a letter of 15 November which is in

accordance with the contractual offer.

MR JACKSON:  Your Honour, the 15th - - -

Cachia(2) 18 10/12/93

McHUGH J: It recognizes that your client can get shares

over and above the entitlement.

MR JACKSON:  Your Honour, all one has is really a situation

where, on the 14th - and, Your Honour, the time of

arrival of that letter does not appear in the

immediate material. It may not have been - - -

McHUGH J: Except your client answered it in the letter of

19 November.

MR JACKSON:  Your Honour, you will see that at stage, in the

second paragraph of that letter, he refers to the

letter of 14 November.

McHUGH J:  I know, but the letter of 15 November is from the

managing director of the company. You rely on a

statement in an earlier letter from the Executive

Management - Management Reporting.

MR JACKSON:  Your Honour, we write a letter to the managing

director on the 19th referring to this letter and

all that comes back then is that there has been the

restriction, and that is in the next document, and

the restriction is one that, in our submission, was

not one authorized by the terms to the agreement.

McHUGH J: Well, accepting in your favour that was the case,

what is your answer to the letter of 15 November?

MR JACKSON:  Your Honour, the letter of 15 November is one

that first, it does not appear that that came to us

before the letter of 14th. The second thing about

it is that although there was the reference in that

letter of the 15th to the fact that the board

would, in effect, consider the position, what one

could draw from the whole of the material is the board, in fact, was not intending and it did not intend, and did not, in fact, allot any shares

beyond the minimum.

BRENNAN J:  The Court will adjourn briefly in order to

pursue the course which it will take.

AT 11.29 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.39 AM:

MR JACKSON:  Your Honours, could I say just one further

thing and that is another possibility of dealing

with the matter if the Court were of the view that

Cachia(2) 19 10/12/93

it involved a ~omplication that was not possible to

resolve today, might be for the Court to consider
hearing the application further at the time of

hearing a substantive appeal instanter, if the

Court were minded to deal with it that way.

BRENNAN J:  We need not trouble you, Mr Campbell.

It is generally not appropriate for this Court to permit an applicant to have two opportunities to

argue his case, the second on an application to
reopen an earlier decision to refuse special leave.

In this case the applicant, who had chosen to

represent himself on the earlier application,

failed to advance the basis on which counsel now

seeks to rely. Nor are we persuaded that the basis

which counsel now seeks to advance was squarely

raised in the courts below. In so far as the

applicant relies on the issues addressed in the

judgments in the courts below, the prospects of the

applicant's success on that basis are not

sufficient to justify a grant of special leave.

It is not appropriate to reopen the earlier

decision of this Court to refuse special leave,

assuming that there is jurisdiction to reopen.

Accordingly, the application is refused.

MR CAMPBELL:	I would ask for costs, Your Honours.
BRENNAN J:	It will be refused with costs .

•

AT 11.41 AM THE MATTER WAS ADJOURNED SINE DIE

Cachia(2) 20 10/12/93