Cape, W.T. v Redarb Pty Limited

[1993] FCA 35

IN TKE FEDERAL COURT OF AUSTRALIA ) NO. ACT G34 of 1992

AUSTRALIAN CAPITAL TERRITORY	1
DISTRICT REGISTRY	1
GENERUL DIVISION	)

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

(No. SC34 of 1990)

BETWEEN:	WILLIAM TIMOTHY CAPE
Appellant
AND:	REDARB PTY LIHITED
First Respondent
ROBERT JOHN Y E O W S
Second Respondent

CORM:	WILCOX, EINFELD & WHITLAM JJ
PLACE :	SYDNEY
DATE :	9 FEBRUARY 1993

F t k .

EXTEMPORE REPISONS FOR JiJDGE4ENT PHINCII-*C

Higglns J was an interlocutory order, so the leave of the

THE COURT:  The Courc is of the oplnion that the application

made on behalf of Willlam Timothy Cape for leave to appeal agalnst the declsion of Hlggins J of 28 September 1992 to dlsmlss the motion for removal of the receiver ought to be refused.

In terms of procedure the matter, is, we rhink, accurately described by counsel as a "shambles". The order of

Court is necessary for any appeal to be brought. No application for leave was made within the prescribed time. So far as the Court was concerned, as dlstlnct from what may have passed between the partles, the first indication that thls matter would be sought to be liiigated was glven today. It seems that, even as between the parties, there was no activiiy until 25 January - that is to say some two weeks before the

principal proceeding, whlch is under appeal, was due to be

heard. No notice of motion has been filed, even today. The application for leave to appeal has been made orally by counsel. Counsel has handed to us a draft notice of appeal ralsing the matters soughi to be litigated, if leave is granted. However, as has been pointed out durlng the course of discussion, this document would need revision, if leave were to be granted.

A direction was made at the call-over regarding the
progress of the princlpai matter. The call-over judge

directed that there be wrltien submissions and a time limii on

the hearing. Unaccountably, he was not informed that it was	iniended that there be a second matter heard at the same time.
If he had been so informed, he would no doubt have made directions in regard to that second matter.
The above comments provide powerful reasons why the Court ought not to allow the matter to proceed to appeal, at leasi ai this time. In particular, there may be problems in the m+zter being sarisfac~orily argued in the absence of a revlsed notice of appeal.
However, the factor which is decisive to our view is that we can see no useful purpose being served by the grant of leave and the fillng of the proposed notice of appeal. Whar: is sought is an order removing Mr Yeomans as receiver of Redarb Pty Limited. It appears that his activlty as a receiver is virtually complete. Apparently, the only steps still requiring to be taken are the filing of accounts, an act
.	which can only be done by Mx Yeomans or somebody on his
behalf, and the distribution of the proceeds of reallsation of the assets. Again, this is a matter whlch has to be attended to by Mr Yeomans. He is presently holding the assets.
It emerged from the discussion with counsel that the real reason for Mr Cape wishing to pursue the matter of removal was to influence the Regrstrar's decision regarding various items of the receiver's remuneration. But it seems to us that for the Cour~ to allow the matter to proceed for thls
purpose would be to risk misleading the Registrar. Determination of the proper remuneration and expenses of a
receiver in connection wlth hls pasr: actlvitles is, logically, a distinct matter from the question whether or not the receiver ought now to be removed. Apparently, there is some view that the Court could order that the recelver be removed
retrospectively. Thls, of course, would create its own
problems. Assuming that such an order is within power, firstly, it would cresce the anomaly thar: Nr Yeomans would be deprived of remuneration for work which he in fact perforned, which was not the subject of criticism and would have had to be done by somebody, if he was not the receiver. It seems to us that this would be unfair. Additionally, there is a real question of the implications of such an order for third partles. We bear in mind that a number of assets have been sold to such people, by Mr Yeomans eirercising his powers as receiver. It might place those third parties in a very difficult position if the Court were to make an order, the effect of which was that Mr Yeomans was not the receiver at the time when he passed title to them.
It seems to us that the net effect of the proposed appeal would be mischievous rather than useful. For those reasons the leave which has been sought should be refused. The application made to us is dismissed.

[Counsel addressed concerning costs.]

The Court is of the opinion that the proposed respondents to the appeal, represented today by Mr Comans, namely, Robert Maidment and Serendipity Pty Llmited, should have an order for their costs of the application for leave. This should be on the usual party/party basis. The Court will so order.

The Court will reserve the matter of costs of the

other parties pending determination of che appeal itself.
I certify that thls and the preceding four (4) pages
are a true copy of the Reasons for Judgment
of the Court.

Associate :

Dated: 9 $ebruary 1993

APPEARANCES

Counsel for the Applicant:	M Neil QC and
Tim Johnstone
Solicitors for the Applicant:	Crossin Barker Gosling
.Counsel for the Respondent:	P M Blscoe QC and W B Loftus
Solicitors for the Respondent:	Gallens Crowley & Chamberlain
Counsel for the Proposed
Respondents Robert Maidment and
Serendipity Pty Ltd:	P Comans
Soilcltors for the Proposed
Respondents Robert Maidment and
Serendipity Pty Ltd:	Sly and Welgail
Dates of hearing:	9 February 1993