CGU Insurance Limited v One.Tel Limited (In Liquidation) & Ors

[2010] HCATrans 33

[2010] HCATrans 033

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney     No S294 of 2009

B e t w e e n -

CGU INSURANCE LIMITED ACN 004 478 371

Applicant

and

ONE.TEL LIMITED (IN LIQUIDATION) (ACN 068 193 153)

First Respondent

DAVID PATRICK WATSON

Second Respondent

JOHN HUYSHE GREAVES

Third Respondent

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Fourth Respondent

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 FEBRUARY 2010, AT 9.38 AM

Copyright in the High Court of Australia

__________________

MR A.W. STREET, SC:   May it please the Court, I appear for the applicant with my learned friend, MR E.G. ROMANIUK.  (instructed by Colin Biggers & Paisley Solicitors)

MR P. KULEVSKI:   May it please, I appear for the first respondent.  (instructed by Clayton Utz Lawyers)

HIS HONOUR:   There is a submitting appearance from the second and fourth respondents, and I think there is a letter that there will be no appearance from the third.  Is that right?

MR STREET:   Yes, your Honour.  We thought we had better cure the record, your Honour.  We do actually have an affidavit that encloses a letter from a solicitor on behalf of Greaves acknowledging that he acts for him, that he has received service and that he wishes to take no steps.  Could I seek leave just to file that affidavit in Court if I may, your Honour, and I apologise for the fact that it was not filed earlier.

MR KULEVSKI:   I have no objection, your Honour.

HIS HONOUR:   What date is it?

MR STREET:   The date of the communication is 22 February, your Honour.  If I can take your Honour straight to KBB-6. 

HIS HONOUR:   Is there any objection to this, Mr Kulevski?

MR KULEVSKI:   No objection, your Honour.

HIS HONOUR:   Very well.  The affidavit of Keith Brendan Bethlehem sworn 22 February 2010 may be filed in Court.

MR STREET:   Your Honour, it annexes the correspondence and annexes a grant of probate.  We seek the orders in the summons subject to this amendment, your Honour.  Could your Honour in relation to order 1, we seek it under Part 21, rule 21.06.3 ‑ ‑ ‑

HIS HONOUR:   Those provisions apply in the original jurisdiction, do they not?

MR STREET:   Your Honour, I think there is a provision that seeks to apply them to the Court generally in Part – in Part 1, rule 1.02, I think it is intended to apply generally and when one goes to Part 2, rule 2.01, that extends it ‑ ‑ ‑

HIS HONOUR:   There is no proceeding yet because you do not have special leave.

MR STREET:   Your Honour, I think if one goes to rule ‑ ‑ ‑

HIS HONOUR:   Rule 40.02 – “Chapter 2 shall be applied”, et cetera.

MR STREET:   Yes, your Honour.

HIS HONOUR:   All right.  Now, this is a summons filed on 8 February?

MR STREET:   Yes, your Honour.

HIS HONOUR:   Are there any problems with this, Mr Kulevski?  I do not think so.

MR KULEVSKI:   We consent to the summons, your Honour.

HIS HONOUR:   I make orders in terms of 1, 2 and 3 of the summons filed on 8 February.  Costs of the summons will be costs of the leave application.

MR STREET:   No costs are being sought against the second, third or fourth respondents.

HIS HONOUR:   Right.  Costs of the summons will be costs as between the applicant and the first respondent on the special leave application.  Thank you, gentlemen.

AT 9.42 AM THE MATTER WAS ADJOURNED