Cross Country Realty Pty Ltd v Peebles; Cross v Peebles; Cross v Peebles

[2015] HCATrans 278

[2015] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B8 of 2007

B e t w e e n -

CROSS COUNTRY REALTY PTY LTD

Applicant

and

DAVID LINDSAY PEEBLES

Respondent

Office of the Registry
  Brisbane   No B9 of 2007

B e t w e e n -

KELLIE LEE-ANN CROSS

Applicant

and

DAVID LINDSAY PEEBLES

Respondent

Office of the Registry
  Brisbane   No B10 of 2007

B e t w e e n -

RONALD MALCOLM CROSS

Applicant

and

DAVID LINDSAY PEEBLES

Respondent

Summonses for leave to take a step

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 OCTOBER 2015, AT 10.16 AM

Copyright in the High Court of Australia

____________________

MR B.C. CATER:   If the Court pleases, I appear for the applicant, David Lindsay Peebles, in all three matters before the Court.  (instructed by Crown Law (Qld))

HER HONOUR:   Yes, thank you, Mr Cater.  Now, I am reasonably familiar with the background to this summons.  So this is the three summonses filed on 18 May 2015 in matters B8, B9 and B10 of 2007.

MR CATER:   That is so.

HER HONOUR:   Because they are filed in those proceedings, you are actually appearing for the respondents?

MR CATER:   Yes.

HER HONOUR:   It is a bit confusing.  It is your application.

MR CATER:   It is confusing, yes.

HER HONOUR:   All right.  Now, you are seeking leave pursuant to rule 4.03.2 to file and serve a Bill of Costs on each of the applicants in the original proceedings.

MR CATER:   That is so, your Honour.

HER HONOUR:   The Bill of Costs relates to orders for costs made in the special leave which they brought and which was refused.

MR CATER:   It was refused – and I have copies of those orders here.

HER HONOUR:   All right.  Now, there was some difficulty with service in these matters, as I understand it.

MR CATER:   There was initial difficulty with personal service of Mr Ronald Cross.  The other two parties, Kellie Cross and Cross Country Realty Pty Ltd, were served personally.  That is detailed in the affidavit of service of Matthew Edward Levis.

HER HONOUR:   But technically the service was required at the address for service of each of them and the problem was that it no longer existed because the firm of solicitors had ceased to exist.

MR CATER:   Yes, that is so – Ryan and Bosscher.

HER HONOUR:   That is why you undertook personal service.

MR CATER:   Yes, that is so.

HER HONOUR:   But you did that without the order or direction of the Court.  Do you need a direction from the Court that compliance with the Rules in relation to service be dispensed with?

MR CATER:   That would be appreciated, your Honour, yes.

HER HONOUR:   I will make that order.  Now, the basis for the application for leave – it is required because it is well out of time.

MR CATER:   That is so, your Honour.

HER HONOUR:   Rule 4.03.2 refers to where three or more years have elapsed, but the reason for that is that the proceedings themselves took so long.

MR CATER:   Yes, the proceedings were returned to the Southport Magistrates Court.  I have filed an affidavit under my hand dated 13 May 2015 and in that affidavit from pages 3 to 8 the chronology of the matter has been detailed.  The matter has returned to the Southport Magistrates Court.  Proceedings for various avenues of appeal to the Court of Appeal were returned back to the Southport Magistrates Court.  The corporate defendant, at that stage, entered a plea of guilty and Mr Ronald Cross was found guilty and Kellie Cross was found not guilty.  Both parties appealed, separately, to the District Court.  Those appeals were heard in late 2014 and no further appeals have been entertained since that date.  So in almost a year from the last avenue of appeal no further steps have been taken and negotiations have been had between the parties as to reaching a global settlement figure as both parties have costs owing to them from the various appeal processes.

HER HONOUR:   They have obviously not appeared – there is no appearance been entered in relation to this summons.

MR CATER:   That is so.

HER HONOUR:   The question, I suppose, is because of the length of time is there any difficulty created by leave being given at this point – any prejudice?

MR CATER:   There is no prejudice to the applicants.  They have been certainly made aware of these proceedings and they have not put on the record any evidence as to how they would be prejudiced and the respondent, Mr Peebles, still has an enforceable right to costs under the orders made on 21 June 2007.

HER HONOUR:   I suppose it is not really like a case where you have problems with witnesses’ recollections.  It is dry dust costs, is it not?

MR CATER:   Yes.

HER HONOUR:   That should all be capable of being ascertained.

MR CATER:   Yes, and a draft Bill of Costs has been prepared by the firm, Hickey & Garrett, and that draft Bill of Costs was attached to the material that was served on all applicants, so my client intends to, with the leave of this Court, file and serve that Bill of Costs and have the taxation officer tax costs.

HER HONOUR:   All right, well, I am prepared to make an order in each matter granting leave to file and serve a Bill of Costs on each of the applicants.  Would you have a draft order prepared with the two orders that I have made and have it faxed through to my associate for signature?

MR CATER:   Yes, I can.  Thank you, your Honour.

HER HONOUR:   Perhaps later today.  Thank you, Mr Cater.  The Court will now adjourn.

AT 10.22 AM THE MATTER WAS ADJOURNED