David Grant & Co Pty Ltd v Westpac Banking Corp- Ferndell Development v Westpac Banking

[1995] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M7of 1995

B e t w e e n -

DAVID GRANT & CO PTY LTD (Receiver Appointed)

Applicant

and

WESTPAC BANKING CORPORATION

Respondent

Office of the Registry
  Melbourne  No M8 of 1995

B e t w e e n -

FERNDELL DEVELOPMENT PTY LTD
  (formerly TOWNSHEND   DEVELOPMENT PTY LTD) (Receiver   Appointed)

Applicant

and -

WESTPAC BANKING CORPORATION

Respondent

Office of the Registry
  Melbourne  No M9 of 1995

B e t w e e n -

FENDALL FARMS PTY LTD (Receiver   Appointed)

Applicant

and

WESTPAC BANKING CORPORATION

Respondent

Applications for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 JUNE 1995, AT 2.30 PM

Copyright in the High Court of Australia

________________________

MR W.J. MARTIN, QC:   If the Court pleases, I appear with my learned friend, MR T.J. NORTH, for the applicants.  (instructed by David M. Townshend)

MR B.M. GRIFFIN:   If the Court pleases, I appear on behalf of the respondent Bank in each of the applications.  (instructed by Dunhill Madden Butler)

BRENNAN CJ:   Mr Griffin, we shall hear you first.

MR GRIFFIN:   If the Court pleases.  After careful consideration, my client has taken the view that this application falls within the parameters of section 35A of the Judiciary Act and whilst it is not proper in this sort of application, in my submission, to consent, the Bank, along with other creditors within the general community is anxious that the current dilemma created by the divergence of opinion between the Queensland Court of Appeal and the Victorian Full Court be resolved.

The present position which obtains is that in Victoria the outcome of an application is dependent upon which court the application is brought in.  If the application is brought for an extension of time in the Federal Court in Victoria, then it has the great prospect of success because the court in Victoria follows the Queensland Court of Appeal, whereas, if the application is brought in the Supreme Court of Victoria, the application is doomed to failure because of the court’s following of its own Full Court in the instant case.  That, for inter alia a national bank, creates a problem of certainty in relation to the service of statutory demands. 

We see this case as an appropriate vehicle within which the question be resolved because, amongst the legion decisions now, they can effectively be divided into two categories.  There are those which have been described as the - - -

BRENNAN CJ:   I do not think you need to push against the open door any longer, Mr Griffin.  The only question is that obviously it is a matter of some urgency to have this short but important question determined.  The earliest time at which the Court is able to give you a date would be during the sittings of the Court in Adelaide in August.  Is there any reason why it should not be listed for that occasion?

MR GRIFFIN:   From our point of view, no.

BRENNAN CJ:   From yours?

MR MARTIN:   No, and may I raise one other question, your Honours:  it seemed to us this may be a case where it was totally appropriate to have none other than written submissions because of the somewhat dry nature of the point.

BRENNAN CJ:   We will not accept merely written submissions but in so saying I would not wish to suggest that written submissions would not be appropriate to have delivered in advance with notice to the other side, preferably not less than 4 weeks before the commencement of the August sittings of the Court in Adelaide and, on that basis, it might be expected that the oral argument would be extremely short.  The Court’s listing in Adelaide will assume that that is so.  There will be a grant of special leave.

AT 2.33 PM THE MATTER WAS CONCLUDED