Dovuro Pty Ltd v Wilkins & Ors

[2005] HCATrans 614

[2005] HCATrans 614

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S357 of 2002

B e t w e e n -

DOVURO PTY LIMITED

Appellant

and

ROBERT JOHN WILKINS AND EILEEN JOYCE WILKINS AND TREVOR IAN WILKINS AND SUSAN CAROLINE WILKINS AND LOCHIEL NOMINEES PTY LIMITED AS TRUSTEE FOR THE R & E WILKINS FAMILY TRUST ALL T/AS R & E WILKINS

First Respondents

CROP MARKETING NEW ZEALAND SOCIETY LIMITED

Second Respondent

QBE INSURANCE (INTERNATIONAL) LIMITED

Third Respondent

Summons

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 24 AUGUST 2005, AT 9.59 AM

Copyright in the High Court of Australia

__________________

MR A.D.B. FOX:   If the Court pleases, I appear on behalf of the former solicitors for Dovuro.  (instructed by Griffith Hack)

HIS HONOUR:   Yes.

MR FOX:   We do not hold instructions, as you have probably noted from the correspondence, for about two years.  I do not know that Mr Moore is here yet, your Honour.  The matter had been marked not before 10.15 am.

HIS HONOUR:   Had it?  Yes, I see it is not before 10.15.  Your application to withdraw is completely separate from the other application.

MR FOX:   It is, your Honour.

HIS HONOUR:   So, Mr Fox, I will order that Dovuro’s former solicitor now be removed from the record as from today.

MR FOX:   Thank you, your Honour.  I might just wait till Mr Moore arrives and pass the information to him so that he is aware.

HIS HONOUR:   Yes.

AT 10.00 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.43 AM:

MR A.S. MOORE:   If it please the Court, I appear for the third respondent who has filed the summons of 19 August.  (instructed by Wotton & Kearney)

HIS HONOUR:   Yes.

MR MOORE:   I would like to read that and also the affidavit ‑ ‑ ‑

HIS HONOUR:   Before you do, the Deputy Registrar of the High Court has been informed by solicitors for the first respondents that they do not intend to appear on behalf of their clients at the hearing and by the solicitors for the second respondent that the second respondent has been removed from the relevant New Zealand register and that the solicitors do not have instructions to act for the second respondent in this matter.

Mr Moore, you seek an order that the sum paid into Court on 3 March 2003 on behalf of the appellant be repaid to the third respondent, QBE?

MR MOORE:   Yes, your Honour.

HIS HONOUR:   And you move on the affidavit of yourself filed on 28 July 2005?

MR MOORE:   Yes, your Honour.

HIS HONOUR:   I have read that affidavit.  I should say that earlier I gave Mr Fox leave to withdraw from the record of the proceedings.  What is the situation with Dovuro?  They appear to have ‑ ‑ ‑

MR MOORE:   They have a receiver and ‑ ‑ ‑

HIS HONOUR:   Lawler Partners withdrew Griffith Hack’s instructions.  Do you know what the current situation is as between Dovuro and its receiver?

MR MOORE:   Yes, your Honour.  …..principal, Mr Bill Tapp, has appointed Phil Harris of Harris Solicitors ‑ ‑ ‑

HIS HONOUR:   That is the Tamworth solicitor?

MR MOORE:   The Tamworth solicitors.  They are recovering the Federal Court courts on behalf of Dovuro currently.  There is some correspondence annexed to my affidavit where we had a dialogue with Phil Harris for six months and then we are advised he did not have instructions to respond to us in relation to this application.  So they do have solicitors but there are no instructions in relation to this matter.

HIS HONOUR:   There is a fax of yours of 13 May I think where you put Harris Solicitors on notice that you would seek an order, among other things, that they pay the second and third respondents’ costs of the matter.  Given their lack of co‑operation – that is so, is it not?

MR MOORE:   Yes, your Honour.

HIS HONOUR:   There is no opposition.  I have read the documents and it seems inevitable that, given the result of the case, the sum of $45,600 must be repaid to the third respondent.  I will also make the other orders, so there is no need to hear you further, Mr Moore.

I order that:

1.        The sum of $45,600 paid into Court on 3 March 2003 on behalf of the appellant pursuant to an order made by me on 24 February 2003 as security for the first respondents’ costs of the proceedings in the High Court of Australia be repaid to the third respondent;

2.        I order the appellant to pay the third respondent’s costs of this summons.

You sought an order I think originally that Dovuro pay the second and third respondents’ costs, but it seems pointless in respect of the second respondent.

MR MOORE:   Yes, your Honour.

HIS HONOUR:   Order 2 is that the appellant pay the third respondent’s costs of the summons.  Is there anything further sought?

MR MOORE:   That is all, thank you, your Honour.

HIS HONOUR:   Very well.  The Court will now adjourn.

AT 10.48 AM THE MATTER WAS CONCLUDED