Immer No 145 Pty Limited v The Uniting Church in Australia Property Trust (NSW)

[1992] HCATrans 124

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl39 of 1991

B e t w e e n -

IMMER NO 145 PTY LIMITED

Applicant

and

THE UNITING CHURCH IN AUSTRALIA

PROPERTY TRUST (NSW)

Respondent

Application for a stay

MASON CJ

(In Chambers)

Immer(2) 1 24/4/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 APRIL 1992, AT 10.16 AM

Copyright in the High Court of Australia

MR D.P. ROBINSON: If Your Honour pleases, I appear for the

appellant. (instructed by Baker & McKenzie)

MR B.W. RAYMENT:  May it please Your Honour, I appear with

my learned friend, MR K.P. SMARK, for the

respondent. (instructed by Clayton Utz)

MR ROBINSON:  Your Honour, this is an application for a stay

of the Court of Appeal's orders pending the

determination by the High Court of this appeal.

There is an application on before you, there are

two affidavits on both sides and I seek to file a

third in Court this morning, but it may not be

necessary for Your Honour to deliberate on the

matter. Pending some further instructions, we may

be able to come to an arrangement between

ourselves.

HIS HONOUR: 

About what?

MR ROBINSON: 

About a stay in the event that the appellant

takes the first available date and there may be a
debate about the appellant's ability and his
willingness to give security for costs of the
appeal.

HIS HONOUR:  Yes. I should not have thought that my time

ought to be taken up with a debate about a

permanent stay and security for costs of the

appeal. I would have thought that if the parties displayed some common sense they ought to be able

to arrive at some accommodation in relation to

that. I am astonished to think that the parties

should think that I would give serious

consideration to some of the suggestions that are

made in the affidavits that have been placed before

me.

So in the discussions you have, you might bear

that in mind. But I will adjourn now and you can

let me know when you want me to sit again.

AT 10.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.40 AM:

HIS HONOUR:	Yes, Mr Robinson.
MR ROBINSON:	Your Honour, the parties have been unable to

resolve the matter. May I say at the outset that

the appellant, Immer, will take any date awarded by

Immer(2) 2 24/4/92

this Court for its appeal and it offers to provide
security in an amount fixed by the Registrar for

the costs of the appeal. Apparently those two

concessions are not sufficient to meet the

respondent's desires - - -

HIS HONOUR:  Mr Robinson, I need not hear you further. Yes,

Mr Rayment.

MR RAYMENT:  Your Honour, so far as the evidence is

concerned that was filed in the case we tell

Your Honour we object to one sentence in Mr Salgo's

affidavit, which is paragraph 12, the second sentence, "In the event 11 •

HIS HONOUR:  Why do you object to it?

MR RAYMENT: First of all, it is not a statement of fact, in

our respectful submission. We are not sure what it

means. There is no reason, in our respectful

submission, to think that the settlement of this

transaction would cause any special prejudice to
the applicant, especially because the money, if

paid, can be - - -

HIS HONOUR:	I propose to disregard the sentence. All I can say is, Mr Rayment, a dispute about that sentence
seems to me to be typical of the disputes that have arisen between the legal representatives for the parties in this case.
MR RAYMENT:	Your Honour, the point of it, in our respectful

submission, is this: could I refer Your Honour to

what we have put forward in Mr Denham's affidavit

of 23 April 1992.	Does Your Honour have that
affidavit?

HIS HONOUR:	Yes.
MR RAYMENT:	From it, if I can just pick the eyes from it,

the Reverend Denham, in paragraph 6 of the

affidavit says that what has happened here is that

since mid-1989 there has been no work done on the

site, "which presently comprises a hole in the ground. 11

The applicant company, Your Honour, as appears

from the search, particularly at page 10 - - -

HIS HONOUR:  You mean there are doubts about the liquidity

of the applicant company?

MR RAYMENT:  Yes, Your Honour, there are, in our respectful

submission. It is a $2 company; its assets - - -

HIS HONOUR:  It may be unable to complete this agreement.

Immer(2) 3 24/4/92

MR RAY~NT:  Yes, Your Honour, and its position and that of

any holding company which may provide it with money

may, for all we know, deteriorate before this Court

gives judgment.

HIS HONOUR:  Yes, well?

MR RAYMENT: In our respectful submission, there being no

reason - either, Your Honour, they will complete

the transaction, if no stay is granted, in which

case my clients have put evidence on that they are

in a position to repay any money paid to them with

interest - - -

HIS HONOUR: But that is a completely impractical solution,

Mr Rayment. If the agreement is completed, the

subject-matter of the appeal disappears. This

Court would not proceed to consider and determine this appeal if the agreement were completed before

the appeal came on for hearing.

MR RAYMENT:  Your Honour, in our respectful submission,

there would be no reason why the Court could not go

ahead with the appeal and deal with it, and

if - - -

HIS HONOUR:  But then the agreement would have been

completed.

MR RAYMENT:  Yes, but Your Honour would order, if it was

completed - it is commonplace, is it not,

Your Honour, for moneys to change hands and

transactions to be completed, pending the hearing

of an appeal. If an appeal is upheld, the Court

would order the undoing of the transaction ordered

to be completed by the court's order below.

HIS HONOUR:  It may be commonplace; it is not commonplace as

far as this Court is concerned.

MR RAYMENT:  I must say I have not come armed with examples

of that but, in principle, if an order below is

wrong, the court would not only order its undoing

but order repayment of any moneys paid with

interest, and there are, indeed, reported cases

where such orders have been made for the repayment

of moneys with interest that were paid under an

order set aside.

HIS HONOUR: That may be so, Mr Rayment, but I cannot

conceive in this Court that where this Court grants

special leave to appeal in relation to a

transaction that stands in a particular way, that

this Court would readily contemplate that the

character of that transaction would change and then

there would be a dispute about the purchase money.

Immer(2) 4 24/4/92

MR RAYMENT:  Your Honour, it must be a regular position,

must it not, if specific performance is ordered by

a court at first instance and the agreement

completed, the Court of Appeal deals with it - - -

HIS HONOUR:  But surely in cases like this the agreement is

not completed. Surely in cases of this kind the

transaction remains in statue quo until the rights

of the parties are finally determined.

MR RAYMENT:  We would submit not, Your Honour. We would

submit unless there was some prejudice arising from
the settlement of the transaction which was shown

by the applicant - for example, suppose the council

would not transfer it back if it were completed, or

something of that nature - - -

HIS HONOUR:  But, for example, there must be prejudice. Why

should the appellant be compelled to complete the

agreement if in fact it transpires that he is not

bound to complete the agreement? One reason may be

that the appellant has not got the money to

complete.

MR RAYMENT:  In which case the effect of refusal of the stay

would merely be to enable my client to be further

advanced in seeking to enforce the position and if

the appeal is - - -

HIS HONOUR:  But we have to proceed on the assumption,

Mr Rayment, that the appellant has an arguable case

in support of his appeal.

MR RAYMENT:	Yes, Your Honour.
HIS HONOUR:	And that that arguable case may result in a

declaration by the Court that this contract is

validly rescinded. Now, if that possibility

exists, it must be a prejudice to the appellant to

bring about a situation in which he is bound to

complete the contract, pending the determination of

the appeal.

MR RAYMENT:  We would respectfully submit not, Your Honour.

HIS HONOUR: It must be. It is undeniable.

MR RAYMENT:  I do not want to take Your Honour's time with

it unduly, but we just put this, that we would

respectfully submit that one approaches a case like

this, conformably with longstanding authority, on

the basis that - - -

HIS HONOUR:  You talk about longstanding doctrine, you had

better provide me with authority to support that

and to support the proposition that there is no

prejudice to a party in the position of the

Immer(2) 24/4/92

appellant by compelling him to complete, in

circumstances where the Court may well hold that he

is under no obligation to complete.

MR RAYMENT:  Your Honour, McBride v Sandland, (1918)

25 CLR 369, was a case in which it was held that

conformably with Privy Council authority one

essential, on an application of this nature, is

that a serious injury would result to the

petitioner unless a stay was granted, it not being

sufficient that the judgment in question might be

wrong. And of course one has the principle that

the fruits of the judgment are not to be disturbed

merely because an appeal is lodged and, of course,

the High Court Rules of their own force provide

that unless the Court or a Justice otherwise

orders, an appeal shall not operate as a stay of

proceedings.

So it is necessary, in the usual case, in our

respectful submission, for an applicant to show

more than that it would be inconvenient to him if

he complied with the orders; he would need to show

that in some way the subj.ect-matter of the case

might disappear or the ability to prosecute the

appeal be rendered nugatory. Something must take

the matter out of the general rule. And where you

have a solvent recipient of purchase money, no

prejudice in our respectful submission, not capable of being cured by an order for interest would, as a matter of law, be incurred.

HIS HONOUR:  I take it, all the way through in this case, a

stay - no, that would not be right, because you

were the appellant in the Court of Appeal.

MR RAYMENT:  We lost at first instance and only at Court of

Appeal level was there an order for specific

performance made. That was the first time on which

we obtained such an order. Of course, there was a

stay pending the hearing of the special leave

application by Mr Justice Mahoney.

HIS HONOUR:  Yes.

MR RAYMENT: But, Your Honour, we would respectfully submit

that nothing has been shown here which would

constitute sufficient prejudice within the meaning

of the rule.

HIS HONOUR:  Mr Rayment, you had better tell me what is it

that you rely upon by way of facts in order to

constitute this case of no prejudice.

MR RAYMENT:  Your Honour, it is first, that which appears in

Miss Newlinds' affidavit of 23 April 1992. She

Immer(2) 6 24/4/92

says, in paragraph 2, that she has made inquiries

from the solicitor for the city council - - -

HIS HONOUR:  But that does not get you very far, that

statement, does it, because it is not binding on

the council and, I mean, it is just a pious hope

really.

MR RAYMENT:  Could I tender a letter. In our respectful

submission, it can be assumed to be correct.	I
tender a letter, if Your Honour pleases - - -

HIS HONOUR:  I am not raising any question as to the

statement, the accuracy of the conversation between

the deponent and Mr Odbert.

MR RAYMENT:  No, but Mr Odbert's employee has now obtained

instructions on the matter and -

HIS HONOUR:  Has he, I see, yes. Can I see the letter?

MR RAYMENT:	I tender a letter of 23 April 1992.
HIS HONOUR:	What does TFS mean actually?

MR RAYMENT: Transferable floor space.

HIS HONOUR: I see. Yes.

MR RAYMENT:  Your Honour, next, that as appears from the

same affidavit, the holding company of this

applicant was delisted in February last year and

the last available published accounts for the

company are 30 June 1990. Next, that their

building consent appears to have lapsed, as appears

from paragraph 4 of the same affidavit, on

information and belief, because they have not

substantially commenced within 12 months.

Then, so far as the Reverend Denham says, it

is simply a hole in the ground which has remained

our respectful submission, inspire no confidence	in that condition since 1989. Their accounts, in
that funds are available to them. Their assets
appear to be tax losses, as appears from what is on page 19, and as appears from page 20, they describe
non-current assets as being inventories, which
apparently is the cost of the work done until work
stopped - - -

HIS HONOUR: This is page 20 of this affidavit in booklet 4?

MR RAYMENT:  Yes, Your Honour. I have picked out - page 19

is the profit and loss statement and Your Honour

sees they made, in terms of profit, a loss this

year of $195 and nothing last year, but took in an

income tax benefit in each year to produce a paper

Immer(2) 24/4/92

figure of $8.7 million apparently carried forward

tax losses, as far as one can see, described as a

benefit, in brackets.

Then, if one turns the page to page 20, one

finds that their assets are listed as the cost of construction to date, their building approval now having apparently lapsed. The inventories are

explained at page 22 as being the construction
costs to date. Next, there was profit by the

applicant at one stage, the guarantee of the

holding company, for completion of this transaction

as a condition of my client agreeing to a stay.

That appears at page 87. It is a letter of

12 November last year.	They will not give a bank
guarantee but:

we have been instructed that our client is

prepared to procure a guarantee from its
parent company, Leda Limited, guaranteeing the
obligations of Irnrner as they are determined by

the Master and/or the High Court.

Your Honour, that offer or that proposal was

withdrawn, as appears from page 92. Today the

applicant does not proffer any guarantee from the

holding company. Finally, from the

affidavits - - -

HIS HONOUR:	What is your attitude to a guarantee by - - -
MR RAYMENT:	Your Honour, it would be much better for us

than what is now offered, which is nothing.

Indeed, Your Honour, subject to the applicant

procuring a guarantee of its holding companies,

Leda Holdings Limited and Leda Limited, in a form

to be agreed between the parties, or failing

agreement -

HIS HONOUR: That is Leda Holdings Limited and Leda

Limited -

MR RAYMENT:  Sorry Leda Holdings Pty Ltd and Leda Limited -

subject to the applicant undertaking to procure a

guarantee in a form to be agreed between the

parties, or failing agreement, to be settled by the

Registrar, in respect of payment by the appellant of the purchase money and any interest or damages in respect of late settlement which the appellant

may be ordered to pay, then - - -

HIS HONOUR:	You would agree to a stay.
MR RAYMENT:	The terms otherwise proposed by the other side are acceptable.
HIS HONOUR:	Now, what other matters, Mr Rayment?
Irnrner(2)	24/4/92

MR RAYMENT: Finally, Your Honour, there was a request made,

as Your Honour sees at page 97, for information
about that inventory figure, and whether it had

been supported by any evaluation report. That is

where the correspondence remains. Page 98, they

say they will obtain instructions in relation to

that and ask why the question was asked. That

question was answered at page 99 and then no

further information is provided.

HIS HONOUR: One other question, Mr Rayment. From your point

of view, what amount would you nominate as

appropriate security for costs?

MR RAYMENT: 

$20,000, Your Honour, being a figure which one

would imagine would be less than taxed costs at the
end of the day.

HIS HONOUR: 

$20,000 strikes me, prima facie, as an

eminently reasonable figure. Yes, Mr Robinson.

MR ROBINSON: Firstly, I would not disagree with $20,000 for

security for costs. Your Honour, may I file in

Court an affidavit of Anthony Phillip Spencer of

23 April 1992. It is a very short affidavit.

HIS HONOUR:	Have you shown that to Mr Rayment?
MR ROBINSON:	Yes, I have. May I read that first? The

annexures are the only relevant matters. The first

annexure is the associate's record of proceedings.

That deals with the contested proceedings before

the parties in the Court of Appeal and says the

order made by Mr Justice Mahoney is that:

If leave granted application for stay to be

made to that Court.

Meaning to the High Court. That is why the matter

is here and not before Mr Justice Mahoney.

The second exhibit is a facsimile from the respondent's solicitors to the appellant's

solicitors, the last paragraph of which is

material. The writer says:

In the meantime, we reiterate that our client

is prepared to refrain from insistence upon

completion of the Agreement in accordance with

the orders of the Court of Appeal provided

that your client prosecutes the appeal

expeditiously by agreeing to the 22 June 1992

hearing date for the appeal.

Now, Your Honour, that was a letter of

22 April and on 23 April, with some reluctance, and

that is for dealing with the convenience of senior

Immer(2) 9 24/4/92

counsel, that point is no longer pressed.	The
third paragraph- - - -

HIS HONOUR:	What do you mean, that point is no longer pressed? You mean you are no longer pressing
insistence upon - - -
MR ROBINSON:	Meeting the convenience of the senior counsel.

Your Honour, we have done that as - we have just

decided to do that. It is not the usual practice,

as we understand it in this Court, but for the

benefit of a stay we will take the earliest

possible date.

HIS HONOUR:  I do not know about the usual practice in this

Court. This Court has no practice in terms of

ensuring that parties have or can continue to
retain the services of their counsel for an appeal.

I know that the Registrar does what he can,

consistently with the interests of the Court, to
enable that to occur.

MR ROBINSON: 

It was only that practice that I was referring

to and the Registrar, apparently, does a very good
job, from what I am told by counsel who regularly

appear in this Court.

HIS HONOUR: 

I shall pass that compliment on to him.

MR ROBINSON: 

Your Honour, relevantly, though, Mr Salgo on

behalf of the appellant says that he wishes to take

up that offer which seems to be unequivocal - that

is an offer by the respondent's solicitors on

22 April that if the appellant was to take 22 June,

then there would be no problem about a stay, and

that is done. The case, as it is unfolding before

Your Honour today, appears to go into different

matters and that is that - - -

HIS HONOUR:  Of course it does, and I must say that is what

has attracted my criticism, that in a sense I think
both parties have altered their stance here.	It is

particularly irritating to find that the time of

this Court is taken up in dealing with a matter

where, in my opinion, the legal representatives of

the parties have not acted sensibly and

practically. My criticism goes to both sides

equally in relation to this matter.

But the fact is that you brought this on your

own head, in a sense. But your point now is, as I

understand it, that because the respondent has

indicated that if a particular condition was

satisfied they would not oppose a permanent stay,

and belatedly, you are prepared to offer compliance

with that condition, they should be held to it.

Immer(2) 10 24/4/92

MR ROBINSON:  It would be a significant matter in the

exercise of Your Honour's discretion. It may not

be a perfect offer and acceptance, but it would be

a significant matter.

HIS HONOUR:  I suppose you say you are going further now by

offering security, which they did not ask for then.

MR ROBINSON:  In some correspondence they did, Your Honour.

HIS HONOUR: Earlier?

MR ROBINSON:  I am not sure - may I just find where that is,

Your Honour. I am sure that it was asked for. It

was asked for very belatedly and we are prepared to

comply with that, Your Honour. One matter that

Mr Rayrnent has not drawn your attention to is the

fact that he has security in this sense, that he

has the air rights, which are valuable - indeed,

the price of those air rights is some $2 million.

He has always secured -

HIS HONOUR:  Are they still as - I would have thought that

the market value of air rights in this city has

probably deteriorated significantly since this

contract was entered into.

MR ROBINSON: There is no evidence of that, Your Honour, and

Mr Rayrnent has not put any evidence on of that.	I
understand it is a very volatile market, but
Your Honour might be correct. I think it is

general knowledge there has been a down turn in the

building industry but to what extent that general

down turn would affect the trading in air rights is

another question. But Mr Rayrnent's client has

those air rights and they will stand as security,

just as in the normal vendor/purchaser case the

vendor still has his property, and always has that,

in the relevant sense, as security.

Your Honour, may I then read the two other

affidavits which Your Honour may have glanced at.

They are Mr Salgo of 22 April 1992. I do not know

if Your Honour has glanced at that. That sets out

a bit of the history of the proceedings.

HIS HONOUR:	Yes, I have looked at this.
MR ROBINSON:	The most relevant exhibit is AMS-5 where the

respondent's solicitors say that, on page 2, after

fixing a date for completion of the agreement - I

do not know if Your Honour has that. That is

page 2 of a facsimile dated 15 April.

HIS HONOUR:  Yes.

Irnmer(2) 11 24/4/92

MR ROBINSON:  Page 1 sets out an appointment and some

interest calculations for settlement. The last

paragraph on page 2 of that facsimile says:

We should add that our client's insistence on completion of the Agreement as outlined above

is the direct result of your client's apparent failure to prosecute the appeal expeditiously.

In particular, we note that your client is not

prepared to accept the hearing date offered in
the week commencing 22 June 1992 because of
the unavailability of Mr Conti, QC at that

time.

And then there is a reference to the Registrar

indicating a telephone conversation - - -

HIS HONOUR:  Quite obviously you could not regard that

attitude on the part of your client as a failure to

prosecute the appeal expeditiously.	I do not know
that Mr Rayment would contend otherwise.	The fact

is that the Registrar offers, from time to time,

earlier positions in a list in a city away from the

city of origin of a case. But the offer is, as I

understand it, basically conditional upon both

parties agreeing to have the case transferred away

from the city of origin or at least from Canberra

to a different city. So I disregard that

suggestion that there has been a failure to

prosecute the appeal expeditiously.

MR ROBINSON: But, Your Honour, it gives the motivation as

to why it would otherwise not be appropriate for a

stay. There is no insistence on any other term or

condition. There is just the assertion that by not
taking the Brisbane sittings there is a delay in
the prosecution of the matter. Therefore, we are

appointing a date for settlement of the matter.

The inference is - the very strong inference is

that if you were to have taken the June sittings,

we would have gone along with the stay - an
unconditional stay, Your Honour.	We seem to be

only now debating what the terms of any stay would

be. It seems, at the last moment, indeed the very

last moment, there are now terms as to security

imposed in the last day or so. This matter was
debated, as Your Honour would suspect, in the Court

of Appeal after a contested hearing - - -

HIS HONOUR: Before Mr Justice Mahoney?

MR ROBINSON: Before Mr Justice Mahoney and

Mr Justice Mahoney made the order he did, and he

made the order he did after a fully contested

hearing where both parties called evidence and

Mr Justice Mahoney made the order until the special

leave application was determined. There has been

Immer(2) 12 24/4/92

no relevant change, Your Honour, since then to any

of the parties' positions. As Mr Rayment points

out, Irnmer is dormant and is not trading.

May I just refer you to a page in the

affidavit of Mr Denham, page 93. If Your Honour

looks at the second paragraph at page 93, it is a

letter from Baker & McKenzie to the respondent's

solicitors:

("Irnmeru) does not trade. It is the holder of

a leased property situated at 197-199

Castlereach Street Sydney ("the Catholic Club

site"). Work on the Catholic Club site is

presently suspended, and because of this,

Irnmer's financial position remains static.

IrnmQer is prepared to provide an undertaking
that, until the proceedings before the High
Court are finalized, it will not trade or
incur any liability other than as may be
required to maintain and hold its interest in

the Catholic Club site, honour the obligations

which it has undertaken by lease and in

relation to the conduct of proceedings

instituted against it with respect - - -

HIS HONOUR:	Is it prepared to offer that undertaking?
MR ROBINSON:	It does, to this Court at this moment, until

the determination of the appeal in this Court.

HIS HONOUR:  Yes. What about the guarantee that was

formerly offered?

MR ROBINSON: That is no longer offered, Your Honour.

HIS HONOUR: Is there any reason why it is no longer

offered?

MR ROBINSON:  I would have to get instructions on that,

Your Honour.

HIS HONOUR:  Perhaps you might obtain instructions. When I

ask you to obtain instructions, I mean maybe you

will not get instructions. In other words, I am

not insisting that you obtain instructions, but I

give you the opportunity to obtain them.

MR ROBINSON:  I can tell Your Honour that no guarantee by

Leda is proffered to the Court at this time. The

undertaking to the Court that Irnmer will not do

anything to change its financial position is

offered to the Court, in terms of that paragraph

which I read out to Your Honour.

HIS HONOUR:  But that undertaking is confined to Irnmer.

Irnmer(2) 13 24/4/92

MR ROBINSON: That is right, Your Honour.

HIS HONOUR: It does not go to Leda.

MR ROBINSON:  No, Your Honour, that is right. There is no

undertaking by Leda. Your Honour, that is the

evidence I propose to rely on.

Your Honour, there is no case that I can find

where, in situations where the appellant has a

right of appeal, he has been forced to complete the

conveyance. The status quo is preserved in this

sense, that the subject-matter of the litigation,

so far as the appellant sees it, is its right not

to complete the contract and not to have to borrow

money or procure money from some source which it

would have to do given its balance sheet.

Mr Rayment is correct to say that such assets

as it has, future tax benefits and the value of a
construction contract which, when one reads the

notes, is not readily transferable into money nor

is it able to be borrowed against because that

contract is itself charged by the documents

referred to in Mr Denham's affidavit.

If the completion of the transaction was to

take place prior to the determination by the High those air rights in the sense of realize them or resell them unless at the loss of any order that

this High Court might make to reverse the

transaction.

Your Honour, the respondent has the benefit

already of interest running on the settlement

figures. That was a condition of the stay imposed

by Mr Justice Mahoney and that would compensate

them for a settlement which would occur at a later

time rather than an earlier time. There is a

promise to repay the money by the respondent to the

appellant if the transaction were to be reversed.

There is no evidence of any capacity to do so.

What we do know about the capacity of the

respondent is that it is in debt to $3.6 million.

It has the chance to obtain -

HIS HONOUR:  But these church property trusts are the

Church's relationship with Mammon, are they not? I

have never really understood that there is any

doubt about the liquidity or the solvency of church

property trusts and, if I may say so, going back to

my old experience which, admittedly, is decades

old, less doubt perhaps about this particular

property trust than any other.

Immer(2) 14 24/4/92

MR ROBINSON: That might be so, Your Honour, but the

respondent has not taken the trouble to put on any

evidence of that.

HIS HONOUR:  I must say, for my part, in the absence of

evidence, I am going to assume that the respondent

has unquestioned capacity to repay the money in the

event that that becomes a live question. Again,
Mr Robinson, I think this is typical of the
attitude taken by the legal representatives in this

case. It is a desertion of reality to put that

submission to me.

I mean, it is the sort of submission that may go down in a police court and even then I have some

doubt about it, but it is not a submission that is

going to receive any attention from me at all.

MR ROBINSON:  I will not persist in it, Your Honour, but I

only say it arises from the evidence which is put
before Your Honour and, coupled with the promise to
repay, which is apparently the central focus of the

case made by the respondent, it would be normally

incumbent upon that person to support the promise.

HIS HONOUR:  Yes. But, Mr Robinson, if the parties really

gave their attention to this offer as a serious

means of resolving the difficulty that now arises,

I have no doubt that you would be insisting that

any moneys you paid over were to be held in some

sort of special account and trust.

MR ROBINSON:  I was going to put that second submission,

Your Honour, because what inferential - - -

HIS HONOUR: It is fairly obvious, is it not, that that

would be the way of dealing with the problem? That

is the customary way of dealing with this sort of

problem. What is the point of putting a submission

to me that the respondent may not have the capacity

to repay the money?

MR ROBINSON:  Your Honour, with respect, that is not the way

in which the evidence inferentially is given by the

Reverend Denham. If I may put it this way: he

says, "We owe $3.6 million. Interest is

accumulating at a certain amount per day." He then

makes reference to the fact that $2.4 million or

thereabouts is owed on this conveyance. One

assumes that he wishes to place the $2.4 million

against the $3.6 million.

HIS HONOUR: Well, maybe, but really it is on the margins of

this case, Mr Robinson.

MR ROBINSON:  Your Honour, the only other matter that I can

come back to is that it is true that the air rights

Immer(2) 15 24/4/92

may have deteriorated in their value but that is

security which the respondent holds in respect of

this which has not been valued. Those are my

submissions.

HIS HONOUR:  Yes. Now, do you want to say anything in

reply, Mr Rayrnent, because I cut Mr Robinson short

early on and that may have deprived you of an

opportunity of responding to some matters that he

has raised?

MR RAYMENT:  Yes, thank you, Your Honour. Your Honour, in

our respectful submission, the flurry of activity

which occurred before the filing of this

application in which there were some attempts to

resolve it ought not to govern its outcome, that is

to say, the proposal to have an early hearing date

and to have the matter disposed of in that way was

of importance to my clients and they wished to

achieve it. Having failed to do so, in our

respectful submission, whatever they have said

before the application is filed ought not to govern

the outcome of the application which ought to be

dealt with on its merits.

HIS HONOUR:  I suppose you can put that submission but,

after all, if the matter were to be heard in June -

and I understand the date is still available -

then, it seems to me, the lapse of time is

inconsiderable.

MR RAYMENT:  It is less and one has to add to it only the

time in which this Court reserves judgment.

HIS HONOUR:  Yes, that is true. But, after all, it is not a

particularly difficult case, I should have thought,

Mr Rayrnent.

MR RAYMENT:	No, I accept that.
HIS HONOUR:	When I say, "it is not a particularly difficult

case", it is a case that is in small compass and,

after all, it has one or two narrow issues in it.

MR RAYMENT:	Yes, I accept that. But one would never know how long a judgment might take in this Court.
HIS HONOUR:	No, no, that is true. That is granted.
MR RAYMENT:	Your Honour, we submit ·that the key matter here

is this: we submit that one would not make an

order having the effect of granting a stay if

prejudice might be caused to the respondent who,

after all, at the moment enjoys an order for

specific performance made by the Court of Appeal

which has not been disturbed which cannot be

compensated for by some appropriate order.

Immer(2) 16 24/4/92

Now, Your Honour, if it be an order that the

moneys be kept separate, my clients are content

with that. But that which is most significant, in

our respectful submission, is the refusal of the

applicant to proffer the guarantee of its holding

companies and persisted in, Your Honour having

given the opportunity to have an explanation for

it, that offer not being taken up. We would

respectfully submit that that is a material

circumstance with respect to the fate of this

application and it ought to lead to it being

dismissed or, at any rate, the order being made
conditional upon such an undertaking being
proffered, and failing its being proffered within

several days, we respectful submit the application

should be refused.

HIS HONOUR:  Yes. Thank you, Mr Rayment. Now, I will

stand this matter over until 10.15 on Monday

morning and I will give my decision then.	The
Court will adjourn until then.

AT 11.24 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 27 APRIL 1992

Immer(2) 17 24/4/92