Ken Morgan Motors Pty Ltd & Ors v Toyota Motor Corporation Australia Limited

[1994] HCATrans 247

~	\
~	',:-~J"

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml27 of 1993

B e t w e e n -

KEN MORGAN MOTORS PTY LTD,
KEN MORGAN MOTORS (MOORABBIN)

PTY LTD, KEN MORGAN FINANCE PTY LTD, KEN MORGAN INVESTMENTS PTY LTD, LPW MOTORS PTY LTD,

AMAYVALE DEVELOPMENTS PTY LTD,

ADWHITE PTY LTD, SECOND
LENBOURNE PTY LTD, L&K PUBLIC
RELATIONS & MANAGEMENT
CONSULTANTS PTY LTD, CLANSTONE

PTY LTD, KENNETH WILLIAM

MORGAN, ZDENKA MARIE MORGAN,

THOMAS LINARDOS, ANTHONY ALAN

WHITE and MICHAEL TERRENCE

REILLY

Applicants

and

TOYOTA MOTOR CORPORATION

AUSTRALIA LIMITED

First Respondent

and

Ken 11/3/94

TOYOTA FINANCE AUSTRALIA

LIMITED

Second Respondent

Application for special leave
to appeal

MASON CJ TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 1994, AT 9.33 AM

Copyright in the High Court of Australia

MR N.J. YOUNG, OC:  May it please the Court, I appear with

my learned friend, MR G.S. CLARKE, for the

applicants, other than the eighth, tenth, fifteenth

and seventeenth applicants. (instructed by Minter

Ellison Morris)

MR S.P. CHARLES, OC: If Your Honours please, I appear with

MR P.R. HAYES, OC and MR M.R. PEARCE for the

respondents. (instructed by Clayton Utz and

instructed by Corrs Chambers Westgarth)

MASON CJ:	Mr Young.
MR YOUNG:	May it please the Court, there have been some

late developments overnight and this morning that

may have the consequence that this application does

not proceed at all. The outcome of those

discussions will be known finally within a very
short period of time. Therefore, we join in asking

the Court for an indulgence: could this matter be

stood down for some time? We would expect to know

the final position within a very short period of

time and, in all probability, by the end of the

second matter in the list.

There is a further matter I would ask the

Court: if it is at all possible, could the matter

simply be stood down one place, as it were, in the	list. That is because there are some particular
difficulties that my learned friend, Mr Charles,
has.

MASON CJ:  It can stand down one place in the list and you

can then let us know what the situation is,

Mr Young.

MR YOUNG: If Your Honour please, yes.

AT 9.36 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

Ken	2	11/3/94
UPON RESUMING AT 9.57 AM:

MR YOUNG:  If the Court pleases, we would ask the Court if

the matter could be stood down further. It is

likely that the matter will not proceed but it has

not been finalized as yet.

MASON CJ:	Do you want to stand it down until after lunch?
MR YOUNG:	If we could have leave to mention the matter

shortly before the luncheon adjournment if that

would suit the Court.

MASON CJ:	Yes.
TOOHEY J:	What is the position, Mr Young, of the applicants

for whom you do not appear?

MR YOUNG: Notices of discontinuance have already been filed

in respect of those applicants.

MASON CJ:	Then they are not before the Court?
MR YOUNG:	That is so, yes.
MASON CJ:	You can have leave to mention this before we

adjourn at lunch-time.

MR YOUNG: If Your Honour pleases.

AT 9.59 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.41 PM:

MASON CJ: Yes, Mr Young?
MR YOUNG:	May it please the Court, the application has been

resolved. Notices of discontinuance are to be or
have been filed on behalf of each of the

applicants. The only order we seek from the Court

is an order alleviating what would otherwise be the

consequences of Order 69A rule 10(2). That rule

provides that:

Unless the Court or a Justice, or the

Registrar, otherwise orders -

Ken 11/3/94

certain cost consequences follow the filing of a

notice of discontinuance. We seek, by consent, an

order that there be no order as to the costs of the

application.

MASON CJ:  By consent, there shall be no order as to the

costs of the application. We do not need to make

any order about the disposition of the application

because that is, in effect, brought about by the

filing of the notice of discontinuance.

MR YOUNG: If the Court pleases.

MASON CJ:  The Court will now adjourn and will resume at

2.15.

AT 12.42 PM THE MATTER WAS ADJOURNED SINE DIE

Ken 11/3/94