Kiama Development Co and Anor v Wilcox and Ors

[1999] HCATrans 483

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S102 of 1999

B e t w e e n -

KIAMA DEVELOPMENT CO PTY LTD and JOHN DESMOND FRENCH

Applicants

and

GRAHAM MILTON WILCOX
ROSANNA WILCOX
JOHN WILLIAM SPICER
BIRGITTA SPICER

Respondents

For Mention

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 15 DECEMBER 1999, AT 9.59 AM

Copyright in the High Court of Australia

MR D. KNAGGS:  I appear for the applicant.  (of Douglas Knaggs)

MR G.R. WAUGH:  May it please the Court, I appear for the respondents.  (instructed by Martins Solicitors)

HIS HONOUR:   Just give me a moment while I have a look at the information I have about this matter.  How many applicants are there, Mr Knaggs?

MR KNAGGS:   Three applicants, your Honour.

HIS HONOUR:   And you appear for them all?

MR KNAGGS:   I am sorry, your Honour, I should say two applicants.  I appear for Mr French.  The other applicant is in liquidation and I have general authority from the liquidator to appear on the procedural aspect of the matter, but not beyond that.  So I do not know whether he will take over control and discontinue it before hearing, in which case the only applicant would be Mr French.

HIS HONOUR:   It appears that the documents that are outstanding in this matter are the formal orders made by Justice Hulme, the formal orders made by the Court of Appeal of New South Wales and the reasons for judgment of Justice Hulme. 

MR KNAGGS:   Your Honour, may I just update what your Honour just said.

HIS HONOUR:   Yes.

MR KNAGGS:   I have now filed this morning the reasons of Mr Justice Hulme and the formal order of Mr Justice Hulme in the Equity Division.  I have still to file the formal orders of the Court of Appeal which I think exist but I have not been able to track them down yet.  This is a judgment way back in 1997.

HIS HONOUR:   If you do not file those formal orders by 4 January the application will be deemed abandoned.

MR KNAGGS:   I understand that, your Honour.  I do not have any application.  I only have an apology to the Court.

HIS HONOUR:   All right.  Is there anything that you want to say, Mr Waugh?

MR WAUGH:   Your Honour, just if we could possibly clear up the position of the company applicant, as to whether or not it is going to prosecute the application.  Mr Knaggs says he is not sure at this stage, but I do not know whether the Court can make a direction that some evidence be filed or something obtained from the liquidator of the company about that.

HIS HONOUR:   Does that matter, if the other applicant prosecutes the application?

MR WAUGH:   The other applicant was the party to the lease, your Honour.  He was a director of the company.  The party to the lease which is said to be illegal, or the sublease, was the company.  So there might be some question of the individual's standing to argue that point.

HIS HONOUR:   Mr Knaggs, is there any reason why your client should not be ordered to pay the costs of today's proceedings?

MR KNAGGS:   No, your Honour.

HIS HONOUR:   I will note that there is continuing default in one respect but that other documents called for have been filed.  I also note that unless the matter in respect of which there is continuing default has been cured by 1 January, the applications will be deemed to be abandoned.  Apart from that, I make no further order except that the applicants must pay the respondents' costs of today's proceedings.  I certify for counsel.

MR WENDLER:   Did your Honour say 1 January or 4 January?

HIS HONOUR:   4 January - I meant 4 January.

AT 10.04 AM THE MATTER WAS CONCLUDED