Maher & Anor v Commonwealth Bank of Australia & Anor

[2008] HCATrans 350

[2008] HCATrans 350

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M54 of 2008

B e t w e e n -

DENNIS MAHER

First Applicant

ELIZABETH JOANNA MARIA MAHER

Second Applicant

and

COMMONWEALTH BANK OF AUSTRALIA

First Respondent

REGISTRAR OF TITLES

Second Respondent

Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 7 OCTOBER 2008, AT 9.32 AM

Copyright in the High Court of Australia

MR D. MAHER appeared in person.

MR R.D. SHEPHERD:   If the Court pleases, I appear on behalf of the first respondent.  (instructed by AJ Mullumby)

HER HONOUR:   You are appearing for yourself, Mr Maher?

MR MAHER:   Yes, your Honour, I appear in person.  I rang Ms Musolino a little earlier to say that Ms McKinnon would not be appearing.  I had mentioned that something else had turned up and it appeared that she declined – because of the lateness of getting the brief to her, she declined to appear.

HER HONOUR:   Yes, thank you for that information.  I appreciate that.  Where are we, Mr Shepherd?  May I address that to you?  My recollection is on the last occasion the matter was adjourned on the basis that it was in contemplation that some proper notice might be given to the Trustee in Bankruptcy in relation to these proceedings.  Are you able to inform the Court of any steps which have been taken?

MR SHEPHERD:   Specifically, as I understand it, Mr Maher has not served Mr Pattison with the material.  I stand to be corrected on that.

HER HONOUR:   I do not know if it is for Mr Maher to do it, is it?

MR SHEPHERD:   Yes.

HER HONOUR:   It would not be the respondent in the proceedings.

MR SHEPHERD:   Exactly.  In addition, the adjournment was sought in order that legal advice be obtained.  There has been ample time for that to occur, in my submission.  So the position would appear to be that Mr Maher, who is presently a bankrupt, cannot proceed in his application and that the second applicant has a solicitor on the record, Mr Nelson, who is in Court today.  I do not know whether he will seek to advance anything on her behalf. 

HER HONOUR:   This is Mrs Maher?

MR SHEPHERD:   Correct, your Honour.

HER HONOUR:   Is there anybody in Court appearing for Mrs Maher?

MR SHEPHERD:   Save for Mr Nelson sitting in Court, I am unaware.  Accordingly, I would seek that the application be dismissed.  There has been no application to amend it.  It is hopeless at this stage.  There is no utility in making the orders.  I can further articulate why that is so, your Honour, if that would assist. 

HER HONOUR:   Can I dismiss the application in the period between which the trustee ought to be put on notice and making an election in relation to the matter?  Is not the appropriate order possibly that the matter is stayed until further order?

MR SHEPHERD:   At present the application is, in my submission, stayed in any event without an election having been made. 

HER HONOUR:   In a sense, that is right, I think.  The only order available for the Court would be to stay until further order, which puts it in litigation limbo, in a sense, but it does mean that it reserves any rights Mr and Mrs Maher might wish to pursue under section 178 of the Bankruptcy Act, for argument’s sake, just by way of example.

MR SHEPHERD:   Yes.  She, of course, is not a bankrupt so, accordingly, I would ask that her application be dismissed with costs.

HER HONOUR:   The point about that, I think, is that there is authority for the proposition that a co‑plaintiff in the single action, the result will be that action would be stayed as well.  So, in a sense, it comes under the umbrella with the co‑plaintiff bankrupt.  The cautious and appropriate order may be that in relation to the entire action, it is stayed until further order with no other orders being made which permits Mr Maher to take whatever action he wishes to in relation to the Trustee in Bankruptcy, but also does not create any problems in relation to res judicata or applications which the Mahers may wish to make in relation to the trustee on behalf of Mr Maher.  That is all I am concerned about, Mr Shepherd, in a sense.

MR SHEPHERD:   Yes, your Honour.

HER HONOUR:   I will hear from Mr Maher in relation to that because I imagine he may resist dismissal on the basis that his options ought to be kept open.  For example, the 28 days in relation to notice to the trustee, if proper notice has been given, would not have run since the last mention date.

MR SHEPHERD:   Correct.

HER HONOUR:   It is that sort of possibility that concerns me.

MR SHEPHERD:   Yes, your Honour.

HER HONOUR:   Would it be convenient then if I hear from Mr Maher in relation to the possible orders which ought to be made?

MR SHEPHERD:   Yes, your Honour.

MR MAHER:   Your Honour, Mr Pattison, the trustee spoke with the solicitors for the Commonwealth Bank last Wednesday on the basis that he had not had a chance to speak with me or discuss with me the matter, so he could not at that stage elect to go one way or the other.

HER HONOUR:   You have heard what I just said, Mr Maher, and my inclination is to stay the matter until further order.  Obviously the matter can be brought on on an application on three days notice, perhaps, or even less notice if the circumstances dictate it as much, and then it is a matter for you or whoever to sort the matter out with the trustee before you can proceed.  I dare say you do understand that the action commenced by you is stayed until the trustee makes an election as to whether to continue or not under the Bankruptcy Act.

MR MAHER:   Yes.

HER HONOUR:   So an order staying the proceedings until further order does no more than reiterate, in a sense, the statutory position under the Bankruptcy Act, but it does preserve your position for the time being.

MR MAHER:   Thank you.

HER HONOUR:   Very well.  Mr Shepherd, those are the orders I am inclined to make and I am inclined to do that with no order as to costs for the moment, just because of the complication about the Trustee in Bankruptcy. 

The order I make is:

The proceedings are stayed until further order.

Nothing further?

MR SHEPHERD:   In respect of costs, your Honour, would it be appropriate just to reserve them, there not really being a determination of whether they should be paid or not?

HER HONOUR:   Yes, very well.  I will reserve the costs of today.

MR SHEPHERD:   If your Honour pleases.

HER HONOUR:   Thank you, Mr Shepherd. 

Adjourn the Court.

AT 9.40 AM THE MATTER WAS CONCLUDED