Maher v National Australia Bank Ltd

[1995] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M14 of 1994

B e t w e e n -

ELIZABETH JOANNE MARIA MAHER

Applicant

and

NATIONAL AUSTRALIA BANK LTD

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 JUNE 1995, AT 2.33 PM

Copyright in the High Court of Australia

MR R.C. WELLS:   If it please the Court, I appear on behalf of the applicant.  (instructed by Katherine Moorhouse-Perks).  Your Honours, I have a limited brief in this matter and that is simply to make application to the Court, effectively, for an order adjourning the hearing of this special leave application.

MR S.W. KAYE, QC:   May it please the Court, I appear with my learned friend, MS M.L. WARREN, for the respondent.  (instructed by Russell Kennedy).  We oppose the foreshadowed application.

BRENNAN CJ:   Mr Wells.

MR WELLS:   Your Honours, informal notice was given to the respondents yesterday that the applicant wished to have the hearing of this application adjourned.   That informal notice was formalised to some extent by a notice of motion being filed in the Melbourne Registry yesterday whereby an order was sought that the hearing of this special leave application be adjourned to the next sitting of the Court in Melbourne for special leave applications.

That application has not formally been served upon the respondent although a copy of the sealed application after it was issued was faxed to the solicitors for the respondent and they are certainly aware of it. 

GUMMOW J:   You have now an affidavit, have you not?

MR WELLS:   Yes, I have an affidavit and I will hand up copies of that to the Court.  Again, your Honours, copies of the affidavit were provided to my learned friends this morning.  At that time, my learned friend, Mr Kaye, indicated that he accepted same not by way of service but merely that he would read same.  I now understand that he has instructions to accept service of same on the basis that an affidavit that has been prepared by the respondent was accepted by myself by way of service and that agreement has been put into place.   It is a short affidavit of three pages sworn by my instructing solicitor.  There are two exhibits to it which are simply just two letters that were written to the Court.   It is the affidavit of Katherine Moorhouse-Perks sworn today, 9 June 1995.  Does the Court wish me to read the affidavit?

BRENNAN CJ:   No, we can read it for ourselves, Mr Wells.

MR WELLS:   As your Honours will have seen, the basis of the application is somewhat unusual insofar as what the applicant seeks is further time to enter into negotiations with the respondent.  The application is opposed.

The position is as appears from the affidavit, that counsel who were briefed to argue this application are no longer briefed in this matter.  The basis upon which I accepted this brief was that I had indicated and it is understood by my instructing solicitor and the client that in the event that the Court were not disposed to grant the application for the adjournment, then I would be in a position to do no more than to refer the Court to the written submissions in support of the application for leave to appeal that have already been filed but I am not in a position to support those submissions by any further oral argument.

However, in my submission, your Honours, there is no prejudice suffered by the respondent by this matter being adjourned.  There would obviously be cost consequences that would have to be borne by my client and she is aware of those.

DAWSON J:   The only purpose of the adjournment would be to explore further settlement, is that right?

MR WELLS:   That is correct, your Honour.  It is my client’s belief - and one might perhaps say, well, one can’t negotiate unilaterally - but it is my client’s belief that there is a reasonable prospect that the matter may be resolved, although that has not happened to date, and she has instructed me to indicate to the Court that she intends to make further proposals to the respondent that may result in the Court not being troubled by this application ultimately.

GUMMOW J:   But this application for leave was filed in February last year.

MR WELLS:   Yes, that is correct, your Honour.  I can take the matter no further at present, your Honours.

BRENNAN CJ:   Yes, thank you.  We need not trouble you on this part of the application, Mr Kaye.

When applications for special leave to appeal are made to this Court and the application books are prepared, the listing of the matter is not left in the hands of the parties.  It is a matter for the Court to ensure the efficient disposition of its business.  The convenience of the parties and their counsel may be taken into account but those are not determinative considerations.  In the circumstances of this case, the application for an adjournment is refused.

MR WELLS:   If the Court pleases.

BRENNAN CJ:   Now, you wish to advance the written submissions, is that so?

MR WELLS:   Yes, your Honour.  I simply appear on behalf of the applicant for leave to appeal and I simply rely on the submissions that have been filed with the Court.

BRENNAN CJ:   Yes.  Unless you wish to support the application, we need not call on you in reply.

MR KAYE:   Thank you.

BRENNAN CJ:   The applicant seeks to agitate questions concerning a title to property purchased from a joint bank account, resulting trusts and a remedial constructive trust.  The applicant faces at least two obstacles:  the first is that the relevant principles as to resulting and constructive trusts have been expounded in earlier decisions of this Court; the second was pinpointed in the Victorian Full Court as follows by Mr Justice Ormiston:

The principal difficulty raised by the appeal was in analysing the inadequate evidence given on behalf of -

Mrs Maher and Mr Maher -

as to the circumstances in which the properties purportedly mortgaged to -

National Australia Bank Ltd -

were acquired in the name of Mr Maher and in particular as to the circumstances which might give rise to an interest, equitable or otherwise, in.....

Mrs Maher.

This paucity of evidence is all the more critical if litigation were to be taken to a further stage.  Special leave to appeal is accordingly refused.

MR KAYE:   I seek an order for costs, your Honour.

BRENNAN CJ:   Do you have anything to say to that, Mr Wells?

MR WELLS:   Yes, I cannot address that issue, your Honours.

BRENNAN CJ:   Special leave is refused with costs.

The Court will adjourn until 2.15 pm in Brisbane on Monday, 19 June.

AT 2.44 PM THE MATTER WAS CONCLUDED