Monas v Perpetual Trustees Victoria Limited

[2012] HCATrans 75

[2012] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S24 of 2012

B e t w e e n -

BIANKA MONAS

Applicant

and

PERPETUAL TRUSTEES VICTORIA LIMITED ACN 004 027 258

Respondent

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 22 MARCH 2012, AT 2.16 PM

Copyright in the High Court of Australia

MR S.R. DONALDSON, SC:   May it please the Court, I appear with my learned friend, MR G.A. DONNELLAN, for the applicant.  (instructed by Legal Aid Commission of NSW)

MR M.A. ASHHURST, SC:   May it please your Honour, I appear with my learned friend, MR S.B. DOCKER, for the respondent.  (instructed by Kemp Strang Lawyers)

MR DONALDSON:   Now, your Honour should have an amended summons which was filed on 15 March 2012 which seeks two orders - an order that the applicant’s application for special leave which was filed on 18 January 2012 be expedited and ‑ ‑ ‑

HER HONOUR:   Yes, I have read the material.  Could I perhaps just direct this question to Mr Ashhurst?  Mr Ashhurst, do I take it you do not oppose an order for expedition?

MR ASHHURST:   Yes, your Honour, that is correct.

HER HONOUR:   Yes, thank you.  I am inclined to make the order, Mr Donaldson.

MR DONALDSON:   May it please, your Honour.

HER HONOUR:   That would be an order for expedition until 11 May – to the special leave hearings on 11 May.  That leaves the question of stay or the undertakings offered by the respondent.

MR DONALDSON:   Yes, which is going to make the matter very short, your Honour, because the undertaking is satisfactory from our point of view. 

HER HONOUR:   Yes, I would have thought so.

MR DONALDSON:   It means that the question of a stay will have to be revisited when the special leave application is dealt with but it adequately protects the applicant in the meantime. 

HER HONOUR:   Yes.  I mean, if you were successful you would have to move rather swiftly but at least the undertaking does not confine you to the day of special leave either. 

MR DONALDSON:   No.

HER HONOUR:   Yes.  All right then.  What about the question of costs then?  Shall they just be costs in the application for special leave, I would imagine?

MR DONALDSON:   Yes, we would be content with that, your Honour.

HER HONOUR:   All right then.   Well, perhaps if I outline the orders I propose and then I will hear the parties if they suggest any amendment to them.  Upon the undertaking of the respondent that it will not execute a writ of possession until 14 May 2012, the application for special leave to appeal be set down for hearing in Sydney on Friday, 11 May 2012 and the costs of the application today be the costs in the application for special leave.  Does that seem sufficient, gentlemen?

MR DONALDSON:   I wonder, your Honour, whether in addition there ought to be an order that the application for a stay be stood over to the date of the special leave application so that it can be extended in the event that special leave is granted without the need to file an additional application.

HER HONOUR:   Well, I do not think you will find that the panel hearing special leave will upset the special leave list to hear an application for a stay.

MR DONALDSON:   No.

HER HONOUR:   I could adjourn it generally to a date to be fixed and you could simply ask then that the matter be rescheduled for, say, the Monday.

MR DONALDSON:   Yes, thank you, your Honour.

HER HONOUR:   I think that would be the appropriate way.

MR DONALDSON:   It would.  Yes, thank you, your Honour.

HER HONOUR:   What do you say, Mr Ashhurst?

MR ASHHURST:   We agree with both the orders that your Honour has outlined and with adjourning generally the stay application.

HER HONOUR:   Thank you.  The application for stay will be adjourned to a date to be fixed.  Thank you, gentlemen.

AT 2.20 PM THE MATTER WAS CONCLUDED