Morton, M. v Black, D.R

No judgment structure available for this case.

i

t . 2

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

) )

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G345 of 1985

)

GENERAL DIVISION

1

BETWEEN :

MARY MORTON

L

'

:.

~

Applicant

I

-

AND:

DONALD ROSS BLACK

Respondent

7 August 1986

,,J

EX TEMPORE REASONS FOR JUDGMENT

,.

BURCHF;TT J.

This is an application for ex parte relief made by

Mrs

Morton

and Mr Wiasak. I have

previously

dealt

with

an

application f o r interlocutory relief made by Mrs Morton in the closing stages of her part heard case against Mr Black. In that case it was intended that Mr Wiasak, who is Mrs Morton's son, would give evidence, and it is clear that he was aware of the

I

proceedings. The evidence before me indicated that

he had played

an active part in the negotiations and transactions with which those proceedings were concerned, and had either provided, or

played a significant role

in

the provision of, a sum of

$95,000

or

thereabouts.

The

proceedings

concerned

negotiations,

a

document purporting to be

a contract of purchase, and a document

2 .

I .

> r

! -

purporting to be

a mortgage, all relating to land. There had

I I

I

been a caveat lodged on behalf of Mrs Morton in order to prevent

a threatened mortgagee's sale

by Mr Black. The caveat had, prior

'9

!

I

to the matter coming before me, been ordered to be removed by the

Supreme Court

of New South Wales. Indeed the judgment of

Mr

,.

Justice Young,

which was

affirmed

on appeal by the Court

of

,

, -

,-

Appeal Division of the Supreme Court of New South Wales, was

I ,

referred to in the proceedings before me.

Since those proceedings were adjourned part heard to

a

date in November, Mrs Morton and her son, Mr Wiasak, have lodged

a further caveat or

caveats, and proceedings have been launched

in the Supreme Court on behalf of

Mr Black f o r the removal

of the

caveat or caveats and for contempt of court in relation to their

lodgment.

I am now asked. those proceedings being due to be heard

tomorrow, to grant urgent ex parte relief in order to prevent the

matters proceeding in the Supreme Court.

Mr Wiasak has also

lodged a notice of motion, which is due to be heard in

a couple

of weeks time, to be joined as

a party to the proceedings in this

Court, which seek relief under the Trade Practices Act and also

i '

on

the

basis

of

various

other

allegations

the

Wpe* c#

transactions in which reliance is placed upon the accrued

X

jurisdiction of the court.

Apart from the matters

I

have mentioned, it does not

3 .

I

seem to me that there is anything different about the situation

i

I

with which I am now confronted from the situation with which the

I

Court

was

confronted

at

the

time

the

principal

proceedings

in

'1

this Court were adjourned part heard. At that time, when of

course the respondent,

Mr Black, was also before me, detailed

consideration

was

given

tohe

question

whether

some

I

interlocutory

relief

should

be

granted,

and

indeed

partial

i

restraint upon his power of sale was in fact accepted by Mr Black

on that occasion. I refused to make further interlocutory orders

which were sought on behalf of Mrs Morton.

At that time I had well in mind the payment of the

sum

of money which was procured to be paid and which

Mr Wiasak says

I

was paid by him. Indeed the evidence which Mrs Morton had then

given

to

me

indicated

that

this

sum

had

been

wholly

or

substantially paid by her son.

The proceedings at that stage

were in her name only but the consequences of the payment were

involved in so far as the proceedings were brought on the footing

that she had procured by arrangement with her son the payment of

the sum.

I do	not think the considerations which had to be

weighed are materially affected by the presence before the court

now of Mr Wiasak, who previously appears to have been prepared to

have his interests watched over by his mother.

I do not think

his appearing now to put personally what in substance he put

before by proxy makes the case for relief any different. He has,

!

4 .

P _ . -

I, -. 11,. .

f i r . :

.

,; ,.

as I have said, been aware	of the proceedings and, it is	a fair	1 . .
,;-.

inference, involved in the giving of instructions in them.

The

!, , 4

i .

I .:

6: ,

particulars supplied in the amended statement of claim make that

!. I

...

. .

,

/

clear.

I do not think any ex parte order designed to enable the

applicants to retain the benefit of the caveat is, in all the

circumstances, appropriate. I consider that the question whether

the lodgment of that caveat constitutes a contempt

in relation to

the order

of the Supreme Court is clearly

matter that it is not

appropriate this court should intrude upon.

As the removal of

the fresh caveats will merely return the situation

to

the

condition which obtained at

the-time of the interlocutory relief

which I did grant, I cannot see that the prospect

of that removal

would justify me now making an

ex parte order upon evidence which

raises no

new ground for

the grant of a restraint upon the

exercise by the mortgagee

of his rights under the mortgage.

I

Accordingly, I

refuse the ex parte relief which

Is

sought.

I would just like to add once again what

I have already

said, both on the last occasion and in argument, that

I urge the

applicants to obtain legal advice on problems the legal aspects

of which, it seems clear to me, they are quite unable to unravel

for themselves or even to understand. The Court stands ready to

hear applications which are presented with or without legal aid,

5.

1

I

!

but the Court can only act on what is presented to it.

If

I

i

~

parties who do not understand the issues present applications,

I

there is the gravest danger that the real issues will never be

presented at all, and there is also of course the danger that

substantial sums

of

money will be thrown away upon wholly

misconceived issues.

I

reiterate what I said at the conclusion

I

of the previous hearing that these remarks do not imply any view

l

one way or the other about the issues concerning which

I ave not

yet heard all the evidence.

l

.,

I certify that this and the

preceding four

( 4 ) pages are a

true copy of the Reasons for

Judgment herein of his Honour

Mr. Justice Burchett.

C . h C 1 B L ; .

Associate

..

Dated: 7 August 1986

i . I

:

I

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

) )

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G345 of 1985

)

GENERAL DIVISION

1

>

BETWEEN:

MARY MORTON

Applicant

-

AND:

DONALD ROSS BLACK

Respondent

7 August 1986

EX TEMPORE REASONS FOR JUDGMENT

BURCHEXT J.	i
! I '

This is an application for ex parte relief made by

Mr S

t :

Morton and Mr

Wiasak.

I have

previously

dealt

with

an

I

application for interlocutory relief made by Mrs Morton

in

the

closing stages of her part heard case against Mr Black.

In that

case it was intended that

Mr Hiasak, who is Mrs Morton's son,

would give evidence. and it is clear that he was aware of the

proceedings. The evidence before me indicated that e had played

an active part in the negotiations and transactions with which

those proceedings were concerned, and had either provided, or

played a significant role in the provision of,

a sum of $95,000

or

thereabouts.

The

proceedings

concerned

negotiations,

a

document purporting to be

a contract of purchase, and

a document

!

2 .

purporting to be	a mortgage. all relating to land. There had	. . I
, -

<

1.;

been a caveat lodged on behalf of Mrs Morton in order to prevent	!
i~

a threatened mortgagee's sale by Mr Black. The caveat had, prior	1	i,
k

to the matter coming before me, been ordered to be removed by the	l
i

Supreme Court

of New South Wales. Indeed the judgment of

Mr

I :,

I

Justice Young, which was affirmed on appeal by the Court	of	.	;	.	j
I.
Appeal Division of the Supreme Court of New South Wales, was

referred to in the proceedings before me.

8

,

Since those proceedings were adjourned part heard to	a	t : .
i

date in November, Mrs Morton

a d her son, Mr Wiasak, have lodged

h . ~ . ,

I~

a further caveat or caveats, and proceedings have been launched	;,,a.
, .
L 1

in the Supreme Court on behalf of	Mr Black for the removal of the	7 .
. . I . . .

caveat or caveats and for contempt

of court in relation to their

L-.

lodgment.

I .

now asked, those proceedings being due to be heard tomorrow, to grant urgent ex parte relief in order to prevent the

l**

:i

; ;

I

.~

' _I

I am

matters proceeding In the Supreme Court.

Mr

Wiasak has also

1

i i

I

lodged a notice of motion, which is due to be heard in

a

couple

i.'

of weeks time, to be joined as a party to the proceedings in this Court, which seek relief under the Trade Practices Act and also

on	the	basis	of. various	other	allegations	related	to	the	1.
Pap=+ cf

transactions inAwhich reliance I s placed

upon

the

accrued

I

-

1 i '

jurisdiction of the court.

- !..

t

p,

.

I

.

1 -:

Apart from the matters

I

have mentioned, it does not

?

!

3 . ,-

seem to me that there is anything different about the situation

with which

I am now confronted from the situation with which the

Court was confronted

at the time the principal proceedings in

this Court were adjourned part heard. At that time, when of

course the respondent,

Mr Black, was also before

me.

detailed

consideration

was

given

to

the

question

whether

some

interlocutory

relief

should

be

granted,

and

indeed

partial

restraint upon his power of sale was in fact accepted by Mr Black

on that occasion.

I refused to make further interlocutory orders

which were sought on behalf of Mrs Morton.

At that time I had well in mind the payment of the

sum

of money which was procured to be paid and which

Mr Wiasak says

was paid by him.

Indeed the evidence which Mrs Morton had then

given

to

me

indicated

that

this

sum

had

been

wholly

or

substantially paid by her son. The proceedings at that stage

were in her name only but the consequences of the payment were

involved in

so far as the proceedings were brought on the footing

that she had procured by arrangement with her son the payment	of
the sum.

I do not think the considerations which had to be

weighed are materially affected

by the presence before the court

now of Mr Wiasak, who previously appears to have been prepared to

have his interests watched over by his mother.

I do not think

his appearing now to put personally what in substance

he. put

before by proxy makes the case for relief any different.

H e has,

!

I -

4 .

l

as I have said, been aware

of the proceedings and, it is

a fair

I

inference, involved in the giving of instructions in them.

The

particulars supplied in the amended statement of claim make that

clear.

l

I do not think any ex parte order designed to enable the

applicants to retain the benefit of the caveat is, in all the

circumstances, appropriate. I consider that the question whether

the lodgment of that caveat constitutes a contempt in relation to

the order

of the Supreme Court is clearly

a matter that it is not

appropriate this court should intrude upon. As the removal

of

the fresh caveats will merely return the situation to the

condition which obtained at the,time of the interlocutory relief

which I did grant, I cannot see that the prospect

of that removal

would justify me

now making an ex parte order upon evidence which

raises no new ground for the grant of

a restraint upon the

exercise by the mortgagee of his rights under the mortgage.

I '~

! '

Accordingly, I

refuse the ex parte relief which is

sought.

I would just like to add once again what

I have already

said, both on the last occasion

and in argument, that

I urge the

applicants to obtain legal advice on problems the legal aspects

-

'-	of which, it seems clear to me, they are quite unable to unravel for themselves or even to understand. The Court stands ready to hear applications which are presented with or without legal aid,

but the Court can only act on what

is presented to

it.

If

parties who do not understand the issues present applications,

there is the gravest danger that the real issues will never be

presented at all, and there is also of course the danger that

substantial sums of money will be thrown away upon

wholly

misconceived issues.

I

reiterate what I said at the conclusion

of the previous hearing that these remarks do not imply any view

one way or the other about the issues concerning which	I have not
yet heard all the evidence.

, I

.,

I certify that this and the

preceding four

( 4 ) pages are a

true copy of

the Reasons for

Judgment herein of his Honour

Mr. Justice Burchett.

Associate

Dated: 7 August 1986

Actions

Download as PDF Download as Word Document

Citations

Morton, M. v Black, D.R [1986] FCA 338

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0

[1986] FCA 338

8 Jul 1986