Moulieux Pty Limited v Girvan NSW Pty Limited (Receiver and Manager Appointed)

[1991] HCATrans 267

~ ~

-, .. ~JA

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S126 of 1991

B e t w e e n -

MOULIEUX PTY LIMITED

Applicant

and

GIRVAN NSW PTY LIMITED
(RECEIVER AND MANAGER

APPOINTED)

Respondent

Application for a stay of

proceedings

.,

TOOHEY J

(In Chambers)

Moulieux 1 24/9/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 24 SEPTEMBER 1991, AT 9.00 AM

Copyright in the High Court of Australia

MR A.J. SULLIVAN, QC:  May it please Your Honour, I appear

in that matter for the applicant, with my learned

friend, MR G.B. COLYER. (instructed by Messrs

Carneys)

HIS HONOUR:	Thank you.
MR SULLIVAN:	Your Honour, might I before I start express

our appreciation to the Court and its registry for

seeing us at such short notice, and we appreciate

you have got a difficult day today and we will try

to be as brief as we can, Your Honour.

HIS HONOUR:  I think that comment invites a response from

me, Mr Sullivan. It seems to me that there are two

matters that you really need to come to grips with

first up. One is why I should deal with this

matter as a matter of such urgency, and the second,

and perhaps more important aspect, is why should I

deal with it as an ex parte application.

MR SULLIVAN:  Yes, Your Honour. I think both of those

matters, Your Honour, can be answered with the same

response, with respect. Yesterday afternoon we

received a letter by facsimile transmission from

Colin Biggers and Paisley, Solicitors.	I seek
leave to hand that up to Your Honour.

HIS HONOUR:  Yes, thank you. What is the likely sequence of

events, Mr Sullivan? Once the summons has been

served, what are the steps that then take place?

' MR SUI~IVAN: The steps that then take place, Your Honour,

would be advertising process whereby the summons is

advertised in the Government Gazette and probably

the Sydney Morning Herald, in this case in Sydney,

and then the return date for a summons which we have not seen yet, presumably will be within 14 days or so and then the matter would proceed on the

basis of a hearing to seek to wind the company up.

HIS HONOUR:

I take it there are no consequences until there

has been a hearing and an order made, that is, no

irreparable consequences.

MR SULLIVAN: There are two potential consequences,

Your Honour, and I have to apologize in the sense I have not got evidence on of this, but Your Honour

will be familiar with many security documents for

loans and the like which provide for calling up of

a loan ·at what they call events of default, one of

which is typically the commission of an act of

bankruptcy which includes the presenting of a

winding up summons. Now, Your Honour, when I say I

have not got any evidence of that, I do not know

and I would not seek to mislead you in saying that

I know that exists here, but that is one potential

Moulieux 2 24/9/91

matter which, due to the urgency of this matter

coming on, I have not got instructions about.

The second one, of course, Your Honour, is

with a trading company, the advertisement of the

petition in a newspaper does impact adversely on

its reputation and the like, in our submission, and

it is the presentation, we would say, in accordance

with normal principles or the file and serving

which, if there is a good case, should be

restrained. If Your Honour was to hear us today

and if Your Honour was to grant the stay, our

intention would be and our instructions are to then

reapply to the equity division of the New South

Wales Supreme Court to seek an order restraining

any further steps being taken in respect of the

petition.

It would seem to us, with respect, in the

light of what Mr Justice Rolfe said yesterday in

the supreme court that he would not regard that as

being a bona fide dispute unless there is a stay or

unless steps are taken to in some way challenge the Court of Appeal decision, and hence the application for special leave and hence the - - -

HIS HONOUR: In a sense that, perhaps, only points up the

undesirability of granting a stay without hearing

from the other side, if the granting of a stay by

this Court is going to have consequences in the

Supreme Court of New South Wales.

MR SULLIVAN:  Your Honour, one could, with respect, approach

it in two ways, in our respectful submission.

Your Honour, I would appreciate, not wishing to

burden Your Honour on more occasions than is

necessary, we would urge the course, Your Honour,

of granting a stay for a limited period of time

returnable at a time convenient to this Court at

which the other side could be present, and we would

maintain the burden of continuing the stay on that

occasion if Your Honour felt that it was a proper

case for the other side to be heard.

HIS HONOUR:  In saying that, Mr Sullivan, are you putting to

me that the grant of a temporary stay by this Court

would not itself be a basis for returning to the

Supreme Court of New South Wales, but would merely hold the position until the respondent be given an opportun~ty to be heard.

MR SULLIVAN:	Yes, Your Honour.
HIS HONOUR:	You see, you mentioned two matters, or two

implications of the commencement of winding-up

proceedings against your client. The second of

them I understand but it does not seem to me, as

Moulieux 24/9/91

presently advised, that it can carry very much

weight because this Court has said on more than one

occasion that the granting of a stay pending an

application for special leave to appeal is an

exercise of extraordinary jurisdiction. It is only

granted to preserve the subject matter of the

appeal. Now, it is true that the commencement of

winding-up proceedings may have adverse

implications for your client but, of itself, it is

hard to see that it could in any way destroy the

right of appeal if all that had happened was the

commencement of the proceedings.

The other aspect you have mentioned is the possible implications for other securities into

which the company has entered.

MR SULLIVAN:  Yes, Your Honour. I could not point

Your Honour to anything which would cause

irreparable damage and, again, I do not wish to put

my case higher than I can.

HIS HONOUR:	No.
MR SULLIVAN:	Your Honour, we do appreciate the very heavy

burden we have of persuading Your Honour to grant a

stay and Your Honour is, with respect, perfectly

correct of course in saying that this Court, in several cases, has indicated it has got to be a case of an extraordinary nature. We would say,

Your Honour, with respect, that although it has

often been expressed in terms of being a stay to

preserve the status quo, the rower of the Court to
grant a stay, of course, is much wider than that

if the interests of justice demand it. We would

say, and we do submit, that although I cannot say

to Your Honour that if Your Honour refused a stay

it would cause irreparable prejudice to my client,

we do say that we can show Your Honour material
which would indicate that we have a strongly

arguable case and that any adverse consequences

which may flow from this step which can be avoided,

we would submit, should be avoided.

HIS HONOUR: Well, putting it that way is putting it rather

differently to the way in which it has been
expressed by this Court on a number of occasions.

Perhaps it may be simply because the Court has not

been invited to express the matter in the way in

which you put it. But, in terms of preserving your

right of appeal, I suppose any step short of an

order for winding-up maintains your client's right

to appeal and, indeed, perhaps thereafter.	I do
not know.

MR SULLIVAN:  I am not quite sure thereafter, Your Honour,

but certainly, short of winding-up, my client would

Moulieux 24/9/91

clearly have a right to seek leave to appeal.	Your
Honour, we recognize that.

HIS HONOUR:	Mr Sullivan, without seeking to foreclose the matter, it does seem to me that unless you can
establish today that a failure to grant a stay this
morning would lead to the sort of consequences we have been discussing, namely to remove the right of
appeal if special leave were to be granted, then I
ought not to make any order today but, at best,
adjourn the matter for a short time to give you an
opportunity to serve the other side and hear the matter as a defended application.
MR SULLIVAN:	Would Your Honour just pardon me for a moment

while I get some instructions?

HIS HONOUR:  Yes, well, before you get instructions perhaps

I had better tell you the sort of timing I had in mind.

MR SULLIVAN:	Yes, Your Honour.
HIS HONOUR:	As it happens, I do have some time available on

Friday of this week or Monday of next week so that the time I am envisaging - the interval is quite

short~

MR SULLIVAN:  Thank you, Your Honour. If Your Honour would

not mind -

HIS HONOUR:	Yes, certainly.
MR SULLIVAN:	Your Honour, I cannot point to any matter of the type which Your Honour has indicated would be necessary today and we would ask Your Honour - of
the two suggested dates, if Your Honour could make
available some time on Friday, we would be
extremely grateful.
HIS HONOUR: Well, I can and I am prepared to do so.	I am

just a little concerned that I might be met with

some sort of application by the respondent, on the

basis of shortness of time, that the matter be

adjourned, but no doubt you could inform the

respondent immediately.

MR SULLIVAN: Yes, Your Honour. The factual - - -

HIS HONOUR:  Which gives more than the time that the rules require, I think.

MR SULLIVAN:  I think so, Your Honour. It is not a matter

where I think there will be a lot of disputed

facts.

Moulieux	24/9/91
HIS HONOUR:	I take it that most of the material, at any

rate the undisputed material, the material that is

a matter of record, is before the Court anyhow,

now.

MR SULLIVAN:	Yes, Your Honour.
HIS HONOUR:	I think that is the best course, Mr Sullivan,

because I am really not minded simply to make a

holding order, as it were, and then have to hear

the parties on both sides at some subsequent time.

It seems to me that really achieves nothing and

invites some sort of complaint from the respondent.

MR SULLIVAN:  Yes, Your Honour.

HIS HONOUR: In that case, I suppose, the appropriate order

is simply that the motion be adjourned until Friday

at 10 am; Friday -

MR SULLIVAN: It will be the 27th, I think, Your Honour.

HIS HONOUR:	I will just make quite sure, Mr Sullivan, that in saying that I have that time available that I am
not misleading you.  I think we had just better
double-check that.  I had a feeling that I was not
in Court on Friday.
MR SULLIVAN:	Your Honour, I do not know whether Your Honour

will consider it appropriate to make some

directions about the service of materials.

HIS HONOUR:  Yes, I will do that, Mr Sullivan. I will just

make sure of my availability. Certainly, there is

one day that I think I am available and I thought

it was Friday. Mr Sullivan, one matter you might consider between now and Friday, or whatever date the application is to be heard, is the likely date

on which the application for special leave will be

heard. I gather there are some problems due to the

state of the lists at the present time.

MR SULLIVAN: Yes, we have made some inquiries about that,

Your Honour.

HIS HONOUR:  I do not invite you to respond to that now.

No, Friday seems to be all right.	So what order do
you ask me to make, Mr Sullivan?

MR SULLIVAN:  Your Honour, I would ask you to stand the

matter adjourned until Friday, 27 September 1991;

secondly, I would ask Your Honour to reserve the

costs of today; and, thirdly, Your Honour, I would

ask Your Honour to make a direction as to service.

There are solicitors on the record for the

respondent and, Your Honour, we could serve them by

5 o'clock today and we would attempt to do so. In

Moulieux 6 24/9/91

fact, I am sure there would be no problems about	5
o'clock, Your Honour.

HIS HONOUR:  Very well. The orders will be as follows:

one, that the motion stand adjourned until Friday,

27 September 1991, at 10 am. Now, interpolating,

Mr Sullivan, why should I reserve the costs of

today? Is there any basis upon which your client

could get the costs of the hearing today, as

opposed to the costs that may be associated with

the motion itself?

MR SULLIVAN: 

No, Your Honour.

HIS HONOUR: 

Then the only other order I make is that the

applicant serve upon the respondent's solicitors by
5 pm today the motion and/or documents in support

thereof. Is there anything else that I should do,

Mr Sullivan.

MR SULLIVAN:  No, Your Honour. Thank you very much for your

time.

HIS HONOUR:  Very well. There will be an order accordingly.

The Court will adjourn.

AT 10.16 AM THE MATTER WAS ADJOURNED SINE DIE

Moulieux 7 24/9/91