Narain v Euroasia (Pacific) Pty Ltd & Ors

[2010] HCATrans 188

[2010] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M119 of 2009

B e t w e e n -

EDWINA KATE NARAIN

Applicant

and

EUROASIA (PACIFIC) PTY LTD (ACN 006 604 922)

First Respondent

RAVI AMRIT NARAIN

Second Respondent

ANDREW JOHN MICHAEL

Third Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 JULY 2010, AT 12.10 PM

Copyright in the High Court of Australia

MR P.J. HAYES:   May it please your Honours, I appear for the applicant.  (instructed by Russell Kennedy) 

HAYNE J:   Yes, Mr Hayes.

MR HAYES:   I also appear out of courtesy to the Court.  I should flag at commencement that it is the applicant’s intention that this matter not proceed today.  There is a critical issue of standing.

HAYNE J:   We have been provided with a letter from the solicitors for the applicant to the Registrar, together with some accompanying material which asks that the application stand out of the list pending hearing and determination of an application for leave to appeal to the Federal Court against decisions made in connection with her bankruptcy.  Is that right?

MR HAYES:   That is so, your Honour; yes.

HAYNE J:   Do I take it that that is what you say should occur – that the matter should stand out of the list?

MR HAYES:   It is, your Honour; yes.

HAYNE J:   The first respondent has communicated with the Registry saying that it was not intended to appear today.  So far as the material on the file would reveal, the application has not, I think, been served on the second and third respondents.

MR HAYES:   Your Honour, I was coming to that.  In the fullness of candour, the material was provided to the solicitors for the respondents late yesterday afternoon or early yesterday evening.  My instructing solicitors have been informed this morning that the respondents do not intend to appear – that is today.  They have been informed, of course, of the proposed course to be taken by the applicant.  However, I should also inform the Court that the respondents in no way consent to the orders sought by the applicant, namely that the matter be removed from the list and, indeed, would seek that the application for leave be determined this morning.  Of course, that latter course would be inviting your Honours to resist any final determination of the application.

HAYNE J:   Have you any indication when the application for leave in the Federal Court will come on?

MR HAYES:   Again in the fullness of candour, your Honour, the papers were only filed yesterday.  We would expect it to be determined this year

some time.  Subject to the outcome of the proceedings in the Federal Court, one of two things would happen.

HAYNE J:   But it is application for leave out of time, then?

MR HAYES:   It is, your Honour; yes.

HAYNE J:   How long out of time?

MR HAYES:   Four months out of time, your Honour.

HAYNE J:   Yes.

MR HAYES:   There is an explanation in the affidavits.  Anyway, that is a matter which will be ventilated before the Federal Court.  We would be hopeful that the matter would be determined some time – the question of leave - it is a crisp point, as your Honour might say - some time this year.  As a consequence of that I would be hopeful that the matter would be back in this list some time early next year.

HAYNE J:   If it stood out of the list, Mr Hayes, it could be reinstated in the list, I would have thought, only on filing of material demonstrating that the applicant had standing to pursue the application.

MR HAYES:   Yes, your Honour, and that matter of standing which would indeed supplement the application book would be cured if the applicant were to succeed in her appeal in the Federal Court.  So it will be the Federal Court’s judgment which would cure that problem.

HAYNE J:   Yes.  The application will be stood out of the list, Mr Hayes.

MR HAYES:   If your Honours please.

HAYNE J:   The Court will adjourn to reconstitute and to establish the video link to Perth.

AT 12.14 PM THE MATTER WAS ADJOURNED