Pachkovski & Ors v Australian Executor Trustees Limited

[2011] HCATrans 107

[2011] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S78 of 2011

B e t w e e n -

ALEXANDRE PACHKOVSKI

First Applicant

GRIGORIY PRIMANZON

Second Applicant

VIOLETTA PRIMANZON

Third Applicant

and

AUSTRALIAN EXECUTOR TRUSTEES LIMITED ACN 007 869 794

Respondent

Summons for a stay

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON MONDAY, 18 APRIL 2011, AT 9.43 AM

Copyright in the High Court of Australia

__________________

MR A. PACHKOVSKI appeared in person.

MR G. PRIMANZON appeared in person.

MS V. PRIMANZON appeared in person.

MR J.B. SIMPKINS, SC:   May it please the Court, I appear on behalf of the respondent.  (instructed by Gadens Lawyers)

HIS HONOUR:   Yes.  Could we have the interpreter sworn or affirmed first, please?

ARAMAIS AROUSTIAN, affirmed as interpreter.

HIS HONOUR:   Mr Interpreter, would you be good enough to ask the applicants who is to speak on their behalf this morning?

THE INTERPRETER:   The lady will be speaking, your Honour.

HIS HONOUR:   Is that Mrs Pachkovski?

MRS PRIMANZON:   Maia Primanzon.

THE INTERPRETER:   Her name is Maia Primanzon.

HIS HONOUR:   Thank you, Mrs Primanzon.  Now, Mrs Primanzon, I have read many of the papers that have been filed in the matter.  Can I identify with you what papers I have and we can then see whether I have all of the papers that I should have?  Do you understand what I am about to do with you?

MRS PRIMANZON:   Yes.

HIS HONOUR:   Yes.  I have, of course, the application for special leave to appeal to this Court.  That is the document that started the process in this Court.  I have looked at the judgment of Justice McColl of 23 February 2011.  I have seen the judgment of Justice Hidden of 12 October 2009.  I have seen also the various notices of intention to appeal and summons seeking leave to appeal which you gave in the Court of Appeal, and I have seen the draft notice of appeal and your written case in this Court.  Those are documents that are on the file.

Then, in addition, I have your summons, which is the summons filed on 8 April, together with the affidavit of Mr Pachkovski sworn on 8 April 2011, and there are various exhibits to that document.  There is then an affidavit sworn on 15 April 2011 of Helen Patricia van Ravels.  Those are the documents, together with a respondent’s submission on stay application, which I have seen.  Do you understand the documents I have looked at?

MRS PRIMANZON:   Yes.

HIS HONOUR:   Now, Mr Simpkins, is there any reason why I should not receive the affidavit of Mr Pachkovski?

MR SIMPKINS:   No reason why your Honour should not receive it.  There are a few objections that we would otherwise wish to take in ordinary circumstances to some parts of that affidavit.

HIS HONOUR:   Do you really want to press those objections, Mr Simpkins?

MR SIMPKINS:   No, your Honour, it might be more efficient just to go ahead.

HIS HONOUR:   Yes, thank you.  Is there any reason why I should not, Mrs Primanzon, receive the affidavit of Ms Van Ravels?

MRS PRIMANZON (through interpreter):   No, your Honour.

HIS HONOUR:   Now, Mrs Primanzon, what is it you want to say to me this morning?

MRS PRIMANZON (through interpreter):   On 8 April there was another court matter when an appeal should have been heard.  We have paid for the appeal, we have a letter from the court, but our appeal was not heard and it was immediately dismissed – leave to appeal was dismissed.  That is why we have prepared new documents and we intend to file them today – a new summons, a new affidavit and new other documents.  These are documents which we have received and the word “appeal” appears in all of these documents.  There should have been an appeal heard before a registrar.  Then point 10 of an affidavit of Helen Patricia Van Ravels – section 10 says – mentions the words “appeal hearing” and 12 mentions that be dismissed with - appeal with costs.

We also have a judgment in which there was no – from which there was no appeal.  This is the judgment which was submitted in court, and submitted on 15 – leave to appeal is dismissed with costs, but there was no appeal; that is, there was no hearing of our matter at all, anywhere.  Our cross‑claim should have been heard on 31 March and 1 April, and the judge used a…..of opposition, he replaced that with a…..opposition.  Here we have his documents, this is a judgment of Hidden.  Then we submitted a notice of motion to be left in the queue.  Judge Young left us there and made the following conclusion, that there was no hearing of our cross‑appeal and there are no other documents apart from a contract, and also there were differences between the contract and the application form and there was no inclusion of contract itself.

In the words, there were three years at a fixed rate and they changed that to a variable rate.  Then we had a home loan and our residential home loan was for some reason transferred to our commercial loan, but we continue to live there.  There was another hearing in a court, we were summonsed to appear – Hidden, Mr Hidden – and he called us in and he said that there was no – we have no cross‑claim here and he dismissed that without a hearing. 

Afterwards we submitted a summons because it was too late to apply, and now our summons has been dismissed as well.  When the loan was agreed to we kept on requesting that a copy of the contract be sent to us.  The contract was not sent to us within a 14‑day time period.  We did not receive any statement.  We did not even get a statement.  The statement which should have arrived in July 2000 never appeared.

When the interest required payment continued to grow we wrote them a letter asking why.  They reduced it to a lower amount and this was repeated virtually every month.  Then we sent a letter of complaint to the manager and so when the person who got that letter, the person with whom we had contact who was Rebecca, she just disappeared, and her telephone was disconnected for some reason after that.  We only found out what was going on when we received from the bank a notice of default, and from May until about 8 September we could not get a copy of it.

There was an order of the court.  They sent us a letter of offer and a contract which were the same documents, and we cannot seem to get any more documents from them at all.  Grigoriy Primanzon did not sign the contract, nor the mortgage documents.  In the judgment of Hidden, he was being pushed to enter the contract.  Here is his affidavit.

HIS HONOUR:   Just a moment.  Before we go into those matters, you should assume that I am familiar with the judgments of Justice Hidden.  I know what he has said, and I know what Justice McColl has said.  Can I ask you this?  On 8 April the Court of Appeal, when it made its decision, said that no one appeared for your side of the dispute.  Is that right?

MRS PRIMANZON (through interpreter):   Yes, that is correct.  We came on 8 April but we did not stay because my husband had an attack of elevated blood pressure when the date of the hearing was changed – sorry, the time, not the time.

HIS HONOUR:   Yes.

MRS PRIMANZON (through interpreter):   On 8 April when we heard that McColl was in court, I came together with my son.  I knew that he was very depressed and he could not tolerate such an experience again because she was against us and she did not want to listen to any of our arguments, even the elementary, even the most basic arguments that certain arguments of the other side had been changed.  The evidence was changed; that is to say, Mr Blier said that it was an investment loan, and it was changed to be an investment loan.  That was all in the transactions.  We can show it to you.  Mr Hidden asked Grigoriy Primanzon, “Do you agree?  Are you denying that you are a party to loan contract and the mortgage?” and Grigoriy replied, “I am, because my signature was forged”.  In the judgments it says that Grigoriy had signed these documents.

HIS HONOUR:   Yes.  Well, again, can I interrupt this description?  Your application – the appeal you want to bring to this Court is an appeal against the judgment of Justice McColl.  That judgment, or that order, has been overtaken by the Court of Appeal’s dismissal of your appeal.

MRS PRIMANZON (through interpreter):   But there was no appeal court hearing.

HIS HONOUR:   There was a hearing at which you did not attend.

MRS PRIMANZON (through interpreter):   I have a statement; I have the order of the court.  There was no appeal hearing, our matter was dismissed.

HIS HONOUR:   Yes.

MRS PRIMANZON (through interpreter):   The summons – the leave to appeal was dismissed, but there was no appeal.

HIS HONOUR:   Yes.  Now, the respondent, Australian Executor Trustees, says that your application for leave to appeal to this Court then is futile because the Court of Appeal’s order has overtaken the order of Justice McColl.

MRS PRIMANZON (through interpreter):   Well, we are making a new application to overturn the judgment of the appeals court because there was no hearing.

HIS HONOUR:   Yes.  Have you made any application to the Court of Appeal to overturn their decision which was made in your absence?

MRS PRIMANZON (through interpreter):   No, we did not know about that.  We do not have a solicitor.

HIS HONOUR:   Yes, I understand that.  Well, is there anything else you can say?

MRS PRIMANZON (through interpreter):   We ask that we be allowed to remain in the home where we are living and not be evicted before a decision of the Court.  My father lives there, he is a war veteran, a war invalid, and we cannot move anywhere else.

HIS HONOUR:   Yes.

MRS PRIMANZON (through interpreter):   He has special equipment built in the home and nobody renting our premises would allow that equipment to be installed.  We applied to nursing homes but there are queues, waiting lists, at least of two months.  As well as that, my daughter has moved in with her brother, that is my son, but they are living in a one‑bedroom unit with two children.  That is because the school is nearby and also the kindergarten.  …..lives in the home, but he has three children, two of them go to a children’s – like a kindergarten, and one goes to school.  It is impossible to find adequate accommodation, and in any case, there has been no sort of final settlement of this matter because we only received the notice of this decision last Friday.  Today – in the next two days, we will submit the application to appeal once again.  So we are only asking that you allow us to stay in the home until the decision is reached.

In particular, since the McColl decision has been sort of overturned or overtaken we are asking for the documents – we are asking for our

subpoena to be reinstated.  We have no other documents apart from the contract.  We do not have a letter of offer, for instance.  We have been asking them.  They keep on insisting that there is such a letter but they do not want to show it to us.  There it says quite clearly, three per cent fixed rate and interest payable only.  There is no home loan there, and there is no default in that document.  The difference between their calculation and our calculation is now almost a million dollars.  That is why we cannot sell.

We tried to sell it last year.  We had an offer of 2.8, now they are demanding over $3 million from us.  According to our calculations, it is only about two and a half million dollars.  We have been living in that home for so long now, and all the attachments and all the equipment are already there, and we are only asking that we be allowed to stay there until the matter is resolved.  It is quite possible to find a new school; I mean that is not such a problem, but finding the appropriate playschool or kindergarten, that is a much harder issue.  I have a huge problem with my father because he is motionless and we need a minimum of two months to enrol him in a nursing home because no one offering rental accommodation will accept us with his problems.  That is why we came here today.

HIS HONOUR:   Yes, thank you very much, Mrs Primanzon.  Mr Simpkins, do you desire to add anything to what appears in your written outline?

MR SIMPKINS:   Only to say something briefly about the circumstances of the adjournment application that was made before the Court of Appeal, if your Honour thought that to be a relevant matter.

HIS HONOUR:   I saw there was an adjournment application which was refused.

MR SIMPKINS:   Yes, your Honour, there was an appearance on the day the appeal was listed by a pro bono barrister, Ms Lane, who had received instructions from some of the applicants to appear.  She informed the court that instructions had been withdrawn I think the night before, so she sought leave to withdraw from the court and was granted that leave.  There was no formal application before the court for an adjournment, but a document in the nature of a letter was on the court file indicating that the applicants or some of them wished there to be an adjournment.  That adjournment application, such as it was, was supported by some medical certificates.

The Court of Appeal had regard to those certificates but thought that they were insufficient in form to justify the adjournment of the hearing.  Your Honour may have gleaned what the Court of Appeal then did was to proceed with the hearing in the absence of the applicants, but having regard to the written submissions that the applicants had placed before the court. 

That is all I wanted to say by way of further elaboration of what actually had happened.  If your Honour pleases.

HIS HONOUR:   Yes, thank you.  Mrs Primanzon, you have heard what Mr Simpkins has said about events on 8 April.  Do you want to answer what was said about those events?

MRS PRIMANZON (through interpreter):   When we went to see the pro bono barrister, she began to read out extracts from the ‑ ‑ ‑

HIS HONOUR:   Yes, could I interrupt you, Mr Interpreter, and say that I do not think that Mrs Primanzon is wise to disclose what occurs between her and her legal counsel.  My concern is to know whether she disputes the description of events on 8 April.

MRS PRIMANZON (through interpreter):   Yes.

HIS HONOUR:   What happened on 8 April, do you say?

MRS PRIMANZON (through interpreter):   We heard that McColl was one of the court judges, and we already knew what the result would be, so I could not force my son to endure this once again.

HIS HONOUR:   Yes, thank you, you have told me that.

MRS PRIMANZON (through interpreter):   My husband was in hospital with a blood pressure of 280 over 220 and the daughter was with him.

HIS HONOUR:   Yes, you have told me these facts, Mrs Primanzon.  Thank you.

MRS PRIMANZON:   Okay, sorry.

HIS HONOUR:   Thank you, you may sit down.

On 7 March 2011, the applicants filed an application for special leave to appeal to this Court from the whole of the judgment of the Court of Appeal of New South Wales given on 23 February 2011.  On 23 February 2011, Justice McColl sitting as a single judge of the Court of Appeal ordered, amongst other things, that a stay of a writ of possession, which had been granted by Justice Young on 29 November 2010, should be lifted.  In addition, her Honour set aside a subpoena that had been filed on 6 January 2011.

In order to understand the significance of the orders of 23 February 2011, it is necessary to say a little about the history of these matters.  On 24 September 2010, Justice Hidden of the Supreme Court of New South Wales gave judgment for Australian Executor Trustees Limited, the respondent to the present application, (“AET”), granting AET possession of a property which was the subject of a mortgage granted by Mr Pachkovski and his two children, Mr and Mrs Primanzon.

Justice Young had, as I have earlier indicated, granted a stay of execution of the writ of possession that issued in consequence of Justice Hidden’s order.  Justice Young granted a stay on the condition that the present applicants make certain periodical payments to AET in respect of the amount which had been borrowed from AET on security of the property which was the subject of the writ of possession. 

On 23 February 2011, Justice McColl determined a motion filed by AET and a motion filed by the present applicants.  On the motion of AET her Honour ordered that the stay of the writ of possession granted by Justice Young was to be lifted.  The applicants had, by cross‑application, sought a further stay of execution of the judgment of Justice Hidden, but that cross‑application was not granted. 

It is the orders of Justice McColl which are the subject of the application for special leave to appeal.  On 28 March 2011, after the orders of Justice McColl had been made, Justice Beazley ordered that the applicants’ summons for leave to appeal out of time to the Court of Appeal of New South Wales against the judgment of Justice Hidden and the appeal, if leave were to be granted, should be fixed for hearing on 8 April 2011.

On that day, when the summons for leave to appeal was called on in the Court of Appeal, I am informed that counsel, who had agreed to act pro bono on behalf of the applicants, informed the Court that her instructions to appear on behalf of the applicants had been withdrawn and she sought leave of the Court to withdraw from further conduct of the matter.  Having regard to correspondence which appeared on the file, the Court of Appeal treated the applicants as having made application for adjournment of their application for leave to appeal of the court.  That application for adjournment was refused.

The Court of Appeal then proceeded to the hearing of the application for leave to appeal.  There being no appearance on behalf of the applicants to prosecute the application, the Court of Appeal considered the written submissions which the applicants had filed in support of their application for leave to appeal and concluded that the application for leave to appeal should be dismissed.  Accordingly, the orders which the applicants had sought from Justice McColl which were, in effect, a continuation of the stay made by Justice Young pending the hearing and determination of the application for leave to appeal to the Court of Appeal were orders that if they were to be made would be of no further utility.

The immediate application which the applicants now make to me is in form an application for a stay pending the hearing and determination of their application for special leave to appeal.  Given that their application for special leave to appeal is against the orders of Justice McColl and, given further that there is now no utility in this Court considering the correctness of the orders made by Justice McColl, the application for stay is one which must be refused.

In the course of oral argument the applicants further indicated, however, that they would seek, as best I understood it, to enlarge their application for special leave to appeal to seek leave to appeal against the substantive judgment made by the Court of Appeal in respect of their application for leave to appeal to that court.  If I were to treat their application for a further stay as made in support of that proposed application, it would be important to recognise that they would seek leave to appeal to this Court against a judgment entered in circumstances where they, so far as the evidence now reveals, deliberately chose not to appear in the Court of Appeal.

An application for special leave to appeal to this Court against orders of that kind would enjoy insufficient prospects of success to warrant granting a stay to preserve the status quo pending the hearing and determination of such an application.  It follows that even if I were to treat the present application as being prosecuted on the enlarged basis I have described, the application for a stay is one which should be refused.

The order that I will make is that the summons of the applicants dated 8 April 2011 is dismissed. 

Mr Simpkins?

MR SIMPKINS:   We would ask for costs, your Honour.

HIS HONOUR:   Yes.

MR SIMPKINS:   Is there any reason why costs should not follow the event?

MRS PRIMANZON (through interpreter):   Yes, because we are paying mortgage payments all the time.

HIS HONOUR:   Yes.

MRS PRIMANZON (through interpreter):   That is first.  Because we have been constantly sick.  We do not have a solicitor and we have not got enough money to afford this and it was an unjust court.  But can there be a just court without documents?  We are being charged an extra million dollars.  It is unjust.  No documents are available – no documents that we signed and we are being charged.  Where is the justice here?  I do not know what to do now.  We are to be moved.  We are paying – we have been paying since 6 April.  Every month we pay by cheque.

HIS HONOUR:   Yes.  Thank you, Mrs Primanzon.  I understand those matters.  The application will be dismissed with costs.

Adjourn the Court.

AT 10.25 AM THE MATTER WAS CONCLUDED