Pisano and Anor v Williams

[2015] HCATrans 281

Replacement Transcript

[2015] HCATrans 281

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S143 of 2015

B e t w e e n -

BRUNO PISANO

First Applicant

SIA PISANO

Second Applicant

and

PATRICK FRANCIS WILLIAMS

First Respondent

GEORGIA DANDRIS

Second Respondent

Summons

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 28 OCTOBER 2015, AT 10.05 AM

Copyright in the High Court of Australia

MS A.F. KNOX:   May it please the Court, I appear for the applicants, both in the underlying application and the summons.  (instructed by Gadens Lawyers)

MS Y.S. FROST:   May it please the Court, I appear for the first respondent.  (instructed by Alexanders Lawyers)

HER HONOUR:   Ms Knox.

MS KNOX:   I understand the second respondent on the summons today has filed a submitting appearance – Ms Dandris.

HER HONOUR:   Yes, that is so and, indeed, although not a party, there has been a submitting appearance filed by the trustee.

MS KNOX:   Yes, the trustee is a party to the summons that I move on today, your Honour.

HER HONOUR:   Yes.

MS KNOX:   I move on that summons which was filed on 14 October 2015.

HER HONOUR:   Yes, thank you, Ms Knox.

MS KNOX: Your Honour, I seek an order in the form of prayer 2 which is expressed as an alternative order, and it is simply an order pursuant to rule 21.05.1 of the High Court Rules that Georgia Dandris, who is the bankrupt, cease to be a party to these proceedings.

HER HONOUR:   Yes, and do I understand you read the affidavit of Ms Konstantinidis?

MS KNOX:   I do read that affidavit sworn on 14 October, your Honour, and I tender the original exhibits, OK‑1 through to OK‑12 to that affidavit, which should have been filed with it.

HER HONOUR:   Yes, and that is your evidence?

MS KNOX:   That is my evidence.

HER HONOUR:   Ms Frost, any objection?

MS FROST:   No, your Honour.

HER HONOUR:   Yes, very well, I have read that affidavit, Ms Knox, and I have also read your submissions filed on 23 October 2015.  I must say, Ms Knox, it would seem to me, at first blush, that the appropriate order was the alternative order that you seek in your summons.  No order was made by the Court of Appeal that affects Ms Dandris and, as I understand your submission, the only interest that you saw as possibly arising on the part of the trustee was, in the event special leave were granted and the appeal succeeded, that some question of apportionment might then arise, but that was not a matter that was considered by the Court of Appeal.  Is that ‑ ‑ ‑

MS KNOX:   All except for the very last sentence of what your Honour has just put to me is quite – is the position.  In relation to apportionment – and perhaps it might assist if I took your Honour to the relevant documents.

HER HONOUR:   Yes.

MS KNOX:   Actually that may not be necessary.  Given that I am not pressing for order 1, perhaps I need not trouble your Honour with it, other than to say that the Court of Appeal did consider the question of apportionment, and despite Ms Dandris not being an active party in those proceedings, did make a determination in relation to those matters but, as your Honour rightly says, in terms that did not require the making of an order against Ms Dandris and the consequence obviously being that the orders we seek would only indirectly, if at all, affect her estate.

HER HONOUR:   Yes.

MS KNOX:   Simply by way of explanation, because I am conscious that your Honour has taken the time to read the submissions filed on 23 October, which focused on prayer 1, those submissions were filed at a time when no appearance had been entered by Ms Dandris or the trustee and my instructors had received no written indication ‑ ‑ ‑

HER HONOUR:   I understand.

MS KNOX:   That is all.  It was simply to address the procedural fairness concern that my clients had in relation to the trustee.

HER HONOUR:   Yes, I understand.

MS KNOX: In relation to prayer 2, which seeks an order that Georgia Dandris cease to be a party, as I have already indicated, it is sought under rule 21.05.1(a) of the High Court Rules which permits the making of an order where a person is not a proper or a necessary party – she is not a proper or a necessary party, for the reasons that your Honour has already put to me.

HER HONOUR:   Yes.

MS KNOX:   I am happy to take your Honour through the evidence, but it is not necessary ‑ ‑ ‑

HER HONOUR:   I do not think that is necessary, thank you, Ms Knox.  Ms Frost, is there anything you wish to put?

MS FROST:   Yes, your Honour.  Although we are not party to the summons, we do consent to that particular order.

HER HONOUR: Thank you, Ms Frost. In light of the affidavit of Ms Konstantinidis sworn on 14 October 2015, and noting the submitting appearance of the trustee on the summons, I order, pursuant to rule 21.05.1 of the High Court Rules 2004 (Cth) that the second respondent, Georgia Dandris, cease to be a party to this proceeding.

MS KNOX:   May it please the Court.

HER HONOUR:   Thank you, Ms Knox and Ms Frost.  Adjourn the Court.

AT 10.11 AM THE MATTER WAS ADJOURNED