Rogers v Asset Loan Co Pty Ltd

[2004] FCA 1735

FEDERAL COURT OF AUSTRALIA

Rogers v Asset Loan Co Pty Ltd [2004] FCA 1735

GREGORY ERIC ROGERS v ASSET LOAN CO PTY LTD ACN 107 746 798, ASSET LOAN COMPANY PTY LTD ACN 101 054 997, PAUL ALEXANDER SYDNEY HARE, RUSSELL FRANK PERCIVAL, JUDITH LORRAINE HARE AS TRUSTEE FOR THE HARE PROPERTY TRUST AND RIVERSTONE NOMINEES PTY LTD AS TRUSTEE OF THE PERCIVAL FAMILY TRUST NO 2

Q 275 OF 2004

DOWSETT J
22 DECEMBER 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 275 OF 2004

BETWEEN:

GREGORY ERIC ROGERS
APPLICANT

AND:

ASSET LOAN CO PTY LTD ACN 107 746 798
FIRST RESPONDENT

ASSET LOAN COMPANY PTY LTD ACN 101 054 997
SECOND RESPONDENT

PAUL ALEXANDER SYDNEY HARE
THIRD RESPONDENT

RUSSELL FRANK PERCIVAL
FOURTH RESPONDENT

JUDITH LORRAINE HARE
AS TRUSTEE FOR THE HARE PROPERTY TRUST
FIFTH RESPONDENT

RIVERSTONE NOMINEES PTY LTD
AS TRUSTEE OF THE PERCIVAL FAMILY TRUST NO 2
SIXTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	22 DECEMBER 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. These proceedings concern disputes between the applicant and the various respondents as to the ownership of certain parcels of land.  On 8 December 2004, Spender J dealt with applications for interlocutory relief, making some orders in favour of the applicant and declining to make others.  His Honour clearly considered the various properties separately, making different orders in connection with different properties.  The applicant proposes to seek leave to appeal from that decision and presently asks me to grant a stay pending his doing so.  The application for leave to appeal has not been prosecuted before me today, apparently because the registry told Mr Rogers that it would not be listed for hearing today. 

2. To grant a stay of his Honour’s order would be to revisit the interlocutory arrangements which his Honour has made.  That seems, as a matter of policy, to be an undesirable step to take.  It is true that by failing to grant a stay I may expose the applicant to the risk that property to which he may be entitled will be sold before he can vindicate his claim.  That is a consideration which, in the case of a proposed appeal from a final judgment, would probably lead a Court to grant a stay.  However the order in the present case was made for the purpose of maintaining the status quo.  In my view, as I have said, to stay such an order is effectively to revisit the matters considered by Spender J.

3. Of the specific criticisms made of his Honour’s order, most appear to focus upon the fact that he refused to allow cross-examination by the applicant of the respondents and/or their witnesses.  The purpose of such cross-examination was apparently to demonstrate that one or other of them was not worthy of trust and that it was unsatisfactory that property to which the applicant might be entitled should be left in the care or possession of such a person.  Such an argument would be unlikely to affect the balance of convenience where the property in issue is land and the impugned person is one of two or more co-owners.  I cannot see that there is any arguable appeal point in that aspect. 

4. The applicant’s second major point is that the Court normally treats land as unique, so that damages are unlikely to be an adequate remedy.  There is no reason to believe that his Honour overlooked this aspect.  This is not a very promising appeal point. 

5. In the course of argument I have canvassed the possibility that, in the event of any proposed sale, the applicant might be given the opportunity to bid at any auction or be given notice of such proposed sale so that he would have the opportunity of making an offer at the same or higher price.  Although he was rather keen that I make an order of that kind, the respondents are not quite so enthusiastic about it.  In the circumstances, to make such an order over their objection would, I think, again be to revisit the arrangements made by Spender J.  As I am unable to see that there is any clear error in what his Honour did, it would be inappropriate to take such a course.  

6. Of course, the orders are interlocutory, and if the applicant chooses to apply to vary them in any way, then such application would have to be heard.  However any such application faces the problem to which I have already referred, namely that his Honour appears to have dealt with the matter in an entirely orthodox way.  It is unlikely that another Judge would think that he or she was justified in intervening, at least in the absence of changed circumstances.  I therefore decline to grant a stay of the judgment.  I think that in this case, costs should be reserved.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            24 December 2004

Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the Respondent:	Mr D Quayle
Solicitor for the Respondent:	Hickey Lawyers
Date of Hearing:	22 December 2004
Date of Judgment:	22 December 2004