Rose v Meriton Apartments Pty Limited and Ors

[2013] HCATrans 87

[2013] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S325 of 2011

B e t w e e n -

JOHN EMMANUAL ROSE

Applicant

and

MERITON APARTMENTS PTY LIMITED ACN 000 644 888

First Respondent

OWNERS CORPORATION 56443

Second Respondent

INDUSTRIAL COURT OF NEW SOUTH WALES

Third Respondent

Summons

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 APRIL 2013, AT 10.00 AM

Copyright in the High Court of Australia

MR A.W. STREET, SC:   May it please the Court, I appear for the applicant.  (instructed by Margiotta Solicitors)

MR B.J.A. SHIELDS:   If the Court pleases, I appear for the first and second respondents.  (instructed by Meriton Group and HWL Ebsworth Lawyers)

HIS HONOUR:   Mr Street, is there any reason why this summons, filed on 31 July 2012, should not be dismissed?

MR STREET:   Your Honour, I can see no argument on behalf of the applicant that I would be willing to propound.  The applicant wanted to try and represent himself in person to propound an argument that there was an impact on costs and that by pursuing the application it had utility in relation to costs.  That is not an argument that I think has substance.  Beyond that, no, your Honour, I cannot.

HIS HONOUR:   Thank you.  Mr Shields, you, I take it, read an affidavit of Katerina Mihail of 23 April 2013?

MR SHIELDS:   I do, your Honour.

HIS HONOUR:   And tender the exhibits to that affidavit.

MR SHIELDS:   I do, your Honour.

HIS HONOUR:   You also read an affidavit of the same deponent of 13 September 2012 and tender the exhibits.

MR SHIELDS:   I do, your Honour.

MR STREET:   For completeness, your Honour - could I just seek leave to file for completeness an affidavit for my instructing solicitor of 26 April?  I do not think it in any way – Registrar, could I seek leave – I seek leave to file and read that affidavit, your Honour, but I have nothing further to put.

HIS HONOUR:   Mr Shields?

MR SHIELDS:   I have no objection, your Honour.

HIS HONOUR:   I grant leave to file in Court the affidavit of Anthony Steven Margiotta sworn 26 April 2013.  Mr Street, the affidavit is said to be sworn in support of an application to file a notice of ceasing to act.

MR STREET:   Your Honour, there has not been adequate time and notice given to the applicant and that is why I am here on behalf of the solicitor today.  He is still on the record on behalf of the applicant.  The applicant has not given instructions to file any notice of ceasing to act – a notice of discontinuance.  Your Honour, the issue your Honour raised with me is an issue that these proceedings face.

HIS HONOUR:   The question is are you making, on behalf of Mr Margiotta, an application of any sort?

MR STREET:   No, your Honour.

HIS HONOUR:   What is the point of the affidavit?

MR STREET:   It was, your Honour, to inform the Court of the position of the applicant given that obviously the applicant has taken a different view to his legal advisers.

HIS HONOUR:   Thank you.  Mr Shields, you seek that the summons be dismissed with costs, as I understand it.

MR SHIELDS:   Yes, your Honour.

HIS HONOUR:   Is there any impediment to me making an order for costs against the applicant?

MR SHIELDS:   He is presently bankrupt.  So the provisions of the Bankruptcy Act that would prevent a second proceedings against him may well operate against a costs order unfortunately.

HIS HONOUR:   Very well.  Thank you.

By summons dated 31 July 2012, the applicant sought reinstatement of an application for special leave to appeal that had been deemed to be abandoned under rule 41.13.1 of the High Court Rules on 20 March 2012. On 13 February 2012, the applicant became a bankrupt. The application for special leave to appeal was thereby stayed by force of section 60(2) of the Bankruptcy Act 1966 (Cth).

On 12 April 2012, the first respondent asked the trustee in bankruptcy to make an election whether to prosecute or discontinue the application for special leave to appeal. The trustee made no such election within a period of 28 days and the application was thereupon deemed to have been abandoned by force of section 60(3) of the Bankruptcy Act.

On 18 September 2012, Justice Gummow ordered that the summons be stood over pending the determination of the application for special leave to appeal in proceeding No 253 of 2012 in which the applicant ultimately challenged the making of the sequestration order by which he was made bankrupt.  His Honour granted leave for either party to restore the summons on seven days’ notice to the other after the determination of that other special leave application.  That other special leave application was dismissed by Justices Heydon and Bell on 15 February 2013.  Neither party having sought to restore the summons since 15 February 2013, it has been brought on today at the direction of a deputy registrar.

Mr Street SC appears for the applicant and Mr Shields appears for the first respondent.  Mr Street also appeared for the applicant at the hearing of the other application for special leave to appeal.  After that application was dismissed he said this in respect of the current application for special leave to appeal with which I am concerned:

It is a matter which now obviously cannot proceed.

He added that the application would have to be dismissed. He was plainly right. The operation of section 60 of the Bankruptcy Act is to render any order for reinstatement futile.  In those circumstances, I order that the summons filed by the applicant on 31 July 2012 be dismissed.  

AT 10:08 AM THE MATTER WAS CONCLUDED