Rose v Meriton Apartments Pty Limited and Ors

[2011] HCATrans 226

[2011] HCATrans 226

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

Application for reinstatement

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 SEPTEMBER 2012, AT 9.54 AM

Copyright in the High Court of Australia

___________________

MR A.W. STREET, SC:   May it please the Court, I appear with my learned friend, MR A.K. FLECKNOE‑BROWN, for the applicant.  (instructed by Margiotta Solicitors & Attorneys)

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

HIS HONOUR:   There is a submitting appearance for the third, which is the Industrial Court of New South Wales.  Yes, Mr Street.

MR STREET:   Your Honour, there is an affidavit in support of the summons for a reinstatement of Mr Anthony Steven Margiotta on 31 July.  I rely on that affidavit, your Honour.

HIS HONOUR:   What is the position with your client’s application for special leave in respect of the sequestration order?

MR STREET:   That has been the subject of the filing of an application and a draft notice of appeal.  The summary of argument is yet to be filed.  It will be filed shortly, your Honour.  It relates to the destruction of the subject matter of the proceedings.

HIS HONOUR:   It strikes me that your restoration summons – if I can use that expression – probably cannot be effectively dealt with until the determination of the special leave application on the sequestration order, because whether or not your client has had his estate sequestrated must bear upon these questions of reinstatement, I think.

MR STREET:   I think it does, your Honour.  The two are intertwined, albeit there is an issue relating to the assignment, and I will not trouble your Honour with it now.

HIS HONOUR:   Yes, I noticed that.  What do you say about that, Mr Shields?

MR SHIELDS:   May I take a brief instruction, your Honour?

HIS HONOUR:   Yes.  The reason why I mention it is that it looks as if the debt on which the sequestration order was made arises out of this present round of litigation, which is long running, is it not, between these parties?

MR SHIELDS:   It was the costs order from the special leave application run in respect of the attempt to strike out my client’s proceedings in the Court of Appeal.  So it was the cost order in this Court following the failure of that special leave application.

HIS HONOUR:   Yes.  That is why it seemed to me the reinstatement question is linked to the question of whether the bankruptcy itself arose out of the relitigation which is sought to be reinstated, if I could put it that way.  I have got no final view on it, but that seems to me to be relevant.  This litigation has been going for years, has it not – five or six years?

MR SHIELDS:   It is very longstanding, your Honour.

HIS HONOUR:   No exhortation I can make will have the slightest effect, so I will not make one.  I think the appropriate course then is to stand over the summons filed on 31 July 2012 pending the determination of the special leave application in No. S253 of 2012.  The costs of the day will be cost of the summons.  According to the outcome of the special leave application, it will be in the interests of one or other of you to restore the summons, I would think.

MR STREET:   Yes, your Honour.

HIS HONOUR:   The summons can be restored on seven days written notice by either party after that determination of the special leave application.

MR STREET:   If the Court pleases.

MR SHIELDS:   If the Court pleases.

HIS HONOUR:   I will now adjourn.

AT 9.58 AM THE MATTER WAS CONCLUDED