Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd & Ors

[2017] HCATrans 39

[2017] HCATrans 039

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S199 of 2016

B e t w e e n -

SOUTHERN HAN BREAKFAST POINT PTY LTD (IN LIQUIDATION)

Appellant

and

LEWENCE CONSTRUCTION PTY LTD (ACN 155 305 507)

First Respondent

IAN HILLMAN

Second Respondent

AUSTRALIAN SOLUTIONS CENTRE

Third Respondent

Pronouncement of orders and reasons for decision

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 FEBRUARY 2017, AT 12.00 PM

Copyright in the High Court of Australia

HIS HONOUR:   In this matter I publish orders and reasons and I direct that the reasons be incorporated into the transcript.

On 21 December 2016, in Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Pty Ltd [2016] HCA 52, the Full Court of the High Court allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The orders then made by the Full Court included an order that the first respondent repay to the appellant the sum of $1,276,000 paid to the first respondent on 7 October 2015, together with interest since that date.

By summons filed on 9 February 2017, the appellant seeks enforcement of that order by way of an application for the issuance of a writ for levy of property, pursuant to section 77M of the Judiciary Act 1903 (Cth).

On 14 February 2017, I directed that the appellant file written submissions providing any reasons why the application should not be remitted to the Supreme Court of New South Wales.  Submissions in compliance with that direction were filed on 17 February 2017.

Having reviewed those submissions, I consider it appropriate that the application be determined on the papers pursuant to rule 13.03 of the High Court Rules 2004 (Cth) and that the matter to which the application relates be remitted to the Supreme Court of New South Wales under s 44(1) of the Judiciary Act.

The appellant does not dispute that the power of remitter is available or that, consistently with my reasons for judgment in Aristocrat Technologies Australia Pty Ltd (ACN 001 660 715) v Allam (2016) 327 ALR 595 at 599 [12]; [2016] HCA 3, the power should ordinarily be exercised in a case where enforcement of an order of the High Court is or is likely to be contested.

The appellant submits that the power of remitter should not be exercised in this case because it is unlikely that the first respondent will contest enforcement.  The appellant submits that the first respondent would face “considerable procedural obstacles” to contesting enforcement including, it submits, in re‑enlivening an adjourned arbitration between the parties and obtaining leave of the Supreme Court to commence proceedings against the appellant as a company in liquidation.

In my opinion, the appellant’s submissions do not disclose any reason why a remitter of the application is not appropriate in this case.  The likelihood that a party will contest enforcement is a factor tending strongly in favour of a remittal.  But I do not consider the prospect that a respondent will not contest enforcement to be a significant factor weighing against such a course.

I sought to explain in Aristocrat at 599 [12] that remitter to the Supreme Court of a State or to the Federal Court of the subject‑matter of an application for remedies for enforcement of a judgment of the High Court neither enhances nor diminishes nor otherwise alters the rights or obligations of the parties and can ordinarily be expected to result in procedural efficiencies. Those considerations combine to recommend remitter as the appropriate exercise of the High Court’s discretion in the ordinary course. That is the course I propose to take here.

The appellant’s ex parte application resulting in an order that the matter be remitted to another court, the respondent should be told what is occurring.

Accordingly, I make the following orders and directions:

1.The application made by way of summons dated 9 February 2017 be determined without listing it for hearing.

2.Remit the matter of the claim of the appellant pursuant to s 77M of the Judiciary Act 1903 (Cth) for remedies for enforcement of the judgment of the High Court of Australia given on 21 December 2016 to the Supreme Court of New South Wales.

3.The matter be dealt with in the Supreme Court of New South Wales as if the steps already taken in this Court had been taken in that Court.

4.The Registrar of the High Court forward to the proper officer of the Supreme Court of New South Wales photocopies of the following documents filed in the High Court:

(a)the judgment and order of the High Court of Australia dated 21 December 2016;

(b)the appellant’s summons dated 9 February 2017;

(c)the affidavit of Dragan Ljubic affirmed 9 February 2017; and

(d)these orders and the transcript of these reasons for decision.

5.The applicant serve on the respondent as soon as practicable copies of the documents referred to in direction 4(b), (c) and (d).

The Court will now adjourn.

AT 12.00 PM THE MATTER WAS CONCLUDED