Swift, D. v Westpac Banking Corporation

[1994] FCA 943

943 9

JUDGMENT No. ....., ........ ,J ,-L

FEDERAL COURT OF AUSTRALIA

NEW SOUTE WALES REGISTRY

GENERAL DIVISION

*

BETWEEN:

DQRIS SWIFT and ANOTHER

Applicant

AND:

WESTPAC BANKING CORPORATION

and ANOTHER

Respondent

RECEIVED

CORAHr SACKVILLE J.

PLACE	a	SYDNEY
DATE :	21 NOWHEER 1994

HIS HONOUR: This is an application that was commenced in the

Queensland District Registry of this Court by the filing of an application accompanied by a statement of claim. Each of these documents was filed on 31 October 1994. In the application the applicants seek declarations that they are entitled to have certain mortgages over land near Rockhampton in Queensland set aside. The application also seeks a declaration that no power of sale has arisen for the benefit of the respondents who are identified in the application as Westpac Banking Corporation as the first respondent and Australian Guarantee Corporation Limited as the second respondent. Relief is also sought under the

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provisions of the Trade Practices Act 1974, including damages.

The application foreshadowed a claim for interlocutory relief, by which the respondents, or either of them, would be restrained from taking any further action in reliance upon the mortgages pending the determination of the proceedings. It appears that the application and etatement.of claim were served on the solicitors for the first and second respondents on 11 November 1994. It also appears that a receiver was appointed to the property of the applicants and that the receiver attended the property on 14 November 1994. As I understand the position the receiver, M r Ross Andrew Duss has not yet been added as a party to the proceedings although he is named in a notice of notion.

The matter came before the Court in Sydney before Lindgren, J on 14 November 1994 at 4 pm. At that point the matter was stood over until 9.15 am on 15 November 1994. On that day, which is Tuesday of last week, it appears that the first and second respondents were represented by a solicitor and gave undertakings in terms of paragraph 5 of the statement of claim.

RECORDED NOT TRANSCRIBED

In any event, an undertaking was given in terms of injunctive relief sought until 5 pm today, 21 November 1994.

Today the first and second respondents have appeared by Mr Sheahan of counsel. Mr Sheahan has also indicated that he

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appears or represents Mr Duss, and also a Mr Richard John Dennis, who has been nominated in a notice of motion as a third respondent although not yet,. formally joined as a party to the proceedings.

Mr Sheahan indicated initially that it was his desire to have the

matter determined at this stage as an application for injunctive relief only until 2 December 1994. This was a reference to the terms of the notice of motion that apparently had previously been filed whereby the applicant sought relief pending return of the matter for directions before the Court in Brisbane on 2 December 1994. Mr Sheahan indicated that it was his preference that he have another opportunity, as it were, to adduce evidence prior to any order being made if that was the determination of the Court until the determination of the final hearing of the matter.

I pointed out that there were some difficulties in this course

of action because it would expose both the parties and the Court to two interlocutory hearings before the matter could be determined pending the final hearing of the proceedings, which would presumably take place at some stage next year.

I also inquired of Mr Duncan as to why the matter was in this registry. There is affidavit evidence to indicate that there were difficulties in having the matter listed even for urgent interlocutory relief before this Court in the Queensland District Registry. It was for that reason that the proceedings were brought before the Federal Court in this registry. Mr Sheahan

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indicated that his knowledge of the position of the Court in Brisbane tended to support the proposition that it would be difficult to find time for, an interlocutory hearing within a relatively short time in the Queensland District Registry.

The matter has been assisted by Mr Sheahan giving consideration to the position in which the clients find themselves, and the most appropriate course to adopt in dealing with the matter. He has indicated that he would wish to have more time in order to deal fully with the matters that would be raised at a hearing for interlocutory relief pending the final determination of the proceedings. He has also submitted that the appropriate course would be for the matter to be determined in the Queensland District Registry if there were an opportunity for a relatively early hearing on the application for interlocutory relief. He has indicated that his client would be prepared to continue the undertakings or continue the relief already granted pending a hearing of the application for interlocutory relief providedthat that hearing could be afforded very early in the New Year.

It seems to me that the case ought to be dealt with by one interlocutory hearing alone. Indeed it would be preferable for the entire matter to be dealt with by an expedited final hearing, but it appears unlikely that the Court list will permit this to be done within the next few months. It also seems to me that on the basis of a number of matters pointed out by Mr Sheahan, the proceedings ought to be transferred or as he puts it restored to the Queensland District Registry. This is a matter that was

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commenced in the Queensland District Registry in the first place and was only brought to New South Wales by reason of the listing difficulties to which I have already referred.

Mr Sheahan has pointed out that evidence will be required either

on the application for interlocutory relief or a notice of motion that he has now filed in court from witnesses who are located in Queensland. If the proceedings are to be heard in New South

Wales, it will involve those witnesses travelling to Sydney for the purposes of cross-examination, and Mr Sheahan has also pointed out that on the available material there may be doubts if the respondents are successful whether recovery of costs will be feasible from the applicants.

Mr Duncan has indicated that although not necessarily accepting

all the matters that have been put by Mr Sheahan, he would regard

the transfer of proceedings as a matter for the Court.

My view on this aspect of the case is that it is certainly preferable for the matter to be transferred or restored to the Queensland District Registry. However, it would be unfair on the parties to do that if there were not an opportunity for a reasonably early hearing of the application for interlocutory relief and the notice of motion that has now been filed in Court by the respondents.

Inquiries have been set in train to ascertain whether a hearing date can be obtained in the Queensland District Registry but as

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yet those inquiries have not born fruit. What I propose to do is this. I will make directions as to the conduct of the interlocutory aspect of the-proceedings including the notice of motion that Mr Sheahan has filed in Court. I will indicate that if an early hearing date of a half day to a day is available in the Queensland District Registry then I will direct the transfer of the proceedings to the Queensland District Registry.

If however, such a date is not available, then I would, subject

to consultations with the registry, list the matter for early in the new year, that is in February 1995 in this registry of the Court. I would not wish to detain Mr Sheahan or those instructing him and so what I will do is arrange for my associate, once the position becomes clear to notify the respective solicitors as to what the position is so that dates can be finally determined and the location of the place for hearing also determined.

The directions that I make are as follows. In relation to the application for interlocutory relief by the applicants I direct the applicants to file and serve any further affidavits upon which they rely on or before Monday 5 December 1994; I direct the respondents to file and serve any affidavits upon which they

rely in connection of the notice of motion - the application for

interlocutory relief on or before Monday 12 December 1994; I direct the applicants to file and serve any affidavits in reply on or before 16 December 1994. I will grant liberty to either party to apply on 48 hours notice. It may be necessary for

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example to vary that timetable depending upon the hearing date

that becomes available.

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RECORDED : NOT TRANSCRIBED

In relation to the notice of motion I will make the same orders in substance but I will repeat them just for the sake of clarity:

that is I direct the applicants in the proceedings - that is the respondents to that notice of motion - to file and serve any

affidavits upon which they rely in opposition to the notice of motion on or before 5 December 1994. Any affidavits in reply on behalf of the applicants on the notice of motion, that is the first, third and fourth respondents in the proceedings should be filed and served on or before 12 December 1994.

I have referred earlier to the fact that the persons I have

described as the third and fourth respondents have not yet been formally joined in the proceedings. Mr Sheahan as I follow him has no objection to that course being adopted. I therefore direct the applicants to file an amended statement of claim identifying Richard John Dennis as third respondent and Ross Andrew Duss as fourth respondent on or before 28 November 1994. To the extent that the applicants require leave to add Mr Dennis and Mr Duss as respondents to the proceedings, I grant that leave to the applicants.

On the notice of motion as on the application for interlocutory relief I grant the parties liberty to apply on 48 hours notice.

RECORDED : NOT TRANSCRIBED

*

I note the undertaking given by the first and second respondents and by the parties who will become the third and fourth respondents upon the filing of the amended application and statement of claim and I note that that undertaking operates until further order of the Court.

RECORDED NOT TRANSCRIBED

I will reserve the question of costs and as I say my associate will contact your solicitors to let you know what the position is.

I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

s o i a t : / .h fa. I'

Dated: 7 December, 1994

Heard:

21 November, 1994

Place:

Sydney

Decision:

21 November, 1994

Appearances:

Mr M. Duncan, instructed by Carroll and

Knudson, appeared for the applicants.

Mr J. Sheahan instructed by Feez Ruthning,

solicitors, appeared for the respondents.