Trepan Investments Pty Ltd v Swanston Mortgage Pty Ltd

[1993] HCATrans 378

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml30 of 1993

B e t w e e n -

TREPAN INVESTMENTS PTY LTD

Applicant

and

SWANSTON MORTGAGE PTY LTD

First Respondent

and

REGISTRAR OF TITLES

Second Respondent

Application for special leave

to appeal

Trepan 1 9/12/93

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 9 DECEMBER 1993, AT 4.02 PM

Copyright in the High Court of Australia

MR A.K. PANNA:  If the Court pleases, I appear for the

applicant. (instructed by Macpherson & Kelley)

MR R. McK. ROBSON, OC: If the Court pleases, I appear with

MS G.F. McMILLAN on behalf of the first-named

respondent. (instructed by Cornwall Stodart)

DAWSON J:  I shall announce that the Deputy Registrar of the

High Court has received a letter dated

29 October 1993 from the Registrar of Titles, the

second-named respondent, advising that he does not

wish representations to be made on his behalf at the hearing of this application. Yes, Mr Panna.

MR PANNA:  Can I hand to the Court an outline of the

applicant's submissions. If the Court pleases, the

central issue in this appeal is whether the

undoubted equitable right of a mortgagor to set

aside the sale of property entered into by the

mortgagee, in breach of the mortgagee's duty of

good faith, and having regard to the interests of

the mortgagor, is an interest sufficient to found a

caveat.

TOOHEY J: Are you using "equitable right" there, I take it,

Mr Panna, to mean a right in equity, not an

equitable right in the sense of an equitable

interest.

MR PANNA:  Your Honour, that is interchangeable.

TOOHEY J: Well, maybe.

MR PANNA:  In one sense, Your Honour, whenever you are

seeking the setting aside of the contract of sale entered into by the mortgagee you are seeking the assistance of equity, so therefore it is a right in

equity that you either have or do not have. The

distinction that is drawn by the cases and the

related investments is whether the right is one of,

say, a mere equity, or it is in fact a full

equitable interest. The issue in this case is

whether the distinction, (a) ought to be drawn and,

(b) whether it matters for the purposes of

establishing a right to lodge a caveat one ought to

draw such a distinction. The distinction between a

mere equity - - -

TOOHEY J: Well, yes. I rather took you to be saying by way

of answering my question that it did not matter how

you described it.

MR PANNA:  Yes, Your Honour. At this point it does not

matter, unless you want to characterize the right

itself. If you want to characterize it then it may

be necessary then to try and place that right in

Trepan 2 9/12/93

some category, much as the Court in Latec

Investments did, to characterize it either as a

mere equity or an equitable right, or, as

Mr Justice Menzies approach in the Latec

Investments case, it was a characterization dependent upon the purpose for which he sought to

characterize it.

TOOHEY J:  Can I just ask you this - and I accept that it is

not necessarily an answer to the application for special leave - but could the applicant have not

achieved everything that it seeks to do by an

injunction, a restraining the registration of any

transfer, an injunction binding the Registrar of

Titles as well as the proposed purchaser?

MR PANNA:  Yes, Your Honour. The mortgagor could do that,

but that would be true of most cases, in fact, when

a caveat is lodged. You have a right which is

sufficient to found an injunction but it does not

answer the question:	do you have, in fact, a
caveatable right.

DAWSON J:  Or was it that you would have had to have brought

in the mortgage moneys if you had employed that

method?

MR PANNA:  With respect, that may be one - yes, it may be

necessary if the Court were to so order. It does

not follow that the Court will always order the

bringing in the money. In fact, when a caveat is

lodged and the matter does come before the Court,

and the Court comes to deal with a caveat, that is,

an application has been brought either to remove

the caveat or when a dealing has been lodged,
thereby activating the requirement that the
caveator takes steps to establish the caveat and
the matter comes before the practise court - that

is the way it normally comes before the court -

then the court has the power, and in fact it does

so as a matter of practice on occasion require the

bringing into court such moneys as would satisfy

the court maybe - - -

DAWSON J: It is almost invariable, is it not?

MR PANNA: With respect, no, Your Honour. It is a matter

that depends upon circumstances before the Court.

For example, the decision Re Cross & National

Australia Bank Ltd, one of the Queensland cases
upon which we rely, support the proposition that

the mortgagor does have a caveatable interest.	The
court did nor require the lodging of the outstanding debt as a condition for - - -

TOOHEY J:  If the allegation is that you have been deprived

of your interest by fraud, for instance, the court

Trepan 3 9/12/93

might be slow to order that the moneys be paid into

court as a condition. But just coming back to my

question, and I understand that it is not an answer

to the application, but would this not all have

been avoided by an action seeking an inJunction to

restrain the lodging of any instrument of transfer?

MR PANNA: That is a possible alternative remedy available

to a mortgagor in any case, so the answer to

Your Honour's question is that that is a possible

route that could be taken. It was not taken in

this case because under section 89, and the

Transfer of Land Act, a mortgagor in the

circumstances, we say, has a right to lodge a
caveat, and it is not a reflection upon the act of

taking that step. That is, he may choose to take

that step, or he may choose to take the route of -

TOOHEY J:  Of course, if your argument is correct, but you

are met with an argument on the other side that the

applicant in this case has no caveatable interest.

MR PANNA: That is the very issue, we submit, is why the

Court should take this matter on special leave,

because that is the very difficulty one faces in

this area. We say that is the point to be

determined by this appeal, and that is, is there a

caveatable interest?	And what we say is, Latec
Investments - - -

TOOHEY J:  Of course it is, Mr Panna, because the situation

has been brought about by the applicant taking a

form of proceedings it has. All I am putting to

you is that this very interesting and, perhaps,

important proposition could have been avoided by an

injunction restraining the lodging of an instrument

of transfer.

MR PANNA:  I agree with Your Honour, in so far as

Your Honour said to me, "You could have taken the

route of an injunction", that is true, Your Honour.

TOOHEY J: Could still do, I suppose.

MR PANNA:  We could still do that, or as a caveat is, in

fact, a form of statutory injunction, which this

Court in fact has said as recently as J & H

(Holdings) that a caveat is a form of statutory

injunction to maintain the status quo pending a

resolution of the underlying dispute between the

parties. When Your Honour asked me, "You could

have sought an injunction", we say, well, in one

sense we have, we have sought a statutory

injunction. That is the way a caveat has been

characterized, and that is why we say we are

entitled to take this route.

Trepan 9/12/93

However, once a caveat is lodged and

registered, the issue about whether there should

be a payment in by the mortgagor or not is raised

at the time when the caveat is sought to be

maintained or sought to be removed. So if

Your Honour is troubled by the fact that we have

taken this route or taken an injunction maybe we

do not have to make a payment in, if that is what

Your Honour is getting at - - -

TOOHEY J:  No, no. I am only troubled that you are

troubling us when there seemed to have been an

alternative procedure that would not have made it

necessary to approach the Court for special leave.

But at any rate, you are here now.

MR PANNA:  Your Honour, we took that course because at the

time we thought that was the most appropriate

course, and quite often - - -

DAWSON J: There is a certain simplicity about it too, if

you are right.

MR PANNA:  Yes, Your Honour, in that it is a form of

statutory injunction, anyway, and one will come to

argue fairly similar issues whether you take an

injunction - - -

TOOHEY J:	The question is a fairly narrow one, is it not?
MR PANNA:	Yes, Your Honour.
TOOHEY J:	I am not suggesting it is free from difficulty,

but it is one which in which it is possible to

state the arguments on either side in fairly short

compass, I would have thought.

MR PANNA:  Yes, Your Honour. In fact, I have sought in my

outline of submission to state it as simply as

that. In paragraph 2 of my outline I submit they

are the four major issues being raised by these

facts, and in particular, if I may - the caveat

Transfer of Land Australia and for all relevant purposes it is, in fact, identical. So the issue of whether there is a caveatable interest in these circumstances will

provision under section 89 of the

affect the way each jurisdiction will deal with

persons in the position of the mortgagor who lodge

caveats.

DAWSON J:  And you say there is a conflict of authority

which requires some resolution.

MR PANNA:  Yes, Your Honour, andin fact is a very clear conflict of authority now between the States. We

have got two, Queensland and New South Wales going

Trepan 9/12/93

on way; we have got Victoria going another way.	If
you count heads at the moment, Your Honour, you have got three judges saying, "Yes, you do have a
caveatable interest", including Mr Justice Eames,
who first dealt with the matter, and we have three
judges say, "No, you don't have a caveatable
interest.", being the Full Court.	So there is the

dilemma now being faced in these various

jurisdictions.

One point that the Full Court did not deal

with, almost dismissed it, was the question whether
a mortgagor, by his status as owner of a property,

has a right to caveat. And that is a very

important point, especially now that the court has fully accepted the indefeasibility principle. The

argument is that someone who is a registered

proprietor of the land ought to be able to caveat
to prevent any contrary dealing being lodged
without his knowledge, which has the effect of

depriving him of his legal title.

The Victorian Full Court in Davies v Herbert

in 1885 has said that it is possible for the owner

of the land to lodge a caveat. In fact it is a

very good reason why an owner of the land should be

able to lodge a caveat to protect himself. Now

that we have had, since the developments in Fraser

v Walker and Breskvar v Wall, we have had

situations where the owner may be deprived of his

land through dealings being registered without his

knowledge.

One of the issues being raised by this appeal

is whether the owner of the land has a right to

lodge a caveat. We say that the Full Court of the

Victorian Full Court has said, perhaps obiter,

that yes, it does have a right to lodge a caveat

and we say another ground upon which this mortgagor

is entitled to lodge the caveat is the fact that he

is the registered proprietor of the land. As to the reasoning by His Honour

Mr Justice Brooking, who delivered the judgment of

the court, we say that His Honour's reasoning was

incorrect, with respect to His Honour, in that what

he has taken out of Latec is he has followed

Mr Justice Kitto's line of argument and applied

that and has said, without any real explanation, as

to why in fact it was a matter of priority dispute

and not a matter of divisibility.

Yet, one would ask the question: where is the

priority question before the court, where was the

priority question here? Because if His Honour had

taken the line of argument analysed by His Honour Mr Justice Menzies in Latec Investments, then the

Trepan 6 9/12/93

conclusion would be reached that this, in fact, is

not a priority dispute, it is in fact a more basic
question, it is more a question of divisibility.

That would lead, on the flexible approach of

Mr Justice Menzies in Latec Investments, to a

conclusion that this right, the mortgagor's right

to set aside the sale, is in fact in the nature of

an equitable interest, and that is enough to

support a caveat.

DAWSON J:  Mr Panna, just before you go any further, what do

you say as to the stay and the continuation of the

stay?

MR PANNA:  In my submission the stay should continue, for

this reason: the mortgagee has possession of a
property, the mortgagee has had possession of this

property since 1992. The property is not going to

go away, it is not a wasting asset, it is something

that will be - - -

DAWSON J:  It may go away, from your point of view if there

is not a stay, I suppose.

MR PANNA:  Indeed, Your Honour, if there is no stay the

whole point of the appeal will, in fact, be

rendered nugatory. If the caveat is removed

because there is not a stay then there is no

purpose left for the appeal because what

Your Honours say will not revive the caveat, once

the caveat is returned to the caveator as the

current order of the Full Court requires, then the

whole purpose of the appeal will be rendered

nugatory.

TOOHEY J: Is that really right? After all, as I understand

it, it is the amount for which the mortgagee

proposes to sell the land which has given rise to

this litigation. It is not said, is it, that there

is no power in the mortgagee to exercise the power

of sale.

MR PANNA:  Indeed, no, Your Honour. That is why the caveat

is very narrowly framed, because it depends upon

the right to set aside that transaction. So if

this transaction were, for example, not proceeded

with by the mortgagee then there would be no

further purpose of the caveat. The caveat was

specifically drawn to deal only with this matter.

TOOHEY J:  I was really looking at the converse: if the

mortgagee went ahead and exercised the power of

sale because there was no stay, you would have a

remedy on your view, a remedy of damages, assuming

you could make good the case of sale at under

value. Would you be prejudiced in recovering the

amount of that undervalue.

Trepan 9/12/93

MR PANNA:  Yes. Indeed, Your Honour. The evidence in the

court book shows that this particular respondent

probably does not have the assets to come up with
any damages. In fact, it is dependent upon its

bankers continuing to support it. There are many

cases where businesses out there are depending upon

their bankers to support them. If the bankers

withdraw their support this respondent will not be

able to make good the claim. That is the real

dilemma facing someone in the position of the

mortgagor.

DAWSON J:	I think perhaps we might call on Mr Robson, at this stage, Mr Panna. Yes, Mr Robson?
MR ROBSON:	If the Court pleases. Your Honours, the

undisputed position is that the applicant owes in

excess of some $2 million to my client and nothing

has been paid off that debt for some considerable

time and these proceedings have been taken which

have effectively prevented my client from realizing

of security. We say, first of all, that there is

nothing special in this case, there is nothing that
needs the attention of the High Court to do justice

between the parties. As Mr Justice Toohey pointed

out, injunction proceedings were available and it

is fairly - - -

DAWSON J: There is the conflict of authority as to

whether Mr Panna's client has a caveatable

interest.

MR ROBSON:  Yes, there is. What the High Court has to

decide is, is it appropriate in this case to

resolve that conflict, and what I am putting at the

moment is, first of all, that there is nothing

special in this particular case, that this

applicant could have sought an injunction and the

normal costs of that injunction would have been

to - - -

GAUDRON J: But will that not be the same in every case

where the issue is raised?

MR ROBSON: This issue is raised?

GAUDRON J: Yes. Will it not? I mean, in every case, that

will be the situation?

MR ROBSON: Hopefully, in - not necessarily. In other cases

there may well have been steps taken to protect the

position of my client by requiring a payment into

court of the disputed sum. One can infer that if

that had happened we would not be here today. We have got to this position where the applicant has

been - - -

Trepan	9/12/93
GAUDRON J:	Why would you be paying into court the disputed

sum when there is a sale in prospect?

MR ROBSON:  Because it is the normal procedure where - - -

GAUDRON J: Perhaps I misunderstand you about the disputed

sum. What do you say the disputed sum is, the full

mortgage debt?

MR ROBSON:  No, I should not say the disputed sum, I should say the sum of the mortgage, which is not disputed.

GAUDRON J: What, you want to get back paid and you want to

sell it too?

MR ROBSON:  No. We want that paid in as the price of

stopping us from selling it.

GAUDRON J: But it is not a question of stopping you from

selling it absolutely, it is a question of stopping

you from selling it in this particular transaction.

MR ROBSON:  Yes, we do have a contract and we are bound

under that contract until - if the purchaser seeks

to compel us to complete, we are bound to complete.

We have not been released from that contract, we

cannot sell it to somebody else.

GAUDRON J: Well then, it sounds very strange to me that you

should ask for the full amount of the

mortgage - - -

MR ROBSON:  The full amount of the mortgage is not so that

we can go ahead and sell it, the full amount of the

mortgage being paid into court is the price of us

being stopped from selling it so that this matter

can be determined.

GAUDRON J: But that is not the price.

MR ROBSON:

No, I meant the price in terms - that is the

terms upon which the court would restrain my client

from realizing on the security is that the secured

sum has to be paid into Court.

GAUDRON J:  I can understand, in circumstances where there

is an actual contract, an undertaking as to

damages, which I think you have got as the price of

the stay, but I cannot understand that you should

have the whole of your mortgage sum, plus your

right to sale.

MR ROBSON:  The submission that the applicant should pay

into court the amount of the mortgage debt is on

the basis that the sale will be restrained from

proceeding and that is what is normally ordered

when an injunction is granted, as was pointed out,

Trepan 9 9/12/93

and that is that·if a mortgagor wishes to prevent a
sale, and prevent the security from being used as

security, then they must put up alternative

security, which is normally the amount of the

mortgage debt.

GAUDRON J:  I know the rule. What I am suggesting to you,

that that rule itself is open to criticism, very

much so. That one can readily understand an

undertaking as to damages or even a preliminary

assessment of damages, but the notion that you pay

out the full mortgage debt is a little peculiar,

more particularly when one assumes that if they

could pay out the full mortgage debt they would not

be in this position anyway.

MR ROBSON:  They would, in effect, be seeking to redeem the

mortgage.

GAUDRON J:  So your argument, in the end, goes around to a

situation: because you owe money, in a practical

sense, you cannot enforce your right.

MR ROBSON:  Can I come at it from another way, another

point, if I may, and that is that there is no
prejudice likely to be suffered by the applicant if

the sale proceeds. The Court is aware that the

mortgage debt is something in the order of

$2 million and interest has been accruing.	The
alleged under sale is in the order of half a

million dollars - I think the contract price is

$1.56 million and there is an allegation it should

have been sold for two.

So that the alleged damage is far less than

the amount owing under the mortgage, so at the end

of the day, if it were found that the applicant had

suffered damage if this sale was completed, then

there is more than enough to satisfy the damages,
the amount of the mortgage debt would be reduced by

the amount of the damage.

TOOHEY J: That depends on the other liabilities of the

mortgagee, does it not? What you are advancing,

Mr Robson, seems a good argument for the converse:

that the mortgagee pays into court. Having sold
the property, and as a condition of being able to

sell, the mortgagee pays into court the difference

which the mortgagor claims to be entitled to by

reason of sale at under value.

MR ROBSON:  At the moment the applicant owes my client

$2 million and the applicant says that if this sale

is completed it may suffer damages to the extent of about half a million dollars. What I am submitting

is that those sums can be set off so that at the

end of the day, if it were established that the

Trepan 10 9/12/93

property had been sold for too little, then my

client would not receive its $2 million, it would

receive that less the damage which had been

sustained by the applicant, because his property

had been sold for too little.

But the damages that he is claiming is far less than what he owes my client. He says, "You

have sold my property for half a million dollars

less than it was worth, but on the other hand I owe

you $2 million", and if he is successful in his

arguments, he will only be required to pay the

balance. No prejudice will be suffered if the sale

is allowed to be completed.

GAUDRON J: Well that really depends on fixing the proceeds

of sale with a trust for any damages suffered by a

mortgagor. And that gets very close to a

caveatable interest, I would have thought.

MR ROBSON:  That is another issue I have not even got to, at

the moment, the caveatable interest. I was really addressing the Court at the moment on whether this

is a special case and is one which warrants the

High Court giving it time. I will come in a

moment, if I may, to whether there was any manifest

error in the decision. But my two points are, if I

may put them again, is that the injunction

proceedings were available and still are available

and therefore this Court - it is not necessary to

involve itself in this dispute when the normal

procedure could have been and can still be

followed.

And the second thing is, if this sale proceeds

then the applicant will not suffer any damage

because it owes my client well in excess of any

damages it is claiming from my client. It is just

a simple matter of mathematics and appropriate

orders could be made to protect the proceeds if the

sale is completed.

ground, we say for those two reasons the Court So just on a discretionary

should not grant special leave.

As to the point raised by Mr Justice Dawson

that we have, on the one hand, a Full Court

decision which says that a mortgagor who seeks to

restrain the completion of a sale does not have a
right to lodge a caveat and we have two, possibly

three, judgments at first instance. I think one of

the judgments in fact deals with the situation

where the sale had been completed - but we do not

think we need to quibble about this - there are at

least two State decisions.

First of all, we have the position that you have a Full Court decision, as opposed to two

Trepan 11 9/12/93

single justices, so on that basis it is not as
serious a conflict as if you had two Full Court

decisions. Secondly, in our respectful submission,

the Full Court's decision was manifestly correct

and obviously correct and is not really subject to

any doubt. The Full Court in Forsyth v Blundell

clearly established that a mortgagor who seeks to

restrain the completion of a sale by the mortgagee,

which is improper, is seeking to prevent his

existing property from being wrongly deprived, that

is, he has the rights as the mortgagor, and his rights as mortgagor are not taken away from him

unless there is a proper sale. And if there is an

improper sale and someone is purporting to take

away his rights, then he can seek by injunction to

prevent his existing rights from being taken away.

So the first thing is that as the mortgagor he has

an interest in the land, and that arises from him

being a mortgagor, and it exists prior to the sale.

An improper sale takes place, he has a right

in equity to apply to the court for an injunction
to protect his existing property rights, his
property rights, and that right to apply to the
court, a court of equity, to protect his existing

property rights, does not constitute in the words

of section 89, any estate or interest in the land.

It is not an interest in the land. He has his

interest in the land and the improper sale gives

him a right to apply to court - not to set aside

the sale, as my learned friend said in his opening

remarks, but as he says in his written

submisasions, a right to prevent the completion of

the sale.

As the Court may remember in Forsyth v

Blundell the Full High Court merely restrained the

completion of the sale, they did not set aside the

contract of sale, they said the rights between the

mortgagee and the purchaser had to be sorted out

between them. So they did not set aside the sale,

they merely restrained the completion.

Now I realize against those arguments, you

said, "Well, you have still got the Full Court in

conflict with the two State judges", but in my

respectful submission the decision is not so

attended with doubt that in the circumstances of
this case, where you have got the routes available

through injunction and no damage will be suffered

because of the fact that Mr Panna's client owes my

client $2 million, that in those circumstances this

Court should not grant special leave.	They are my
submissions, Your Honours.

Trepan	12	9/12/93
DAWSON J:	The Court need not trouble you, Mr Panna.	I take

it that your undertaking as to damages can be

continued?

MR PANNA:  Yes, Your Honour.

DAWSON J: Very well. There will be a grant of special

leave.

You did not address the question of the stay.

It follows, does it?

MR ROBSON:  No, I wanted to say that, of course, we would

seek the extension of the undertaking and I also do
seek a direction that the applicant pay into the

Court, or provide alternative security, for the mortgage debt. I seek the normal rule which is
made where a person seeks to challenge a mortgage.

Forsyth v Blundell, and Inglis v Commonwealth Bank,

and many others establish that the High Court has

on many occasions upheld that principle.

DAWSON J: There is a whole article, just recently, that

deals with the problem.

MR ROBSON: Unfortunately, I have not read that article.

GAUDRON J: Do you have any fall-back application, as it

were, in the event that your application that the

mortgage sum should be paid into Court was

rejected?

TOOHEY J:	Did you say paid into Court, or secured?
GAUDRON J:	Or secured, yes.
MR ROBSON:	The Full Court addressed it at page 44, and I do

not wish to take up too much of your time, I

realize you have been here -

GAUDRON J: What I am asking you is: assume for the moment

that that application is rejected.	Assume it is
rejected.

MR ROBSON:	I will assume that.
GAUDRON J:	Is there some other position that you would then

advance?

MR ROBSON:  It was to pay into Court or the giving of

security for the amount due under mortgage. In

view of the fact that an undertaking as to damages has been given and my client is exposed to damages

for breach of contract, and to give flesh to that

undertaking as to damages the Court should,

perhaps, require security to be given to back it

up. At the moment we have got a company which

Trepan 13 9/12/93

cannot pay its mortgage debt, it has not even

offered a penny, giving an undertaking which is

obviously not worth the paper - it is obviously

worth very little. So we would ask the Court to

impose some sort of security requirement to give

backing to that undertaking.

TOOHEY J:  You might want an undertaking, too, that the

appeal be prosecuted with all reasonable speed.

MR ROBSON:  Yes, yes. I was thinking in terms of monetary

matters.	But perhaps an order for half a million
dollars may cover the interest and damages.	It is
difficult to assess, but in my respectful

submission some sort of protection should be given

to my client who is - it is not disputed that they

are owed $2 million, interest is accruing and they

cannot sell the property.

GAUDRON J:  And is the property earning income, or - - -

MR ROBSON: It is, it is let. It is in Geelong and it was

let to the Gas and Fuel Corporation, I understand.

I do not know whether the rents - - -

GAUDRON J: Cover the interest payments.

MR ROBSON:  I cannot help the Court there.

GAUDRON J: Yes.

DAWSON J:  Mr Robson, we reject that application save as to

the undertaking as to damages, and Mr Panna has

indicated that he is prepared to give that

undertaking on behalf of his client and you
undertake to prosecute the appeal with all

reasonable speed.

MR ROBSON:	Yes, we do, Your Honour.
DAWSON J: But what we will do, Mr Robson, is to reserve

liberty to apply with regard to the undertaking as to damages, should the situation materially alter.

MR ROBSON:  If it eventuates that the rents are

significantly less than the interest, would that be

a material matter we could bring to the attention

of the Court?

DAWSON J: That is a matter for you, but it is a question of

whether you find that there is material on which

you could apply to a single judge to, for instance,

ask for security, or you may want to tailor your

application according to the circumstances.

TOOHEY J:  Your problem is at the moment, I think, it is

expressed in terms of material change. There may

Trepan 14 9/12/93

not be any change, it may be that you simply become aware of something that you are not presently aware

of.

DAWSON J:  I think perhaps if we reserve liberty to apply

generally, but you understand the basis on which

that reservation is made?

MR ROBSON:  Yes, I do.

GAUDRON J: But there should be some material over and above

what has been brought to our attention today.

MR ROBSON:  Yes, we understand.

DAWSON J: Very well. Special leave will be granted. The

stay will be continued until the hearing and

determination of the appeal or further order on the
basis that the applicant has given the ordinary
undertaking as to damages and an undertaking that

the appeal will be prosecuted with all reasonable

speed. Liberty generally to apply.

MR ROBSON: If the Court pleases.

AT 4.40 PM THE MATTER WAS ADJOURNED SINE DIE

Trepan 15 9/12/93