Tyson & Anor v Brisbane Market Freight Brokers Pty Ltd

[1993] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B4 of 1993

B e t w e e n -

ALLAN GEORGE TYSON

Applicant

and

BRISBANE MARKET FREIGHT BROKERS

PTY LTD

Respondent

Application for a stay

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Tyson(2) 1 5/5/93

AT SYDNEY ON WEDNESDAY, 5 MAY 1993, AT 10.28 AM

Copyright in the High Court of Australia

MR R.A. MYERS:  May it please Your Honour, I appear with my

learned friend, MR P.D.B. BAKER, for the applicant,

the appellant in the appeal, and the defendant

below. (instructed by Baker, O'Brien & Toll)

MR G. BLAKE: If Your Honour pleases, I appear for the

respondent to the summons, who is the respondent to the appeal. (instructed by Biggs & Biggs Francis &

McGregor)

HIS HONOUR:	Yes, Mr Myers.
MR MYERS:	May it please, Your Honour, this is an

application for a stay of a judgment of the

District Court pursuant to the provisions of

section 77U of the Judiciary Act.

HIS HONOUR: Section 77U?

MR MYERS:  Yes, which replaces the old rule of Court,

Your Honour, and it is in, effectively, the same

terms.

HIS HONOUR:  It says the same thing as, what, the old

Order 70 rule 9?

MR MYERS:  Yes, it does, Your Honour. It replaces Order 70

rule 9.

HIS HONOUR:	Now, what are you asking for?
MR MYERS:	Your Honour, we seek a stay but, Your Honour, it

is not a case in which we crave the Court's

indulgence to the extent that perhaps one normally

does in relation to a stay. Because we say here

that the parties really contracted for

consideration -

HIS HONOUR:  No, no, but I am not concerned with that at the

moment.	What I am concerned with is precisely what
order are you asking for?

MR MYERS:	Your Honour, we seek an order in accordance with the terms of the summons which I should read; the
summons filed on 6 April 1993. Your Honour, that
seeks an order that:

The Judgment entered the 3rd day of June, 1992

in the District Court of Queensland held at

Brisbane be stayed pending determination of

the Appellant's Appeal to the High Court of

Australia, Numbered B4 of 1993.

HIS HONOUR:  Are you asking for a stay of the judgment or a

stay of proceedings under the judgment?

Tyson(2)	5/5/93
MR MYERS:	No, a stay of execution of the judgment,

Your Honour.

HIS HONOUR: Well, it is really a stay of proceedings under

the judgment, is it not, rather than a stay of the

judgment?

MR MYERS:  Yes. Well, certainly, Your Honour, when one

looks at the terms of section 77U, that, with

respect, does appear to be so:

a stay of all or any proceedings under the

judgment -

The threat that was made here was a threat of

bankruptcy. It appears that the papers have been

prepared.

HIS HONOUR:  I do not see how you have a stay of a judgment

unless the judgment is ordering that something be

done. Then I can understand that a stay of the

judgment may operate in terms of the effect or

operation of the order. But if the judgment is

merely for a pecuniary sum, I would have thought

that what you are seeking to do is to stay some

step under the judgment, ie, for example,

execution.

MR MYERS:  Yes. With respect, Your Honour, that is

certainly the case.

MR BLAKE:  Could I indicate, Your Honour, that that order is

consented to.

HIS HONOUR: Is - - -?

MR BLAKE: Consented to.

HIS HONOUR: It is consented to?

MR BLAKE: Yes, Your Honour.

HIS HONOUR: Well, what is all this about?

MR BLAKE:  Your Honour, it may just boil down to a question of the appropriate costs provision for today. Our

submission is that costs should abide the outcome

of the appeal but I think my friend has a different

view about the costs of the application.

HIS HONOUR: But, I mean, I thought that you were seeking to

enforce a judgment; that this was resisted, and a

stay was sought and you were opposing a stay.

MR BLAKE:	Your Honour, the correspondence will show that that was my client's original position.
Tyson(2)	5/5/93

HIS HONOUR: Well, not your client's "original" position;

your client's substituted position.

MR BLAKE:  Well, depending on what view Your Honour takes as

to whether or not there was an agreement for a

stay.

HIS HONOUR: There was an agreement. There may be a

question as to whether it was enforceable.

MR BLAKE: Certainly, Your Honour. But subsequent to that

alleged agreement, it is true my client did say it

wished to enforce the judgment but in more recent

times its view has been, and been communicated to

my friend's instructing solicitors, that a stay
would be consented to.

HIS HONOUR: Is that so, Mr Myers?

MR MYERS:  Your Honour, not in those terms. Your Honour, I

have brought all of the correspondence and it

appears that last night, in Brisbane, the solicitor

for the respondent said that a stay - we had been

advised this morning, that a stay would be

consented to but that no agreement was made in

relation to costs, or at least, the proposal of the

respondent's solicitors was that each party bear

their own costs at a time when substantial costs

had been incurred.

HIS HONOUR:  So, further costs were incurred by all the

legal advisers and representatives coming down to

Sydney.

MR MYERS:  Yes.

HIS HONOUR: That seems very sensible.

MR MYERS:  It certainly was not sensible and, unfortunately,

as Your Honour may be aware, Monday was a holiday

in Brisbane - I am not certain that it was here -

but it was not until last night, I understand,

after business, about 5.30 or 6 o'clock, when the

parties were here that Mr Heath contacted the

solicitor for the applicant and simply said an

order would be consented to this morning. But the

costs issue is an important one in this case and it

really, as I have submitted - - -

HIS HONOUR:  I can understand, from the point of view of the

legal representatives, it is probably important.

But why do you say it is important?

MR MYERS:  Your Honour, because this is not a case where,

effectively, we were seeking an indulgence from the

Court. It is a case where there was an agreement.

It has been acknowledged, and I can take

Tyson(2) 4 5/5/93

Your Honour to the correspondence. In breach of

that - there has, effectively, been a repudiation

of the agreement. Bankruptcy proceeding were

prepared in breach of the agreement. There was an

exchange of correspondence which has been

exhibited. Every opportunity was given to the

respondent to go back to its original position. It

continued to resile from that position, and the

applicant was left with no alternative other than

to come to the Court to seek the Court's

intervention.

Your Honour, I have prepared some submissions

which are perhaps still of moment in terms of the

facts upon which we say we should have our costs,

and a chronology of the events. Would that be of

some assistance, if I handed them up to

Your Honour?

HIS HONOUR: Possibly. Paragraph 7 of your notes rather

overstates the position in your favour, does it

not? Are there not authorities in this Court which

say that it is necessary for an applicant to show

that if an order is not made the subject-matter of

the litigation will be destroyed? Is that not what

Justice Brennan said in Burgundy Royale?

MR MYERS:  Yes. Of course, that was really quite a

different case in the sense that there had not

been, in that case, leave to proceed.

HIS HONOUR:  Yes, there had not been a grant of special

leave.

MR MYERS:  Yes, and apart from its inherent jurisdiction,

His Honour considered that the Court had no other

jurisdiction and would not grant the application

for a stay. Your Honour, I would submit that

Mr Justice Dawson did deal with the relevant

principles in the case to which I refer in
paragraph 7, Federal Commissioner of Taxation v The

Myer Emporium, and he seems - and I really was

careful, with respect, not to overstate it - that

had there been an agreement of the sort that was contended for by the Commissioner, it could have

constituted special circumstances. His Honour did

not have to decide it.

I have a copy of the case for Your Honour, and

the relevant - - -

HIS HONOUR:	What is that, Justice Dawson's judgment?
MR MYERS:	Yes.

HIS HONOUR:	I have read it.	You need not worry, Mr Myers.
Tyson(2)	5	5/5/93
MR MYERS:	Thank you, Your Honour.	That was a case where,

as Your Honour will recall, the Deputy Commissioner

said, "Look, there was an agreement", and to some

extent was a little like this case in that the

taxpayer sought to resile from it and His Honour

concluded that there in fact was not an agreement

and went on to grant the stay on a different basis.

That was, upon the basis that if the $10 million

was

HIS HONOUR:  Yes. I would have thought there were special

circumstances in this case.

MR MYERS:  Yes~ Your Honour, if one goes that far, the

situation really, as far as - - -

HIS HONOUR: 

Why does that mean that you should get an order

for costs, in any event? Let us assume that you
had made an application at an earlier stage and you
had succeeded. You would not have got an order for

costs in ordinary circumstances, would you?

MR MYERS:  No. I would submit that had we simply made an

application for a stay after the judgment was

given, the type of order made, for instance, by

Mr Justice Dawson in the Myer case, that they be

costs in the cause would have followed.

Your Honour, I submit that this case is really

distinguishable from one of those cases in which

there are costs in the cause because, as is

evidenced by the correspondence, the parties really

did, for proper consideration, make an agreement

and all of these proceedings have not come about
because the applicant comes here seeking an
indulgence, these proceedings have all come about

because of a breach of contract.

HIS HONOUR:  But why should you get your costs in any event?

Why would not the proper order be your costs in the appeal? In other words, you get the costs if you are successful in the appeal, but not otherwise?

MR MYERS:  Your Honour, if, ultimately, that is the decision

that Your Honour comes to in the exercise of a

discretion, obviously one could not quibble with

it, but I would submit that in this particular

case - and it is an unusual case - where there has

been an agreement, really, the applicant has had to

come here; inconvenienced himself and put himself

to great expense simply because of a breach of a

contract.

HIS HONOUR:  The strength of your case is you had an

agreement. The respondent sought to resile from

it. It was because the respondent sought to resile

from it that you were forced to commence these

Tyson(2) 6 5/5/93

proceedings, and now the respondent comes along

here and consents to the orders.

MR MYERS:  Yes. And so it is not as if it is case where, as

I say, we have incurred expense in seeking an

indulgence and perhaps should only have the costs

in the event that we ultimately succeed. It is a

case where there was simply never a necessity to

incur one penny's worth of costs had there not been

a breach of contract and, in my submission, it is a

strong case where there should be an order for

costs, effectively following the event; the

repudiation of the agreement and, ultimately, a

resiling from that position and an agreement to

consent.

Your Honour, there is a letter which is more

recent, of course, than the affidavit which perhaps

I should seek Your Honour's leave to tender and

file. It is a letter from my instructing

solicitors to the respondent's solicitors dated

22 April in which, effectively, the terms of a

consent order that the applicant would be prepared

to agree to were set out and, of course, had that

been agreed to, Your Honour, there would have been

no necessity for the major costs that have now been

incurred to be incurred.	I would seek to file it
and use it in - - -

HIS HONOUR:  Yes. You do not want to see that letter, do

you, Mr Blake?

MR BLAKE:	I have seen it, Your Honour.
MR MYERS:	Your Honour, there is other correspondence but I

do not know that it takes the matter any further.

The parties have not come together in those terms.

I submit those terms were reasonable and I repeat

the submission that there was never a necessity for

a skerrick of cost to be incurred. They are my

submissions, may it please Your Honour.

HIS HONOUR:  Very well. Yes?

MR BLAKE:  Your Honour, it may be of some assistance to

hand up a more recent correspondence that is

annexed to an affidavit. I am afraid, Your Honour,

that there is no original affidavit - it has just

come by facsimile from Brisbane this morning - but

I would seek to tender that.

HIS HONOUR:	Yes.	You have seen this, Mr Myers?
MR MYERS:	I have just been handed a copy.	I have not read

it at all, Your Honour, but I would imagine it is

not contentious if it simply seeks to exhibit the

correspondence to which I have referred.

Tyson(2)	7	5/5/93
HIS HONOUR:	Yes.	The suggestion made in your solicitor's

letter of 19 April was entirely misconceived.

MR BLAKE:	I accept that, Your Honour.
HIS HONOUR:	Once an appeal is filed in this Court, then, of course, the court below has no jurisdiction at all.

MR BLAKE: Exactly, Your Honour.

HIS HONOUR:	Yes.
MR BLAKE:	Your Honour, the position of the respondent

briefly is that we say after the District Court

judgment and, indeed, after the dismissal of the

appeal to the Supreme Court Court of Appeal, the

respondent was entitled to the fruits of its

judgment. It is no doubt that at that time it had

made a representation that it would not enforce its

strict legal rights to obtain the fruits of that

judgment if a payment of one half of the judgment

debt was made. That sum was duly paid and
subsequently, by giving notice to the appellant,

the respondent indicated that it would seek to rely

upon or enforce its strict legal rights.

The respondent would submit that never, at any

time, was there a binding agreement to stay

execution of the judgment or proceedings under the

judgment until after the determination of the

appeal. All that happened was a representation

that it would not enforce its strict legal rights

and, on notice, it resiled from that. We say it

was necessary, in those circumstances, for the

application to be brought and, in those

circumstances - - -

HIS HONOUR:  Why was there not a binding agreement? The

applicant refrained from making an application for an order for a stay on the faith of the agreements

that proceeded from your client? When I say "a

binding agreement", it would seem to me that there

is a case for saying a binding arrangement was

entered into on the footing that you represented

that you would not do something on the faith of

which the applicant acted by not then making an

application for an order for a stay pending the

determination of the proposed appeal.

MR BLAKE:  Your Honour, we would say that might give rise

to an estoppel, but we would say there was no

binding agreement for which consideration was given

and that all that has happened is that the

appellant has been put to the expense it otherwise

would have incurred anyway, albeit, at a later

time.

Tyson(2)	5/5/93
HIS HONOUR:	The best you can do out of that, I would have

thought is to say, on the footing that there was a

binding arrangement arising from an estoppel, you

could put an end to that arrangement - - -

MR BLAKE:	- - - by notice.
HIS HONOUR:	- - - by notice, as a result of which the

applicant could then take steps to protect its

position.

MR BLAKE: That is correct, Your Honour, which is exactly

what has happened.

HIS HONOUR:  Now, let us assume that that is the correct

analysis of the position. What is its significance

in terms of costs?

MR BLAKE:  Your Honour, we would contend that the usual

order - if I can call it that - that costs of this

application should be costs in the cause.

HIS HONOUR:  But the problem is that you then sought to

assert that you were opposing the application. It

now appears that you are not opposing the

application. The result is that unnecessary costs

have been incurred.

MR BLAKE: Yes. Well, I concede, Your Honour, that the

basis for the opposition to the application was

misconceived.

HIS HONOUR:  Now, what should be the consequences of that in

terms of costs?

MR BLAKE:  But, Your Honour, that came after the filing of the application. It would have been necessary to

file the application in any event.	We submit that
we were entitled to give notice.

HIS HONOUR:  But why would it have been necessary to file

the application in any event? Your consent to the

order seems to me to indicate that your client is

prepared not to take steps to enforce the judgment

pending the determination of the appeal.

MR BLAKE: That is correct, Your Honour.

HIS HONOUR:  Now, that being so, why was it necessary for

your client to take action that compelled the

applicant to file the application in order to

protect its position?

MR BLAKE:  Your Honour, there is no evidence about that and

I have no instructions to be able to assist

Your Honour to answer that question.

Tyson(2) 9 5/5/93

HIS HONOUR:	Yes?
MR BLAKE:	If Your Honour was not minded to make that

particular order, we would submit that the costs

order that Your Honour suggested would be an

appropriate order, that the applicant have the

costs of the application in the appeal.

Your Honour, there is nothing further, by way of

submission, that I can make that I think will

assist the resolution of the costs issue.

HIS HONOUR:  All right, thank you. Do you want to say

anything, Mr Myers?

MR MYERS:  Your Honour, very briefly, if I may, by way of

response. Your Honour, could I simply refer you to

two of the exhibits to Mr Baker's affidavit? The

first is exhibit DEBS.

HIS HONOUR:	Now, which affidavit is this?
MR MYERS:	That is Mr Baker's affidavit, filed on 6 April,

Your Honour, in support of the summons.
Your Honour, exhibit DEBS is the original without

prejudice offer. Your Honour will see the proposal

is made in the penultimate paragraph - that is the

proposal to settle or, at least, pay half of the

judgment debt and then it is said that if the

proposal is not accepted that the instructions are to apply for a stay of the judgment. So there is,

in my submission, adequate consideration. That is

accepted by the letter from the respondent's

solicitors, DEB6, as Your Honour will see in the

second paragraph. But, Your Honour, to put the

matter beyond doubt as to what the status of the

arrangement then was, could I take Your Honour to

exhibit DEB12 which is the letter from the

respondent's solicitor after the current difficulty

arose and Your Honour will see the second

paragraph:

We concede that it was previously agreed

between our respective clients that our client

would withhold making demand upon your

client •.... until such time as your client's

High Court Appeal was determined. We confirm

that the contents of letters of the 13th of

November, 1992 and the 4th of December, 1992

confirm that agreement.

Your Honour, our submission is simply that there is no doubt about the status of the

agreement. It was a firm and binding contract and,

with respect, we adopt what Your Honour has

observed to my learned friend. There was simply
never a necessity for anything to be done, had

there not been a breach of that agreement. It is

Tyson(2) 10 5/5/93

not really a Verwayen case, it is not an estoppel

case; it is a contract to which the law attaches a

great deal of store, a formal and a binding

agreement between the parties which has been

breached. There is simply no other way of looking

at it. They are our submissions, Your Honour.

HIS HONOUR:  Yes, thank you, Mr Myers.

This application for a stay of proceedings

under a judgment pending the determination of an
appeal which is awaiting hearing in this Court has
degenerated into a distasteful dispute about costs
because the respondent now consents to an order for

a stay. In that respect, the order I make is as

follows: that proceedings under the judgment

entered on 3 June 1992 in the District Court of

Queensland held at Brisbane be stayed pending

determination of the applicant's appeal to this

Court, No B4 of 1993.

The applicant seeks an order for the costs of

this application. The respondent, on the other hand, disputes that order and suggests that the

costs ought to be costs in the appeal.

The circumstances in which the application was made are somewhat unusual in that as a result of

correspondence between the solicitors for the

parties which took place before the application for

special leave to appeal was made by the applicant

in relation to the judgments of the courts below,

the applicant offered to pay half the amount of the

judgment debt and interest on certain terms which

appear in a letter dated 20 October 1992, from the

applicant's solicitors to the respondent's

solicitors. That offer was accepted by the

respondent's solicitors. The acceptance of that

offer resulted in payment of an amount of

$31,996.15, pursuant to the arrangement then made.

Subsequently, after special leave had been

notwithstanding the arrangement that had been made, granted, the respondent's solicitors indicated that their client had instructed them to enforce the
judgment.

In a letter dated 5 March 1993 from the

respondent's solicitors to the applicant's

solicitors, the respondent's solicitors stated:

We concede that it was previously agreed

between our respective clients that our client

would withhold making demand upon your client

for the payment of the balance of the Judgment

debt until such time as your client's High

Court Appeal was determined. We confirm that

Tyson(2) 11 5/5/93

the contents of letters of the 13th of

November, 1992 and the 4th of December, 1992

confirm that agreement.

Unfortunately, our client has now withdrawn

those instructions in relation to this matter.

We have been instructed to demand and we do

hereby demand that your client pay to our

trust account within seven (7) days of the

date of this letter the balance of the

Judgment debt in the sum of $34,463.65.

If your client should attempt to rely upon the

previous agreement in relation to this matter,

may we respectfully observe that there has

been no consideration provided by your client

to support any agreement to the effect that

our client would withhold making demand for

the payment of the balance of the Judgment

debt until the determination of your client's

Appeal.

It was following a repudiation of the agreement

referred to in that letter that the applicant filed

an application for an order for a stay of the

proceedings under the judgment.

It has been suggested by counsel for the

respondent in this application that the

correspondence to which I have referred did not

give rise to a binding agreement and did not give

rise to a promissory estoppal of a kind which

precluded the respondent from withdrawing from the

representation that he had made on the giving of

notice to the applicant.

Whatever view may be taken of the arrangements

made between the parties, it seems to me that the

withdrawal by the respondent from those
arrangements has given rise to proceedings which

have generated costs which, in the circumstances, have proved to be fruitless. Notwithstanding the

respondent's intended opposition to this

application for an order for a stay, the respondent

has eventually come along to this Court and

consented to an order for a stay, without giving

any explanation why the agreement was repudiated
and why initial opposition to the making of an

order for a stay was withdrawn. In the
circumstances that I have outlined, it seems to me

the respondent should have communicated its

attitude to the applicant's solicitors at an

earlier stage, in which event these costs would

have been either wholly or largely avoided.

Tyson(2) 12 5/5/93

In this situation, it seems to me that the

proper order for costs is that the respondent to

this application should pay the applicant's costs

of the application, and I so order.

The Court will now adjourn sine die.

AT 11.04 AM THE MATTER WAS ADJOURNED SINE DIE

Tyson(2) 13 5/5/93