Vella v Wah Lai Investment

[1998] HCATrans 468

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S196 of 1998

B e t w e e n -

PAUL VELLA

Applicant

and

WAH LAI INVESTMENT (AUSTRALIA) PTY LTD

First Respondent

REGISTRAR GENERAL

Second Respondent

Application for injunction

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 21 DECEMBER 1998, AT 2.13 PM

Copyright in the High Court of Australia

MR D.H. COCHRANE:   May it please your Honour, I appear for the applicant.  (instructed by Larry Noble & Associates)

MR J.R. McKENZIE:   May it please the Court, I appear for the first respondent, Wah Lai Investment (Australia).  (instructed by W. Chan & Co)

HIS HONOUR:   The Senior Registrar certifies that she holds a letter from the solicitor for the New South Wales Registrar General advising that the second respondent does not attend the hearing of this application and will comply with any orders that the Court makes other than an order as to costs.

Yes, Mr Cochrane.

MR COCHRANE:   If your Honour pleases.

HIS HONOUR:   Now, I have a summons.

MR COCHRANE:   Yes, your Honour; an affidavit in support, perhaps, from Larry Nesbit Noble deposed to on 18 December 1998; an application for special leave to appeal and the applicant’s summary of argument.

HIS HONOUR:   Yes.

MR COCHRANE:   Your Honour, there are some other documents, if I may ‑ ‑ ‑

HIS HONOUR:   Let me just get things in order.  On your side, Mr McKenzie, I have an affidavit from ‑ ‑ ‑

MR McKENZIE:   Mr William Chan, your Honour.

HIS HONOUR:   Yes, that is right, sworn 20 December, that is yesterday, and your summary of argument.

MR McKENZIE:   Yes, your Honour.  Also to that affidavit there should be four bundles of exhibits which I would seek to tender.

HIS HONOUR:   Yes, that is right.  They can be treated as tendered, if there is no objection.

MR COCHRANE:   There is no objection.

HIS HONOUR:   I will come back in a moment to other matters.  Now, I also have four judgments:  a judgment of Justice Sully of 29 January 1998; a judgment of Justice Bryson of 17 June 1998; of Justice Windeyer of 11 December 1998 and the as yet uncertified reasons of President Mason of 16 December 1998.  Is that right?

MR COCHRANE:   Yes, your Honour.

HIS HONOUR:   Now, in Justice Mason’s reasons it is accepted, is it, that in the second line on the first paragraph it should be May 1996, is that right?

MR COCHRANE:   Well, no, your Honour, because ‑ ‑ ‑

HIS HONOUR:   Just tell me – I am not sitting here for a great deal of time ‑ just tell me shortly what are the alleged errors as to dates in Justice Mason’s reasons.

MR COCHRANE:   If your Honour goes to page 3 point 9 your Honour will see there is a sequential as to actual findings: 

After the determination of that application ‑ ‑ ‑

HIS HONOUR:   Just tell me the date, which line?

MR COCHRANE:   The date is referred to as 14 May 1998 there.

HIS HONOUR:   It should be 1996?

MR COCHRANE:   Yes. 

HIS HONOUR:   Right.  Any other errors as to dates?

MR COCHRANE:   Once again the same date is referred to on page 6, your Honour.

HIS HONOUR:   Fourth-last line?

MR COCHRANE:   Yes.  But, your Honour, I am not wishing to correct those, with respect.  That is a matter that I want to ‑ ‑ ‑

HIS HONOUR:   I understand what you are making about them.  I am just trying to get it on track.

MR COCHRANE:   Certainly.

HIS HONOUR:   And in the judgment of Mr Justice Bryson on page 4, the paragraph in the middle of the page, “I turn to the Equity proceedings”, should that be “On or about 11 July 1996”?  Is that correct?

MR COCHRANE:   Yes, your Honour, it ought to be.

HIS HONOUR:   Four lines below that.

MR COCHRANE:   Once again “1996”, your Honour.  The next line as well, your Honour.

HIS HONOUR:   Yes.  And likewise on page 12 about the middle of the page, “although it is heavily mortgaged”, that statement there and the second‑last line, “which are heavily mortgaged”, you say that is not the fact?

MR COCHRANE:   We say it is not the fact, your Honour.  We say that there was certain evidence before Justice Windeyer to show that the reality was something else.

HIS HONOUR:   Look, you must try and deal with things succinctly if we are going to get on.

MR COCHRANE:   Certainly, your Honour.

HIS HONOUR:   Now, you say that is not correct, right, those two statements?

MR COCHRANE:   Yes, your Honour.

HIS HONOUR:   All right.  Now, is that agreed with Mr McKenzie?

MR McKENZIE:   Yes, your Honour.  I do not agree that it is not correct, your Honour, but I agree that that is what my learned friend is raising.

HIS HONOUR:   What do you say the fact is?

MR McKENZIE:   Your Honour, we say that the fact is on the evidence that there was a ‑ ‑ ‑

HIS HONOUR:   On 17 June 1998, what was the fact as you say it, that is the date of his Honour’s reasons?

MR McKENZIE:   Yes, that there was at that time a letter of charge in existence over the property.  Mr Justice Windeyer found that that was not a mortgage in the technical sense.

HIS HONOUR:   I see.

MR McKENZIE:   And I think however it is categorised, I understand my learned friend to be taking issue as to the efficacy of the charge.

HIS HONOUR:   Yes, well I am certainly not going to resolve that question of fact.  Yes.

MR COCHRANE:   Your Honour, there was some evidence in respect of that that showed ‑ ‑ ‑

HIS HONOUR:   No, just tell me what extra matters do you want to tender.

MR COCHRANE:   An affidavit by Larry Nesbit Noble, your Honour.

HIS HONOUR:   What date is it sworn?

MR COCHRANE:   It is sworn 15 December 1998.

HIS HONOUR:   Has this been filed already?

MR COCHRANE:   Yes, it has, your Honour.  It was handed up to the learned President, your Honour.

HIS HONOUR:   No, no, no, in this Court.

MR COCHRANE:   It has not formally been filed in this Court.

HIS HONOUR:   It is either filed or not filed.

MR COCHRANE:   I would seek leave to file it, your Honour.

HIS HONOUR:   Why is it so late?

MR COCHRANE:   Your Honour, it was referred to in the affidavit that your Honour has looked at that has been filed.  It is the affidavit of 15 December 1998.

HIS HONOUR:   Yes.  It is not sworn in this Court, so it can only be tendered as an exhibit.  Any opposition to this, Mr McKenzie?

MR McKENZIE:   Your Honour, there were three affidavits of the 15th sworn by Mr Noble in these proceedings.

HIS HONOUR:   This is one of 10 paragraphs, four pages.

MR McKENZIE:   Your Honour, I do not have any objection to it being tendered.

HIS HONOUR:   The affidavit of Mr Larry Nesbit Noble sworn 15 December 1998 in Court of Appeal New South Wales No 41021 of 1998, being an affidavit of 10 paragraphs in this Court, will be exhibit A.

EXHIBIT:              Exhibit A … Affidavit of Larry Nesbit Noble

HIS HONOUR:   Anything else?

MR COCHRANE:   Yes, your Honour, I seek to tender affidavits that were before the learned President.

HIS HONOUR:   Why?

MR COCHRANE:   Your Honour, it goes to the balance of convenience and it also goes to the Mareva question.

HIS HONOUR:   Any opposition to this, Mr McKenzie?

MR McKENZIE:   Your Honour, I do not know – I understand my learned friend wishes to tender another two affidavits of Mr Noble ‑ ‑ ‑

HIS HONOUR:   He seems to think he is here for some rehearing.  He is not here for a rehearing.

MR McKENZIE:   No.  I know what is in them, your Honour, and we have sorted that out this morning as to what affidavits he is going to seek leave to tender.  But, your Honour, I object on the basis of the nature of the application.

HIS HONOUR:   Perhaps one should know first what the particular relief is that is being sought here.  As I understand it, it is the relief in paragraph 2 of the summons, is it not?

MR COCHRANE:   That is so, yes, your Honour.

HIS HONOUR:   What has that got to do with Mareva injunctions?  Nothing.

MR COCHRANE:   If your Honour is disposed against me in respect of that, I would seek to raise the matter that is raised in the special leave application as to the Mareva injunction.

HIS HONOUR:   I will deal with what is in the summons.  At the moment it is not in the summons.

MR COCHRANE:   I withdraw that particular set of documents.  Your Honour, there was one other thing, if I may.

HIS HONOUR:   Yes.

MR COCHRANE:   Your Honour raised just a few moments ago the suggestion of a rehearing in respect of certain evidence.  That is not the reason why we are here.  We are here because the Registrar General is about to register a document ‑ ‑ ‑

HIS HONOUR:   That is what I am coming to at this moment.  That is why you need paragraph 2 of your summons.  I am fully aware of that.

MR COCHRANE:   Yes.  Now, your Honour, in respect of it, though, I would seek also to rely on the submissions that were made before Justice Windeyer and, if I may, I tender those submissions.

HIS HONOUR:   Yes.  Any opposition to that, Mr McKenzie?

MR McKENZIE:   No objection to them going in as submissions, your Honour.

HIS HONOUR:   The submissions dated 11 December 1998 by counsel for the present applicant, being submissions presented in the proceeding before Mr Justice Windeyer which led to the judgment of 11 December 1998, will become exhibit B.

EXHIBIT:              Exhibit B …. Submissions before Justice Windeyer

MR COCHRANE:   If your Honour pleases.

HIS HONOUR:   Yes, Mr Cochrane.

MR COCHRANE:   Your Honour, I would seek to read the affidavits in support of the summons ‑ ‑ ‑

HIS HONOUR:   No, there is no need to do that.

MR COCHRANE:   As your Honour pleases.

HIS HONOUR:   You have a very short period of time.  If you were on a leave application you would have 20 minutes.  Why should you have any more?

MR COCHRANE:   I appreciate your Honour’s comment.  Your Honour, in my respectful submission, if your Honour goes to the affidavit that was filed in this Court today, that is the affidavit by Larry Nesbit Noble, your Honour will see the one sworn 15 December.  Your Honour will see there are a number of annexures in that particular affidavit.

HIS HONOUR:   That is exhibit A?

MR COCHRANE:   The first annexure, annexure A, is the consent orders directing judgment for possession.  Your Honour will see that that is a document in particular proceedings that later came before Justice Sully.  Your Honour will see that this present applicant is not one of the parties. 

HIS HONOUR:   I realise that.  I realise all of that.  I have read all these judgments.  We come here prepared.  You can take all that into account.  On the other hand, of course, the first defendant in these proceedings, Buddies Liquor, is not a party here.

MR COCHRANE:   No, that is so, your Honour.  If your Honour looks at the way in which the document was executed, your Honour will see that the solicitor for both the plaintiff and the solicitor for the defendant executed that consent order.

HIS HONOUR:   Yes, I understand that.

MR COCHRANE:   As to the next document that is annexed ‑ ‑ ‑

HIS HONOUR:   Look, we have to get to some questions of principle.

MR COCHRANE:   Yes, if I may, with respect, your Honour, I am looking at unconscionability and looking at whether or not, at that particular time ‑ ‑ ‑

HIS HONOUR:   Just listen to me for a minute, Mr Cochrane.  The state of the register at the moment is that there is on it, is there not, this lease from your opponent’s client to Buddies, is that right?

MR COCHRANE:   There is a transfer of lease which I was about to take your Honour to.

HIS HONOUR:   Just take it step by step. 

MR COCHRANE:   Under section 55, your Honour.

HIS HONOUR:   Pursuant to a notice under section 12A of the Real Property Act 1900 ‑ ‑ ‑

MR COCHRANE:   The Registrar General will act unless the Supreme Court intervenes.

HIS HONOUR:   Exactly, and your complaint is that it has not intervened.

MR COCHRANE:   That is so, and my complaint is, your Honour – the complaint is ‑ ‑ ‑

HIS HONOUR:   The question then is, where is your equity to require it to intervene?

MR COCHRANE:   If your Honour looks at annexure B your Honour will see a transfer of lease.  Your Honour will see that the transferor is Buddies Liquor Pty Limited ‑ ‑ ‑

HIS HONOUR:   Just a minute.  This is annexure B to the Noble affidavit of the 15th ‑ ‑ ‑

MR COCHRANE:   15 December.

HIS HONOUR:   It seems to be a notice pursuant to section 12A.

MR COCHRANE:   No, with respect, 15 December 1998, the one I have just sought to file.

HIS HONOUR:   Yes, that is quite right.  You not only sought to file it, it is tendered.  Yes, I have it here.  Now, this discloses a consideration of $1.

MR COCHRANE:   Yes, it does, your Honour.

HIS HONOUR:   And that is something that is greatly ‑ ‑ ‑

MR COCHRANE:   And there was a transfer of business ‑ ‑ ‑

HIS HONOUR:   Just a minute; that greatly impressed Justice Bryson.

MR COCHRANE:   But it did not impress Justice Windeyer.  He was not concerned about that at all because parties make their own arrangements as to particular consideration.  There was a transfer of business and the particular consideration was, in the agreement, $100,000 plus $5,000, if I recall it, your Honour.  The transfer of lease – if you look at the second page, your Honour, your Honour will see there is a seal “Buddies Liquor Pty Limited”, you will see that it is in the presence of – it appears to be a signature with Meers as the surname, and then another director and the signature I cannot read.  Your Honour may be able to.  It is dated 20 July 1994 and your Honour will see that the applicant is the other signatory as transferee.

Your Honour, the next annexure is one under the letterhead of Nelson Meers and your Honour will see that he makes mention that the lease of the subject property has this day been transferred to Mr Paul Vella.

HIS HONOUR:   The first question that then arises – what date is this, July, is it, 1994?

MR COCHRANE:   This is 20 July 1994, your Honour.

HIS HONOUR:   Why did nothing happen between July 1994 and July 1996 to get the register ‑ ‑ ‑

MR COCHRANE:   Your Honour, there were a number of things happening.

HIS HONOUR:   No, no, no.  The register has not been put in order.  That is the source of your problem.

MR COCHRANE:   That is so.

HIS HONOUR:   The source of your problems.  You did not get the ‑ ‑ ‑

MR COCHRANE:   Your Honour, the document was misplaced amongst other documents and it was not found until round mid 1996. What the Registrar General is looking at is whether or not there is bona fides and a lawful re-entry under section 55 of the Real Property Act.  The Registrar General has a consent order which is in terms of annexure A.  Your Honour, there is the transfer of lease, so the Registrar General has that document.  Now, if there had not been a request lodged some 20 days before, and then a substitute instrument which was lodged about 21 July 1996 to this transfer of lease which was lodged about 31 July 1996, there would have been the transfer of lease registered.  The request came some 10 days or nine days before.  That is the contest. 

Now, if indeed, though, just removing it for one moment, there had not been the request, there would not be any need for any of this application.  Because there is that need, your Honour needs to look, as the Registrar General needs to look, with respect ‑ ‑ ‑

HIS HONOUR:   I do not need to look at anything.  I have to be satisfied ‑ ‑ ‑

MR COCHRANE:   At the evidence ‑ ‑ ‑

HIS HONOUR:   No.  I have to be satisfied that Justice Mason went wrong in some relevant respect which attracts the intervention of this Court in this very special manner.

MR COCHRANE:   Yes.  I will certainly come to Justice Mason.

HIS HONOUR:   Well, sooner than later.

MR COCHRANE:   But I have to explain this to your Honour so that you might do justice in respect of this application, with respect.  There was before Justice Windeyer evidence in the annexure that is annexure D, a letter written by a director of Wah Lai, Chan Wah, and he acknowledged at the time that Paul Vella was a tenant.  That letter was written on 2 July 1996 and it only preceded the application for the request to the Registrar General by some days.  You will see the statutory declaration by the same person, Chan Wah of Wah Lai, you will see that there are a number of things in that statutory declaration.  And it was shown ‑ ‑ ‑

HIS HONOUR:   What does this go to?

MR COCHRANE:   It goes to whether or not the Registrar General – what I was asking Justice Windeyer to do was to look at the unconscionability in respect of the consent orders and look at the circumstances that followed and the material that was before the Registrar General. The material before the Registrar General, if it is flawed or if the substance or basis of it is flawed, then the Registrar General cannot be satisfied under section 55 and should not register the consent. We say that, in the circumstance of the factual material before Justice Windeyer, it was flawed and we say that Justice Bryson dissolved the injunction because he found that it was heavily mortgaged, the property ‑ ‑ ‑

HIS HONOUR:   Why did you not promptly appeal against that or seek ‑ ‑ ‑

MR COCHRANE:   Your Honour, I have only been in this since 2 November.

HIS HONOUR:   When I say “you”, come on, please, when I say “you” I mean your client.

MR COCHRANE:   As I understand it, there was ‑ ‑ ‑

HIS HONOUR:   There is no explanation given, is there?

MR COCHRANE:   There is no explanation and ‑ ‑ ‑

HIS HONOUR:   That is all you had to say.

MR COCHRANE:   Although there is no explanation, there is a change of solicitors and there is a lack of ability ‑ ‑ ‑

HIS HONOUR:   The fact that one party changes its solicitors does ‑ ‑ ‑

MR COCHRANE:    ‑ ‑ ‑ that the applicant has ‑ ‑ ‑

HIS HONOUR:   Just listen to me.  The fact that one party, as you know and I know, does not organise its affairs, changes its solicitors, cannot be allowed to prejudice another party.  It is as simple as that.

MR COCHRANE:   Yes, your Honour. But there is a holding summons in respect of that and it is, of course, an application for leave to appeal to the Court of Appeal and that particular argument, at some later stage, once one is seized with the reason for that delay properly, will be put before that court. But, your Honour, here we are talking about whether or not the Registrar General, under section 55, has before him a bona fide re-entry or whether or not it is tainted with unconscionability or unconscionability of ‑ ‑ ‑

HIS HONOUR:   What does that mean?  In terms of legal analysis, what would the defence have been if your client had been in the proceedings before Justice Sully to set aside – or if they had been there at the time of the consent order?

MR COCHRANE:   Unfortunately Justice Mason ‑ ‑ ‑

HIS HONOUR:   How would it have been analysed legally?  You just cannot – counsel tends to flourish this word “unconscionability” ‑ ‑ ‑

MR COCHRANE:   Very differently.  Firstly, Justice Mason was looking at a sequential.  He was looking at a judgment by his Honour ‑ ‑ ‑

HIS HONOUR:   No, no, no.  You really must concentrate on what I am saying.  What I am asking you is, in response to your use of this term “unconscionability” in relation to the exercise by the Registrar General of his powers, I am trying to find out how that works in terms of legal analysis.  Would it be an answer – would it found an application by the court to prevent the Registrar General acting?

MR COCHRANE:   It ought to be, your Honour.  The unconscionability goes to the conduct of the corporation.  It is similar in its definition to what is within the Trade Practices legislation in section 51AA or AAA and 51A and 51AB and 52, your Honour.  One would seek to speak in terms of those matters.  There is, as well, the fact that Buddies Liquor is a party to the consent order when it knows, and it ought to be estopped, when it knows that it transferred its interest in the lease to the subject premises some two years before approximately, and that it put a seal on that.  And as well as that, Nelson Meers appears to have – or a person by the name Meers – appears to have been a witness to the putting of the seal or the placing and fixing of the seal of that particular transfer of lease, your Honour. 

It was factual material before Justice Windeyer that, at the end of 1995, after the issuance of the proceedings that Justice Sully heard only as to a motion and not to the substantive proceedings, and some two months later, there was a transmission by Josephine Hui ‑ ‑ ‑

HIS HONOUR:   Just listen to me.  There is another factual debate, is there not, as to the degree of notice or knowledge or whatever one likes to call it, of your client of what was going on in and about the time of the consent order?

MR COCHRANE:   Josephine Hui already acknowledged in December 1995 that there would be work done to satisfy a fire safety order and that that would be accepted, the value of it, in lieu of rent; that in April the following year, only some four months or four and a half months, approaching five months later, Wah Lai, of which Josephine Hui is a secretary, then goes about not acknowledging that Paul Vella was a tenant and yet, in the very hand of a director of Wah Lai, Chan Wah, Chan Wah says that Paul Vella was a tenant of the subject premises.  That occurred only three months – or certainly two months, approaching three months – after the consent order, your Honour, and it is part of the documentation that is before the Registrar General.  The statutory declaration is part of the documentation before the Registrar General.  And it flies in the face of what Josephine Hui, the secretary of the lessor or the owner of the premises, did in December 1995.

Justice Mason looks at the importance of Justice Sully’s judgment, when Justice Sully was only determining not the issues in relation to what might be before the Registrar General but looking under Part 7 rule 8 and Part 8 rule 8 as to whether Vella was an occupier of the premises or whether he was in possession.  Justice Sully was not looking at anything else.  He was not looking at or determining equitable interest.  The proceedings that are presently before the Supreme Court in its Equity jurisdiction are these, your Honour – and I seek to tender, if I may, the pleading – that is a summons in matter 2907 of 1996, a statement of claim in matter 2907 of 1996, both in the Equity Division; a defence and cross-claim in the same matter ‑ ‑ ‑

HIS HONOUR:   What will they show me?  Were they before Justice ‑ ‑ ‑

MR COCHRANE:   They will show you that the proceedings were quite different to what was before Justice Sully.

HIS HONOUR:   I can understand that.  I can grasp that from the judgments.

MR COCHRANE:   And Justice Bryson did not deal with any of this.

HIS HONOUR:   Just a minute.  Were these materials before Justice Mason, the materials you have in your hand?

MR COCHRANE:   The pleadings?

HIS HONOUR:   Yes.

MR COCHRANE:   I believe they were.  I believe they were in the affidavit of William Chan.  The defence and cross-claim ‑ ‑ ‑

HIS HONOUR:   I understand what you are saying.  It is now 20 to 3.

MR COCHRANE:   I see, your Honour.  Your Honour, the judgment of Justice Mason ‑ ‑ ‑

HIS HONOUR:   I will not interrupt any more.  But I really hope you will be finished by 3pm.

MR COCHRANE:   Firstly, your Honour, Justice Mason looks at the judgment of Justice Sully as being the first event.  He then, at page 3, says the judgment was on 29 January 1998.  He then makes the comment that, page 3 point 9:

After the determination of that application the judgment for possession was executed –

So there is the judgment of Justice Sully on 29 January 1998, there is then the execution, his Honour says:

on 14 May 1998 all persons then present at, I use the words advisedly, the hotel premises were evicted ‑ ‑ ‑

HIS HONOUR:   You say that is an error.

MR COCHRANE:   We say that is an error because it is linking it to Justice Sully and the decision of weight that the learned President placed on Justice Sully’s decision.

HIS HONOUR:   Yes.

MR COCHRANE:   Then it follows a sequence because then on the next page, point 1:

Subsequently, on 17 June 1998, Bryson J gave judgment in which, following a contested hearing before him, he ordered that an earlier interlocutory injunction, which restrained the Registrar General from registering certain dealings and an earlier undertaking given by Wah Lai, should be dissolved and released respectively.  His Honour held that there was power to do this, and that the matter that had been litigated and effectively determined, albeit on an interlocutory basis –

we say that is the second error, because the matter was not determined at all.  It was an interlocutory thing, the substantive proceedings are still on foot.  They have not been determined, the substantive proceedings in Equity still deal with the property and we are wanting to preserve the property.  Otherwise, the whole thing is futile.  It is certainly futile in respect of any appellate procedure.  Then his Honour Justice Mason went on to say:

The clear intent and effect of his Honour’s orders to enable the registration by Wah Lai of an instrument which, when, when registered, would remove from its freehold title any endorsement relevant to the lease.  If the lease went, then any instrument claiming under the lease would obviously be incapable of subsequent registration.

Your Honour, it is our respectful submission that statement reflects a miscarriage of justice, but it also reflects ‑ ‑ ‑

HIS HONOUR:   What do you mean by that?  You use these emotive phrases continually, Mr Cochrane.  Really.  Which is the particular passage?

MR COCHRANE:   It is at point 5, your Honour:

The clear intent and effect of his Honour’s orders to enable the registration by Wah Lai of an instrument –

Your Honour, that was never the basis upon which the material came before Justice Sully.  It was whether or not Paul Vella might be joined as a party to the proceedings where he had been denied natural justice and he was not a party and he ought to have been.

HIS HONOUR:   The “his Honour” being talked about there is Justice Bryson, is it not?

MR COCHRANE:   It is reflecting on what Justice Sully did, your Honour.

HIS HONOUR:   All I am saying to you is – and I will not repeat myself ‑ ‑ ‑        

MR COCHRANE:   Yes, your Honour, that is so.

HIS HONOUR:   Very well.

MR COCHRANE:   But it is reflecting on Justice Sully as to the subsequent events.  As to what Justice Bryson is thinking in relation to the resolution by Justice Sully leads to the miscarriage of justice because Bryson is thinking that Sully has determined the substantive matters effectively.

HIS HONOUR:   You use judicial names and titles, please.

MR COCHRANE:   I thought I did, your Honour.

HIS HONOUR:   Well you did not.

MR COCHRANE:   Did I not say Justice Bryson?

HIS HONOUR:   No.

MR COCHRANE:   Well, I apologise.  Certainly I intended to, your Honour.  Justice Bryson was using the judgment of Justice Sully and looking at it in a way that Justice Sully had not determined the issues.  He had determined only the occupier question and the possession question.

HIS HONOUR:   And your motion to be let in.

MR COCHRANE:   Yes, but that was only ‑ ‑ ‑

HIS HONOUR:   I am not putting it against you, but it is the fact, is it not?

MR COCHRANE:   That was only to be joined as a defendant.

HIS HONOUR:   Yes, that is right.

MR COCHRANE:   Yes, but that could only be if indeed he was an occupier.

HIS HONOUR:   Yes, I understand that too.

MR COCHRANE:   And he could not be, because of the findings by Justice Sully, which was not dealing with any of the substantive material in the Equity proceedings and was not recognising the equity that this man had under the transfer of lease of which Buddies Liquor was aware of it. 

HIS HONOUR:   Now, had notice been given to the landlord forthwith on this – the taking of this equitable assignment which is what it was.

MR COCHRANE:   The landlord was aware because the landlord was receiving rent.

HIS HONOUR:   I am not asking that.  Was notice given?

MR COCHRANE:   I understand it was not, but it was impliedly given by virtue of the way in which rent was being accepted and, also, if your Honour looks at the next annexure in that affidavit of Larry Nesbit Noble of 15 December 1998, your Honour will see that in that affidavit there is the facsimile to Peter A Simon Real Estate, and it is acknowledged, I think, and all parties would agree, that Simon Touma of Peter A Simon Real Estate, was the agent for Wah Lai Investment.  There it says, “The arrangement be the tenant is paying for all the costs of the renovations in regard with fire safety.”

MR McKENZIE:   It is agreed, your Honour.

MR COCHRANE:   Your Honour will see that is dated 4 December 1995.  That is three months after the commencement of the proceedings ‑ ‑ ‑

HIS HONOUR:   It is a long while after the date of the assignment, though, is it not?

MR COCHRANE:   Your Honour, it is three months after the date of commencement of proceedings.  There had been rent paid in between the time and there had been acknowledgment of rent being paid in part.  There had also been some contest in respect of it.

HIS HONOUR:   Justice Bryson was aware of that.  He said that might give rise to some inference of another lease.

MR COCHRANE:   Your Honour, Justice Bryson is only dealing with whether or not this fellow was an occupier.

HIS HONOUR:   Yes, all right.

MR COCHRANE:   It was not as to anything else.

HIS HONOUR:   Justice Bryson?

MR COCHRANE:   I am sorry, your Honour, Justice Bryson was looking at whether or not the injunction should be dissolved.

HIS HONOUR:   Yes.

MR COCHRANE:   And he was looking at Sully’s judgment and Sully’s judgment finding that he was not an occupier.  That was not a resolution of the substantive proceedings at all. 

HIS HONOUR:   Yes.  The whole of this is interlocutory.  I think everybody grasps that.

MR COCHRANE:   Yes, except Justice Windeyer was thinking that it was an appeal in relation to both of those judgments which it was not. It was related to what was before the Registrar General and whether or not the Registrar General, under section 55, is going to find, or may find, under the terms of that section which, if I might take you to, your Honour ‑ ‑ ‑

HIS HONOUR:   I understand that. Justice Windeyer referred to section 12A. He knows better than anybody, I would think, how this works.

MR COCHRANE:   Yes,. but, your Honour, I am taking you to section 55.

HIS HONOUR:   I know that, I know that.

MR COCHRANE:   And the Registrar General is to have “satisfaction of lawful re-entry and recovery of possession”.  Now, if it is unconscionable at the time of the consent judgment being obtained in proceedings where there was a miscarriage of justice, we would say, by virtue of the applicant here not being a party to those proceedings, he is being shut out.  There is a denial of natural justice in him being shut out.

HIS HONOUR:   There is a denial of some procedural fairness at some stage to these Buddies company, is there not?  It is their entry on the register that is about to be expunged.

MR COCHRANE:   They say – they consented to that, so there is not that at all.  They consented to it in the face of their knowing that they had already transferred their interest to the applicant.

HIS HONOUR:   All I am saying to you is they are not on the record in relation to this dispute about getting the registered title in order.  They are the registered title holder at the moment.  That is all I am saying to you.  Maybe they do consent.

MR COCHRANE:   If there was no request, Paul Vella would be on the title.  That is the very point, so we look at whether or not ‑ ‑ ‑

HIS HONOUR:   Look, you want some order that binds them.  You come to the Equity Court to get an order that binds interested parties.

MR COCHRANE:   That is so.

HIS HONOUR:   Exactly.

MR COCHRANE:   And that is what we are waiting for and we are still waiting.  So we want to preserve the particular asset.  We are wanting to preserve the property so that it might not be futile, that aspect of the Equity proceedings.  The only reason Justice Bryson took the action he did in respect of the injunction that had been consented to and was present was that the property was heavily mortgaged and, indeed, factually that would seem to be wrong.

HIS HONOUR:   That is not all he said.

MR COCHRANE:   He said also that the property was not present ‑ ‑ ‑

HIS HONOUR:   That was a matter that went to the balance of convenience, as he saw it.

MR COCHRANE:   It did.  Yes, that is so, your Honour.

HIS HONOUR:   Not the prima facie case.

MR COCHRANE:   Your Honour, there was a plethora of material that was before Justice Windeyer ‑ ‑ ‑

HIS HONOUR:   He said “there is no real prospect that the claim will succeed.”

MR COCHRANE:   With respect, your Honour, there was a plethora ‑ ‑ ‑

HIS HONOUR:   ….to get on the register.  He may be right or wrong.  All I am saying, that is what he said.  That is what he decided.

MR COCHRANE:   No, he did not say for us to get on the register.  He was looking at whether or not, on the substantive claim, there was a prospect and ‑ ‑ ‑

HIS HONOUR:   I am just reading from page 12.

MR COCHRANE:   Yes, your Honour.  He does say, in my opinion, that there is no real prospect and then he goes on to say that the property was:

heavily mortgaged, produce no income –

and those other things.

HIS HONOUR:   Yes, that is a balance of convenience.

MR COCHRANE:   Then he goes on to say, on page 13:

In my opinion, circumstances have changed profoundly since August and September 1996 ‑ ‑ ‑

HIS HONOUR:   That is on balance of convenience. 

MR COCHRANE:   No, your Honour, with respect, it falls into looking at whether or not the injunction should be dissolved and it goes to the evidence, including Justice Sully’s judgment and including what lack of evidence there was before him, in relation to the chance of the prospect of success in the substantive proceedings.  There was a plethora of evidence, and my learned friend, no doubt, if he might be invited, would concede that there was a plethora of evidence before Justice Windeyer that would show that there is a basis of which Justice Bryson was a little critical.

HIS HONOUR:   Yes.  Now, it is five to three, Mr Cochrane. 

MR COCHRANE:   As to legal submissions ‑ ‑ ‑

HIS HONOUR:   I would be assisted if you would explain to me, with reference to particular passages, other than the ones you have already referred to – and I understand your point about errors of fact – by reference to the judgment of Justice Mason, what it discloses in terms of error of principle which would attract intervention here at this stage in aid of your leave application, bearing in mind that you come to this Court seeking injunctive relief in the first instance, as it were, in aid of your special leave application, and that the relevant principles are as expounded by ‑ ‑ ‑

MR COCHRANE:   Burgundy Royale ‑ ‑ ‑

HIS HONOUR:   No, that is a stay case.  That is exactly why I said what I said to you.  The relevant principles expounded by Justice Gaudron in Elliott v Seymour 68 ALJR 173, applied by various Judges, including by myself in Marsden v Amalgamated Television 70 ALJR 535.

MR COCHRANE:   As your Honour pleases.  I am obliged to your Honour.

HIS HONOUR:   Now, with that in mind, can one approach Justice Mason’s reasons, because that is what one has to grapple with?  Granted all this background which you have outlined, where did he go wrong in terms of principle?  I understand what you say about the facts.

MR COCHRANE:   Yes, your Honour.  Firstly, your Honour, the matter was not properly litigated at all between Justice Sully, nor Justice Bryson and ‑ ‑ ‑

HIS HONOUR:   Which particular passage in Justice Mason’s reasons?

MR COCHRANE:   And in respect of page 4, your Honour, point 1 to point 7, and then the weight that was given to Justice Bryson, that his Honour expressed the view there was no real prospect that the claim to become registered proprietor of the lease would succeed.  Now, with respect, your Honour, Justice Sully did not deal with that.  Justice Bryson looked at the extinguishment of the position in rem of the lease.  However, that proceeded – indeed, the lodgment to the Registrar General preceded Justice Sully and his hearing of the proceedings in 1997 and then giving judgment in 1998; that the Registrar General has that material before him now which preceded Justice Sully.  None of that material before the Registrar General was agitated upon in relation to what was put before Justice Sully.

So we say that, in relation to then Justice Bryson relying on Justice Sully is erroneous, because it was not agitated upon.  Even before Justice Bryson, it does not appear to have been either.  We say that, as I put to you earlier in relation to the sequential aspects – and that is at page 3, point 9, we say that the comment at point 5, page 3:

The proceedings in the Common Law Division to which I have adverted were really antedated by some proceedings commenced in the Equity Division by the claimant.

Well, indeed, the proceedings in common law were commenced long before the Equity proceedings, not antedated by it. 

They sought to enforce against various parties the rights flowing from the 1994 transfer of lease –

Well, indeed, if that is referable to the Equity proceedings, that is probably not an unreasonable comment. 

and in the alternative to claim damages or compensation.

If I may, your Honour, the statement:

I am far from satisfied from that material that it gets anywhere near supporting any form of challenge, even of some form of unconscionable conduct –

with respect, your Honour, we just say that is wrong.  We say that if you looked at the material that was before Justice Windeyer, and the learned President had the opportunity of doing so, then there was a sufficient depth of material to reflect that there was a pattern of conduct in entering that consent order that showed a deceit on the court, that Buddies Liquor had already assigned its interest to Paul Vella.  Yet it was a signatory, through its solicitor, as was Meers through his solicitor, to having a judgment for possession against them and, effectively, against Paul Vella.  And yet Paul Vella is shut out.

The new material that his Honour speaks about at page 6, your Honour, we say that that new material is not the material that his Honour is considering, which was the one page document that was not tendered – that is the longhand letter from Chan Wah, that the Registrar General is unaware of but which admits that there is a tenant and the tenant is Paul Vella, not Buddies Liquor, and admits who the real estate agent was and so on. But the Registrar General is looking at, in section 55, the lawful recovery and recovery of possession by the lessor before then registering the request or recording the request and cancelling the lease.

Your Honour, the letter that Justice Mason, the learned President of the Court of Appeal, is speaking about is the letter annexure D to the affidavit of Larry Nesbit Noble sworn 15 December 1998.  I ask your Honour, if I may, that your Honour might read that letter because we say that it is a very important matter for consideration of what was in the mind of Wah Lai when it executed through its solicitor the consent order to have Buddies Liquor give up possession and excluded Paul Vella.  Your Honour will see in the third line, “for and on behalf of our tenant, Mr Paul Vella, who has in default out lease agreement.”  Your Honour will see it is 2 July 1996, the date of it, and it is to the Liquor Administration Board.

HIS HONOUR:   Yes.

MR COCHRANE:   The next paragraph, “The tenant has owed our company 12 months rental unpaid and water rates, council rates and land tax totally $115,697.75.  We have no alternative but to apply to the Supreme Court of New South Wales to obtain orders for repossession.”  If I might just interpolate there, your Honour, there was an affidavit before ‑ ‑ ‑

HIS HONOUR:   Is there some dispute by your client?

MR COCHRANE:   There is a dispute, your Honour, and there was a whole lot of documentation that was annexed to another affidavit by my instructing solicitor where there were council rates and water rates and there was a schedule as to payment through ‑ ‑ ‑

HIS HONOUR:   Do you say that figure of $115,000 is wholly wrong, that it should have been zero?

MR COCHRANE:   Well, the counterbalancing might well be the other way, your Honour.  There was other evidence before Justice Windeyer that, indeed, an amount I think of $160,000-odd had been paid ‑ ‑ ‑

HIS HONOUR:   There was some talk of set-off, was there not?

MR COCHRANE:   There is, your Honour, yes.  But as well as that there is the facsimile document which is the next page, annexure E in that affidavit, as to the arrangements with the tenant for paying the cost of renovation.  That is after the commencement of those common law proceedings to which the consent order for judgment was obtained.

HIS HONOUR:   Yes.  Now, as I right in thinking that these premises have been locked up since May 1996?

MR COCHRANE:   Apparently they have, your Honour, or soon thereafter.  There is a contract for sale in existence.  But there was, as to balance of convenience, substantial material put before the learned President that would reflect – and also before Justice Windeyer, but more so the President – that there had been a ‑ ‑ ‑

HIS HONOUR:   All I am trying to confirm is there is no continuing business on these premises?

MR COCHRANE:   No, there is not, your Honour.  But it would reflect that the value of the premises – there was a valuation before the learned President.  The valuation of the premises is now $2 million.  The statement by my learned friend’s instructing solicitor in his statement to this Court would reveal that the contract was entered into in December of this year, when indeed it was September of this year.  The reason for the on-going ‑ ‑ ‑

MR McKENZIE:   It is an obvious mistake ‑ ‑ ‑

HIS HONOUR:   I must ask you to finish fairly soon, like in five minutes, Mr Cochrane.

MR COCHRANE:   As your Honour pleases.  The reason of the urgency before the Supreme Court and in the duty list before Justice Windeyer was that contract and a three month term and then rescission argument in respect of seven days notice, and seven days notice has not – or was not given up to the stage it was before Justice Mason.

HIS HONOUR:   Presumably the objective of moving under section 55 is to clear the title for registration of a new purchaser.

MR COCHRANE:   Quite, yes, but what we say is that if, indeed, there is some delay because of awaiting the substantive proceedings to be heard, there should not be any prejudice because the property is now valued – on the balance of convenience, the property is now valued at $2 million.  The asking price, because it is a sell-on arrangement with the purchaser in that contract, apparently – and there is evidence of that and was before the

President – the sell-on price is $2.35 million or thereabouts and it is being sold at this stage at $1.6 million.  So, your Honour, it is going upwards and, in effect, there is a development application on it.  I do not think it has been approved as yet, but in looking at all of those aspects, we say that the balance of convenience actually works against the respondent to this application and not the other way.

HIS HONOUR:   Is there anything more you want to say before I call on Mr McKenzie to see what he says by way of response to what you have been submitting.

MR COCHRANE:   Yes.  Your Honour, firstly as to unconscionable conduct, Walton Stores v Maher, Fry v Lane, Blomley v Ryan, all of those cases, Louth v Diprose and Begbie v State Bank of New South Wales and Commercial Bank of Australia v Amadio, I would ask that your Honour consider all of those authorities.  I am sure your Honour is very familiar with them.  If your Honour wishes, I certainly can go to them.

HIS HONOUR:   I do not need them to be read again.

MR COCHRANE:   As your Honour pleases.  Your Honour will probably appreciate that I am referring to the very passages as to unconscionability within the learned judgments of their Honours that presided in each of those cases.

Your Honour, as to the arguments in relation to preservation of the particular asset, I refer your Honour to Patrick Stevedores.  Your Honour, that is on the table of authorities which I have set out for your Honour.  Burgundy Royale, of course, your Honour is familiar with, and your Honour mentioned to me, of course, Elliott v Seymour and I am obliged to your Honour, indeed more than obliged to your Honour.  There are also those other cases which I have made mention in the particular table of authorities, your Honour.

HIS HONOUR:   All right.  I will call on Mr McKenzie, I think.

MR COCHRANE:   As your Honour pleases.

HIS HONOUR:   Yes, Mr McKenzie.  Now, what do you say about these criticisms of Justice Mason’s reasons which, at least to some extent, seem to have some substance?  Whether it is determinative, I do not know.

MR McKENZIE:   Your Honour, the only – I was going to say that my submission would be that rather being here, we should be before Mr Justice Mason under some sort of slip rule.

HIS HONOUR:   Yes, I was wondering about that.

MR McKENZIE:   The matters seemed, in my case, to be that he put 1998 instead of 1996.  What I have said in submissions on this, your Honour ‑ ‑ ‑

HIS HONOUR:   Not just that, was it? The complaint is, in a way, that because there were three proceedings pending in the Court of Appeal, unsurprisingly his Honour tended to wrap them together and, it is said, in the course of doing so, he rather treated the judgments of Justice Sully and Justice Bryson as having greater final force, as it were, than they really did when one came to look at Justice Windeyer’s judgment, and the crucial question, really, for now, namely what was to be done with the title with this process on foot to expunge the entry of the lease, that his Honour did not really zero in sufficiently clearly on what flows under section 55 when triggered by this procedure here under section 12A, which has alerted Mr Cochrane’s client to try and stop this change in the registered title.

MR McKENZIE:   That material was, of course, put to his Honour.  It was late in the day and this decision, of course, was ex tempore.

HIS HONOUR:   Yes.

MR McKENZIE:   But there were two elements, as I understood them, of Mr Cochrane’s submissions in relation to the material on which the Registrar General had to work.  The first was this annexure D to Larry Nesbit Noble’s affidavit of the 15th.  Your Honour, I indicated in my written material that that was a document which was ‑ ‑ ‑

HIS HONOUR:   Where is it referred to in your written material, Mr McKenzie?

MR McKENZIE:   I am sorry, your Honour – perhaps it was in the affidavit of Mr Chan.

HIS HONOUR:   Maybe in Mr Chan’s affidavit I saw it.

MR McKENZIE:   I am afraid this is swimming  in front of me, your Honour.  It was a document which was in the Wah Lai’s discovery list numbered 83 before Mr Justice Sully.

HIS HONOUR:   Yes, I have seen a reference to that, that is right.  Let us just find it.  I am sure it is in the Chan affidavit.

MR COCHRANE:   Perhaps I might be of assistance, your Honour.  I believe it is annexure D to the affidavit of Larry Nesbit Noble ‑ ‑ ‑

HIS HONOUR:   We have the annexure.  The question is where it is referred to in your opponent’s written outline or in Mr Chan’s affidavit, that is the question.  Yes, here it is.  It is paragraph 6 of your outline, page 6.

MR McKENZIE:   Yes, your Honour, and it was caught up on one of the earlier ‑ ‑ ‑

HIS HONOUR:   It was discovery document 83, you say.

MR McKENZIE:   Yes, and it was a discovery document of which a copy was actually sought by, and supplied to, Stewart Levitt & Co who were Mr Cochrane’s present instructing solicitor’s predecessors.  It was in court throughout, as Mr Justice Windeyer found, on subpoena.  Before his Honour Mr Justice Windeyer we had overlooked that it was discovery document No 83 and simply tendered evidence of the subpoena and that the original came from the bundle.

Your Honour, but that document is not a pleading.  The pleadings themselves take issue with the tenancy after a point.  The material which excited Mr Justice Sully in relation to – and although his Honour did not deal in terms with an assignment of lease or an equitable interest, his Honour had before him, and he refers to in his affidavit, the pleadings in which that was certainly raised.  There were written submissions which have been exhibited before your Honour by Mr Vella’s solicitor at the time in which ‑ ‑ ‑

HIS HONOUR:   Yes, I should have a look at exhibit B.

MR McKENZIE:   That is in “W Chan 3”.

HIS HONOUR:   Yes.  Just sit down for a minute, Mr McKenzie, I just want to read these again a little more closely.

MR McKENZIE:   They start at page 64 of that bundle “W Chan 3”, your Honour, and you would go to page 65, paragraph 6.

HIS HONOUR:   Yes, thank you.

MR McKENZIE:   Now, his Honour Mr Justice Sully, as I have said, your Honour, did not deal with it in terms.  What he found was, he referred to the transfer and then slid on to some material before him from the Licensing Court.  There was an application by Mr Vella to the Licensing Court of New South Wales to obtain an hotelier’s licence in respect of the hotel.  In that application he had said that he had not been summonsed, charged or convicted of any offence.  That was wrong.  He had been.  The police objected to him as being not a fit and proper person.  That was evidence before Mr Justice Sully.  Then Mr Justice Sully used, to use his own words, found that Mr Vella was “intimately associated”, those were his words, in relation to an application by his de facto wife and a company in which his de facto wife and his son were the directors and shareholders, Craftmill Pty Limited, to in some way replace him as the licensee.

HIS HONOUR:   Could I just ask you this:  both counsel are getting so immersed in the past of this litigation, we have to look at the top of the iceberg at the moment, which is page 4 of Justice Mason’s reasons.  The last paragraph, the President says:

For various reasons which I will not repeat, his Honour –

Justice Bryson

considered the position as it then appeared, and expressed the view that there was no real prospect that the claim to become registered proprietor of the lease would succeed, in the light of events which have happened since August and September 1996.

What were they?  What is the crucial nature of August 1996?

MR McKENZIE:   Your Honour, I think his Honour is probably referring there to the commencement of the proceedings in the Equity Division, 2907 of 1996.  They were commenced in September.

HIS HONOUR:   And then he goes on:

A further application was made quite recently to Windeyer J  ‑ ‑ ‑

MR McKENZIE:   Yes, that was made in the last couple of weeks, your Honour.  The subject matter of that injunction was the same – they were having another go at it.  It was, in my submission at the time, tantamount to an appeal.

HIS HONOUR:   Yes, there is a debate about that.  Then the President says:

Windeyer J was presented with some evidence, said to be fresh evidence which entitled him to revisit…..  Technically it was open –

Well, that must be correct, must it not, changed circumstances?

MR McKENZIE:   Subject to this, your Honour, if I may say so.  The interlocutory proceedings before Mr Justice Sully – and there is no doubt they were interlocutory, and the English White Book makes it quite clear that they would be interlocutory over there  ‑ ‑ ‑

HIS HONOUR:   It was a different issue. Nothing to do with getting an injunction against the Registrar General. Not only were they interlocutory, they were about another set of legal rights. But, nevertheless, on an interlocutory level, I suppose, what was found there could be given some weight in what was now before Justice Windeyer as to this question of section 55 of the Real Property Act.  Then the President says:

I am far from satisfied from that material that it gets anywhere near supporting any form of challenge –

Yes.

MR McKENZIE:   He had that letter in front of him, your Honour, at the time.  I do not think there is any doubt his Honour was impressed with the time that had gone past, the delay that had occurred.

HIS HONOUR:   Yes, that certainly seems to be so.

MR McKENZIE:   And Mr Justice Windeyer was also impressed by that and the fact that appeals had not been taken in time.

HIS HONOUR:   That is explained to an extent, I suppose, is it?

MR McKENZIE:   I do not think it is explained in relation to this particular document, your Honour.  It was always there and the legal practitioners knew about it.  The proceedings before Mr Justice Sully, although interlocutory, represented a motion by Mr Vella outside to come in and they ran like a trial.  It was over about four days and ‑ ‑ ‑

HIS HONOUR:   Yes, it seems a very detailed judgment, if I may say so.

MR McKENZIE:   There was an enormous amount of evidence, including a lot of evidence by Mr Vella himself, a great deal of evidence by him.

HIS HONOUR:   And very clear findings of fact by Justice Sully, too.

MR McKENZIE:   A lot of that evidence is set out in annexures to one of the affidavits that is exhibited to your Honour by Mr Chan, I think 12 March 1998, for the purpose of the application before Mr Justice Bryson.  Now, it may well be that somehow this letter became submerged.  It is not necessarily a document that we would tender from our side but the opportunity was there for it to be tendered from their side.  That really is the only new material, subject to another document my friend has not referred to today which would seem to concern only the Buddies Liquor and Nelson Meers and not the client.  That was a document going to the fire works –rather the fire prevention works that were carried out at the premises.

But, your Honour, as to that letter, the best it does is to describe him as a tenant and to Wah Lie that is entirely consistent, in my submission, with how Mr Justice Sully found him.  He found that he was at the premises, he was always there.  Wah Lie always knew about him.  His findings on that were quite clear, but that he having done what he had done in relation to the business and the licence – and there is a very clear finding by his Honour that – if there was one thing that was clear to his Honour it was that Mr Vella was quite incorrect when he said that he had carried on business at the premises.  That is almost the first finding of fact that Mr Justice Sully made.

In relation to his presence at the premises, my submission is that this letter is as consistent with him being there in some capacity, as Mr Justice Sully found, he found that he was there as a helper around the place and, as Koleta Gleeson’s de facto husband, certainly a person of influence.  But, your Honour, that ‑ ‑ ‑

HIS HONOUR:   Do you agree that what is involved here was an exercise of power by the Registrar General under section 12A?

MR McKENZIE:   Yes, your Honour.

HIS HONOUR:   So that unless restrained by order under subsection (3) he will do as proposed?

MR McKENZIE:   Yes.

HIS HONOUR:   What is proposed is really taking steps provided in section 55 to ‑ ‑ ‑

MR McKENZIE:   He will, as I understand it, remove the lease from the title.

HIS HONOUR:   Yes, exactly.

MR McKENZIE:   And in relation to that he has the application by Wah Lai, which clearly addresses Buddies Liquor as the tenant.  Throughout that particular application they refer to the lessee but it also refers to the possession orders and it is a fairly clear reference to Buddies Liquor as the lessee.  Throughout this period, Buddies Liquor was, of course, the only lessee registered on the title.

HIS HONOUR:   What would be the consequence if it ultimately turned out at a trial that your opponent’s client should have got on the register as an assignee of this lease?

MR McKENZIE:   Your Honour, there would be ‑ ‑ ‑

HIS HONOUR:   What would the rights of the parties be then?

MR McKENZIE:   The parties would be left to their respective rights to damages against each other.

HIS HONOUR:   Yes, for breach of what obligation?

MR McKENZIE:   Your Honour, I do not – I have been thinking about that when I was doing those things last night.  The relationship between Wah Lai and Mr Vella at the outset, when there is no doubt that they knew he was coming in as tenant, is not clear.  At that time there were provisions in the lease to which I have referred in Mr Chan’s affidavit, which required certain formalities – very substantial formalities – to be carried out in relation to the protection of the liquor licence.  This was never ever done.  Then, as we now know, there was some sort of shifting of the tenancy between Mr Vella and Craftmill and Koleta Gleeson.  Of course, the transfer was not registered – was not lodged for registration until after the ejectment. 

Mr Vella’s action would seem to be more against himself for not setting up those formalities.  I say that – it is difficult to say that without sounding flippant, but perhaps against Buddies Liquor in some way there is no proved privity between himself and Wah Lai on which he could – no sort of contractual privity on which he could sue.  He has a claim – or he alleges he has a claim against Wah Lai for damages for work that he did ‑ ‑ ‑

HIS HONOUR:   He says he paid rent and that may found some claim of a lease between him and the head lessor, to use that expression, directly.  But that would not be a registered lease, I suppose.

MR McKENZIE:   No, your Honour, it would be, in my submission, putting this letter at its highest, it would be a tenancy.

HIS HONOUR:   Yes.

MR McKENZIE:   And that is something that Mr Justice Sully was not prepared to countenance, given what had happened in the applications to the liquor board.

HIS HONOUR:   Yes.  I have taken you off your course.  Is there anything else you wish to ‑ ‑ ‑

MR McKENZIE:   No, your Honour.

HIS HONOUR:   Yes, very well.  Yes, Mr Cochrane, do you wish to reply briefly?

MR COCHRANE:   Very briefly, your Honour.  The comment about shifting of tenancy, for example, to Craftmill Pty Limited, there is no evidence of that as such.  The document itself, the transfer of lease, does not refer to Craftmill at all or Craftmill Pty Ltd.  Craftmill was controlling the business.  There is no doubt of that, the business at the Waterloo Tavern and Koleta Gleeson was the licensee and she was under some constraints by virtue of an agreement with Craftmill and that was a document that was exhibited before Justice Sully.

Your Honour, other than that, I would not seek to put anything further before your Honour.

HIS HONOUR:   Yes, thank you.  I will take a short adjournment.

AT 3.30 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.41 PM:

HIS HONOUR:   There is before the Court this afternoon a summons dated 18 December 1998, the substance of which is an application for injunctive relief to be effective until the hearing of the special leave application filed the same day. The order would restrain the second respondent, the Registrar General of New South Wales, from registering Request No 2267234 or from taking any action pursuant to that request. The action referred to is action by the Registrar General under section 55 of the Real Property Act 1900 (NSW) (“the Real Property Act”). Service of that proposed action which has been given under section 12A of that statute.

The application for special leave seeks special leave to appeal from the whole of the judgment of the President of the New South Wales Court of Appeal given on 16 December 1998.  There were three sets of proceedings in the Court of Appeal, arising out of judgments of Justice Sully, delivered on 29 January 1998, Justice Bryson of 17 June 1998 and, finally, of Justice Windeyer of 11 December 1998.  In relation to the first two matters, the matters were out of time.  All three judgments were technically interlocutory in character as well.  The President regarded the prospects of leave to appeal being granted in relation to the interlocutory judgments of Justices Sully and Bryson as very remote.  He could see no basis for granting any injunction in aid of those applications. 

The immediate issue here arises from the proceedings before Justice Windeyer.  His Honour refused an application to restrain the Registrar General taking the steps now sought to be restrained in this Court.  The President saw no error in the way in which Justice Windeyer had addressed the issues before him.  Accordingly, as regards that matter also, his Honour saw no footing for the grant of any injunctive relief in aid of the pending application for leave to appeal to the Court of Appeal.

The reasons of the learned President were delivered ex tempore in circumstances of some urgency.  It is apparent that there has been little or not time for revision of the typescript of the reasons for judgment.  The applicant here has pointed to what is said to be some significant errors of fact.  It also appears that those criticisms were not directed to the President at the time of delivery of the oral judgments or shortly thereafter. 

The land concerned in this dispute is premises at Waterloo of which the first respondent has been in possession and control since 15 May 1996.  No business is presently conducted there and the premises are locked up.  The applicant in this Court seeks to preserve the registered title in its present state so that it may become registered as transferee of the lease, the removal of which from the title is the objective of the present pending action by the Registrar General.  In that sense, although interlocutory in form, the injunctive relief would be of considerable significance in substance as placing the parties in a final position as regards their respective rights as regards the operation of the Real Property Act. 

The relevant principles in this Court concerning an application made here for interlocutory injunctive relief in aid of a pending application for special leave are indicated by Justice Gaudron in her judgment in Elliott v Seymour (1994) 68 ALJR 173. What her Honour said has since been applied, for example, in Marsden v Amalgamated Television Services (1996) 70 ALJR 535. In applying what was said by her Honour I bear in mind, as I have already indicated, the significant effect of the denial of interlocutory relief in this present case.

The history of the litigation was referred to, with particular treatment of the earlier judgments of Justices Sully and Bryson, by Justice Windeyer in his judgment, and later by the President.  Criticism is made by the applicant of those judgments in various respects but it was, I think, open to Justice Windeyer, having regard to the history of litigation and the interlocutory nature of the proceeding before him, to refer to earlier interlocutory judgments.  This was so albeit they were directed immediately to different legal aspects of the total controversy between these parties. 

Having considered the submissions that are made orally and in detail in writing in support of the present application by the summons dated 18 December I come to the conclusion that there would be no real prospects of success on the special leave application were it to be prosecuted.  There is no question of principle involved.  It would follow that the order sought on the summons should not be made.  Accordingly, I dismiss the summons.

I think that should be with costs.  Do you seek costs, Mr McKenzie?

MR McKENZIE:   Yes, your Honour.

HIS HONOUR:   I do not think you can resist that, Mr Cochrane.

MR COCHRANE:   I do not believe so, your Honour.

HIS HONOUR:   No.  Dismissed with costs.  Exhibits A and B in this Court may be returned to counsel for the application. 

MR COCHRANE:   As your Honour pleases.

HIS HONOUR:   Court will now adjourn sine die.

AT 3.53 PM THE MATTER WAS CONCLUDED