Von Risefer & Anor v Permanent Trustee Company Ltd

[2000] HCATrans 425

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  

Brisbane  No B67 of 2000

B e t w e e n -

EUSTACE VON RISEFER and ELIZABETH VON RISEFER

Applicants

and

PERMANENT TRUSTEE COMPANY LIMITED

Respondent

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 28 SEPTEMBER, AT 10.51 AM

Copyright in the High Court of Australia

MR M.J. DRYSDALE:   I appear for the respondent, if your Honour pleases.  (instructed by MacGillivrays)

MRS E. VON RISEFER appeared in person.

HIS HONOUR:   Take a seat, Mrs von Risefer.

Mr Drysdale, you appear for the respondent and is this your application?

MR DRYSDALE:   No, it is an application by Mrs von Risefer, your Honour.

HIS HONOUR:   Yes, Mrs von Risefer, would you tell me what your application is, please?

MRS VON RISEFER:   Yes, your Honour, I…..appear for ‑ ‑ ‑

HIS HONOUR:   I know it is difficult.  Could you speak up, though, please?

MRS VON RISEFER:   Yes. I do appear for my husband ‑ ‑ ‑

HIS HONOUR:   Excuse me, could you address that microphone?  That might assist, I think.  Can you move along, please?  Yes, you go ahead, please.

MRS VON RISEFER:   I do appear, your Honour, for my husband and on my behalf.

HIS HONOUR:   Yes, you want to speak for you husband and yourself.

MRS VON RISEFER:   Yes, I do have his authorisation if this is necessary.

HIS HONOUR:   You will have to speak up.  It is very difficult to hear you.

MRS VON RISEFER:   I do apologise for that and the difficulty to understand me as well.  Your Honour, only this morning I was – the respondents, they serve me with the documents they did file yesterday and not on the 26th, Tuesday, before 4 o’clock as they had been instructed by the Registrar of the High Court and they serve me only this morning, so, therefore, I will argue about that material that is before this Court.

HIS HONOUR:   What documents did they give you, Mrs von Risefer?

MRS VON RISEFER:   Your Honour, it is an outline of submissions on behalf of the respondent and I will argue about not being filed and an affidavit on their behalf.  I do believe that I do have grave difficulties to represent myself and my husband and I did comply with the orders that were given by the High Court, therefore, I expect the same from them and I will like to have them not just five minutes before that Court, so, therefore, I do – I will give out those documents to be filed.

HIS HONOUR:   What do you say about that, Mr Drysdale?

MR DRYSDALE:   Your Honour, could I read an affidavit by Tony James Newton.

HIS HONOUR:   What date is ‑ ‑ ‑

MR DRYSDALE:   It is sworn today.  It is an affidavit as to attempts at service yesterday and it deposes to the fact that the address for service provided on the documents and Mrs von Risefer was not at that address.

HIS HONOUR:   Has Mrs von Risefer a copy of that affidavit?

MR DRYSDALE:   Yes, your Honour.

MRS VON RISEFER:   Your Honour, they are been notified for my new address.  After all, they were the ones that put me out of my house and I have to use my sister’s address.  Another irregularity on that service:  they have been in that house yesterday after 7 o’clock in the night and I do believe that this is against the rules of serve a document.  I believe it is prior of 6 o’clock or 5 o’clock, and, again, that was not the way they are supposed to do it.  It is always that they use all that technique.  Always I be the one to be notified or to be served with important documents on the right time.

HIS HONOUR:   Yes, but, Mrs von Risefer, you are obliged when you file papers in this Court to give an address for service, and the address for service that you gave was not the address where you could be found.

MRS VON RISEFER:   Your Honour, they were after 7 o’clock.

HIS HONOUR:   No, I know that, but they were after 7 o’clock, presumably, because you were not to be found at the address which was stated in the papers that you filed in the Court.

MRS VON RISEFER:   Your Honour, we are in the Court of Appeal, and they ‑ ‑ ‑

HIS HONOUR:   I am sorry, speak up.

MRS VON RISEFER:   We are in the Court of Appeal and they do have our new address.  I make so that Mr - - -

HIS HONOUR:   That is not the evidence, Mrs von Risefer.  The evidence is that they had to consult a Referdex and make a deduction as to where you might be living which was a place different from the address shown in the papers that you filed in the Court.

MRS VON RISEFER:   Your Honour, they have been notified for my new address and they have to serve those documents prior of 26th, 4 o’clock.  I do have the order that was given from the High Court.  I did comply with that.  I went in person to deliver all my documents to serve those documents on Friday and Tuesday prior of 4 o’clock and they have my new address.  It is 139 Pebble Beach Drive.  We are before the Court of Appeal.  They have been notified for the new address.

HIS HONOUR:   But, Mrs von Risefer, leaving that side for the moment, this is your application.

MRS VON RISEFER:   Yes.

HIS HONOUR:   So, you should be ready to argue it.  You should be ready to argue it when you file your own documents.  You should now be able to demonstrate to me, if you can, why I should grant a stay of the orders that have been confirmed by the Court of Appeal and you should be ready to argue that.  To get the submissions in advance at all of the other side is an advantage to you.

MRS VON RISEFER:   Your Honour, according to - the order was given by the Registry of the High Court – they have to file the documents before 4 o’clock of the 26th, therefore ‑ ‑ ‑

HIS HONOUR:   Just wait a moment, Mrs von Risefer.  Mr Drysdale, was there an order of any kind or was ‑ ‑ ‑

MR DRYSDALE:   Not that I am aware of, your Honour.  There was a direction given that – or in correspondence from Mr Wickham that states – it is dated 22 September and it states:

If you intend to present oral argument yourself, you should confirm so in writing…..If you wish to file written submissions in the matter,

they must be filed in the Brisbane office of the Registry no later than 4:00 pm, Tuesday, 26 September 2000.

There was no direction that the outline of argument be delivered to Mrs Von Risefer, in any event.

HIS HONOUR:   And, I suppose, if you wanted to, you could just rely upon oral submissions.

MR DRYSDALE:   Yes, and if she objects that is what I will simply do.

HIS HONOUR:   Mrs von Risefer, it is an advantage for you to get written submissions from the other side at all.  They are not obliged to give you any written submissions.  They are not even obliged to give the Court any written submissions.  This is your application.  You should be ready to argue it.  What I am going to do is stand this matter down until the next matter is concluded and then I am going to call your matter on and you should be ready to deal with it at that stage.

MRS VON RISEFER:   Thank you, your Honour.

HIS HONOUR:   Do you understand?

MRS VON RISEFER:   Yes.

HIS HONOUR:   Yes.  I do not know how long that will be, Mrs von Risefer.  I do not think it will be under half an hour, it will probably be longer, but if you can be ready and you can look at Mr Drysdale’s document in the meantime.

MRS VON RISEFER:   Yes.  Thank you, your Honour. 

HIS HONOUR:   I will stand this matter down until later today and I will adjourn this Court until I am notified that the other matter is ready to go on.

AT 10.54 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 4.15 PM:

HIS HONOUR:   Yes, Mrs von Risefer.

MRS VON RISEFER:   Your Honour, I was wondering that – I do believe you have a very busy and difficult day and there is a lot to be covered, so if the Court thinks that we can have ‑ ‑ ‑

HIS HONOUR:   I am going to proceed to hear this matter, Mrs von Risefer.

MRS VON RISEFER:   Your Honour, that means this Court will allow me to cover all those errors by the lower court.

HIS HONOUR:   Yes.

MRS VON RISEFER:   That will take some time.

HIS HONOUR:   You say whatever you want to say.

MRS VON RISEFER:   If the Court thinks to have an adjournment and come back with a solicitor another day, that will be ‑ ‑ ‑

HIS HONOUR:   No, I am not going to come back another day.  I am going to hear this matter today.

MRS VON RISEFER:   Thank you very much, your Honour.  Your Honour, this morning the issue of the address for service was raised.

HIS HONOUR:   You do not need to worry about that now.  You have had time to look at the documents.

MRS VON RISEFER:   No, that was not the point of the time, but I just have to refer that in the attention of the Court that in their…..document where it was delivered at it was the new address, so they were aware of the new address.

HIS HONOUR:   All right.

MRS VON RISEFER:   Just for the Court to know.  Your Honour, I have to refer – and I will do my best with the time – exhibits which have been filed on 11/9/2000 and affidavit with exhibits which has been filed on 26/9/2000.  Because I am not familiar with those proceedings, do I have to start covering the issue of the lower court error in law with that or I have to go through with the application for leave or special leave to appeal?  What is the – do I have to start – I do apologise for – I am not familiar with that.  That is why ‑ ‑ ‑

HIS HONOUR:   No, it is all right, Mrs von Risefer.  I have your application for special leave to appeal to the High Court and I have looked at that.  What you are seeking – you really want a stay of the orders that were made by Mr Justice Byrne and affirmed by the Court of Appeal.  You do not want those orders to be put into effect, is that right?

MRS VON RISEFER:   Yes.They have to be ordered to stay because Justice Byrne, he was biased, prejudiced, and there is a letter before the Court which was raised with Justice Moynihan and that was to be canvassed by the Court of Appeal and because they never take under consideration that I knew the result and I knew that Justice Byrne will be not fair and will be prejudiced and against.  He did not allow me, first, to have the adjournment which I request, pending to investigations that were on their way in the Justice Department of the Ministry in Victoria where is the jurisdiction for La Trobe Home Loans.  Justice Byrne, in the course of justice, to postpone the hearing pending to new findings, new investigation, and ‑ ‑ ‑

HIS HONOUR:   Mrs von Risefer, the hearing before Justice Byrne lasted 18 days, did it?

MRS VON RISEFER:   Nineteen, your Honour, 19 days, and finally – I will start with my affidavit of 11/9.  There is a document which was filed before Justice Byrne, adjournment for two months for the following grounds, to have that investigation, which was under the way already by the Victoria Justice Department which was conducted by senior investigator of that area, and she was only for two months when she got my complaint and pending to that investigation I request to have an adjournment.  I did request an adjournment from his Honour Justice Byrne to have a legal representative. 

I can do something today.  I can understand more than I did before one year exactly.  Through experience, and after all those – the next page of that exhibit, exhibit A of the affidavit of the 11th, the first page of the exhibit A, it is that adjournment which I request and was not granted by the court.  The next of exhibit A is 25 November 1999.  I did complain against Justice Byrne, how he started the trial and how he proceed, that I knew about the result and that I were not going to have a fair go, a fair hearing.  I did request from the Justice – from the senior judge administrator that there is – a number of documents were forged.  There is - damages were suffered by the…..and, again, there was another letter on the same exhibit to the

Attorney‑General where we refer the matter, that we like that case to be directed from civil to criminal because there are a number of forgeries.

Again we have the same luck.  We are on the first day of the trial, your Honour, and this is the exhibit B of the same affidavit and we start with exhibit - transcript - 3.  His Honour Justice Byrne:

His Honour:  My associate has looked for the papers for the judge and can’t find them.  Where are they? 

My friend here, Mr Drysdale, he said that:

the only pleading is the Writ, specially endorsed Writ.  There is not defence filed to date.  It is an unusual matter.

His Honour:  How can this be?

What happened, your Honour, there was a specially endorsed writ.  Then the defendants brought an obligation.  They entered an appearance on 1 June.  They then, on 24th, file a summons seeking orders to stay the execution of the writ, which execution of writ was granted pending two conditions.  I have to follow the conditions of deposit the sum of 750 before 30 March 1999, which I did.  I complied with that condition.  That condition was for the two parties.  I complied.  They have not complied.  I have to deliver an affidavit and a chronology of my payments.  I comply, I deliver that document in time, and they have to deliver in two days their response to that affidavit and that was to be with registered post.  They failed to do that.  They have not complied with that.

HIS HONOUR:   Mrs von Risefer, you have had a trial and you have had an appeal.  Is that not right? 

MRS VON RISEFER:   Yes, your Honour. 

HIS HONOUR:   There was an appeal to the Court of Appeal.  I do not, incidentally, seem to have the reasons ‑ ‑ ‑

MR DRYSDALE:   Your Honour, the appeal has not been heard.

HIS HONOUR:   It has not?

MR DRYSDALE:   No.  What has happened is that Mrs von Risefer has filed the appeal.  She has made three applications to the Court of Appeal for a stay of ‑ ‑ ‑

HIS HONOUR:   And has failed ‑ ‑ ‑

MR DRYSDALE:   - - - on each occasion.  This application is seeking special leave from the refusal ‑ ‑ ‑

MRS VON RISEFER:   Your Honour, there are irregularities - - -

HIS HONOUR:   It purports to be an application for leave to appeal.  That is the document of 15 September 2000, is it not?

MR DRYSDALE:   Yes, the summons.

HIS HONOUR:   Mrs von Risefer, you have made three applications to the Court of Appeal for a stay, is that correct?

MRS VON RISEFER:   Yes.

HIS HONOUR:   The application that you have made to this Court is for leave to appeal.

MRS VON RISEFER:   Yes.

HIS HONOUR:   Is there any other application?  Is there an application for a stay separate from this?

MRS VON RISEFER:   Yes.

MR DRYSDALE:   Yes, there is, your Honour.

MRS VON RISEFER:   There is an application and this is exactly the document where the new address is and ‑ ‑ ‑

HIS HONOUR:   All right.  Do not worry about ‑ ‑ ‑

MRS VON RISEFER:   If I can hand to ‑ ‑ ‑

HIS HONOUR:   Mrs von Risefer, this Court practically never, practically never, grants an application for special leave before the matter has been heard by the intermediate Court of Appeal, that is to say – now, just listen to me; I am trying to help you, to tell you something.

MRS VON RISEFER:   Yes.

HIS HONOUR:   This Court will usually, practically never, hear anybody on an application for special leave until the appeal to the Court of Appeal has been heard.  So that not only are you very, very unlikely, in those circumstances, to get special leave, but also this Court would regard the matter as being in the hands of the Court of Appeal, both as to stay and otherwise.  You have to show me two things at least.  You would have to show me that you had a very good chance of getting special leave and, if you got special leave, of winning the appeal.  Now, let me tell you, you have got practically no chance of demonstrating to me that you will get special leave.

MRS VON RISEFER:   Your Honour, if I understand correct here, I have three applications to stay the proceedings.

HIS HONOUR:   Yes, I know that, and they have been rejected.

MRS VON RISEFER:   And they have one application before the Court of Appeal to dismiss the appeal.  They lost it as well.  So, therefore, I am before this Court because I was refused even until yesterday to have access into my file.  There is irregularities, there is unjust document contract, there is unfair, unjust and only yesterday I realised that Justice Byrne, he start a trial with – after Mr Drysdale, he point him that he can collect the affidavit I have on my hands, to start the trial, exhibit 2, amended affidavit, and that affidavit was not even sworn by me because it was not ready document to put or to file before the Court of Appeal.  Therefore, once my case was heard by Full Court of Court of Appeal and once everybody is prejudiced because they have got a very big problem, they have set aside – we have a cross‑claim.  I have a claim against the said mortgagee, the Permanent Trustee.  I have a claim.  I suffered damages. 

They did a trial of 19 days without me to be in default, without any fairness.  He was disqualified for being biased.  He amend the last minute, despite he said to them that, “Is it a little late, Mr Drysdale, to amend something now that you have closed your case?”  The case was closed on 7 December and they amend, against the other party which was me.  I was the one.  I was not in default.  I was not in arrears.  I was the one disadvantaged, sitting next to them, not know anything about what is amended, what is that and what is that.  And Lord Griffith, he advised the authorities that it is better to expose the negligent solicitors than to allow an amendment the last minute, not on the beginning, the last minute.  They amend, they change the liability.  They had a case without pleadings, without defence, without any documents to support the judgment. 

Finally, he delivered the judgment of 9 June and he took the writ down from the grave, because that was set aside.  He went against the jurisdiction of the court, of the Supreme Court.  He went against other judge order.  Justice White ordered the permanent stay.  That is why, at least, I ask this Court, because I am here to demonstrate that, to prove that my case is unique.  It is not an abuse of process.  I just have to go through the first transcripts, how Justice Byrne, he asked Mr Drysdale, “I have difficulty with a permanent order for stay.  Misconceived nature of application of that time.”  What was his jurisdiction to sit on that trial and to appeal against another justice’s judgment.  That judgment was permanent stay.  I have got all those documents before this Court and he was asking, “What is the source of my jurisdiction to set the order aside?”

The authorities again are Lord Griffith is that when somebody has a judgment set aside, and that is the way Justice Byrne he deliver his judgment, a judgment of 28/1/99, set aside, and then he continue with the same writ which was final, finished.  They have to bring another action.  But how they can do that?  They are not the mortgagee.  They do not have the mortgage.  They defraud all the Australian authorities.  I have the documents where it is unjust document of mortgage, not any related agreement.  I have got all the regulations about the Property Act and the Land Act.  Unless there is a related agreement, which we never have, not related agreement, and here again Mr Drysdale he say to his Honour Justice Byrne that we cannot prove with witnesses unless the document itself – and I can give you there – the actual document itself, there is not provision for witnessing.  Well, how are we going to prove it is their signatures?

Now, what he did, all those forgeries – and only yesterday I have got the fourth document of the mortgage document and the deputy registrar of the Supreme Court, he advised me that you were restrained to get near to the file.  So I was restrained to have a copy of the mortgage document which was against all the rules and the common law.  When there was four different documents of mortgage, forgeries, they were before Justice Byrne.  He knew about the forgeries and he continue.  I know today, unjust documents, even the court further can – “court may reopen unjust transactions”.  They got this file with four forgeries.  The Commissioner of the Police and the Federal Police are waiting on that investigation now with the forgery over the mortgage document and I spent 20 days in that court.  I spent 20 days with my husband suffered left…..stroke.  That is because of that court and the way Justice Byrne he dealt with that trial, to be with empathy against all the rules. 

And if this Court will say that our last hope to be heard and to have fairness is not going to be accomplished, then I have to raise another issue today.  This Court has some submissions which I have got only today and they deny – they deny that that was ever been the cross-vesting laws been raised before.  Now, I have to remind Mr Drysdale, and I have to give this Court the knowledge that an obligation – my obligation was, before Justice Byrne, that the High Court constitutes lack of assistance or explanations where assistance or explanations is necessary, placing one party at a serious disadvantage vis-à-vis the other and lack of education and specially in legal terms, which I was the stupid one.  Now, I contacted the Court twice ‑ ‑ ‑

HIS HONOUR:   Mrs von Risefer, just listen to me for a moment, would you?

MRS VON RISEFER:   Yes, your Honour.

HIS HONOUR:   Mrs von Risefer, if you are right about all of these matters and, therefore, your appeal to the Court of Appeal succeeds ‑ ‑ ‑

MRS VON RISEFER:   I will dismiss that.  I will dismiss that.  I will abandon that appeal so I can come before this Court because I never ‑ ‑ ‑

HIS HONOUR:   That will not assist you.  You must listen to me if I am trying to help you, you see.

MRS VON RISEFER:   Yes, your Honour, thank you.

HIS HONOUR:   If you were to succeed, either in the Court of Appeal or, indeed, even in the High Court, the Permanent Trustee Company Ltd, there is no suggestion that it is not a very substantial company with a great deal of money and sufficient money to pay costs and to pay any damages, if you can prove them, that you have suffered.  Now, what do you say about that?

MRS VON RISEFER:   Your Honour, before I will answer to that question I will say one thing.  Justice Finkelstein – I beg your pardon, yes, I do have to answer that question and then I will continue, because I have the promise that I will cover a few areas, very important areas.

HIS HONOUR:   I am going to put you on a time limit.  You see, if you apply for special leave to appeal in the High Court, you are allowed only 20 minutes.  I am going to give you longer than that now, even though this is not even the application for special leave, but I am not going to let you repeat indefinitely what is in your documents.  Now, what do you say about what I put to you, that if you turn out to be right about all of these matters, and if you win ‑ ‑ ‑

MRS VON RISEFER:   Okay, your Honour, I have the question to this immediately.

HIS HONOUR:   Let me just repeat it, and if you win ultimately in this Court, this company – there is no suggestion that it does not have money to pay you.

MRS VON RISEFER:   That question, your Honour, will be answered exactly that Permanent Trustee is the litigants and they are in fraud and forgeries.  No party can do other unjust and forgeries if they are already in the High Court.  They are litigants.  They are called to pay other – they are winning, the company.  They have lost a case from FAI because they have fraud and forgeries.  They does not have any money to pay.

HIS HONOUR:   Where is the evidence of that?

MRS VON RISEFER:   There.  If I can ‑ ‑ ‑

HIS HONOUR:   What is that document?

MRS VON RISEFER:   Please, they are documents ‑ ‑ ‑

HIS HONOUR:   Just tell me what it is, please.

MRS VON RISEFER:   This is exactly Permanent Trustee Australia v FAI.  They are in the High Court litigants and they have breached the public trust and that was before Justice Pincus??.  He never ‑ ‑ ‑

HIS HONOUR:   Are they the reasons for judgment in a case in the High Court?

MRS VON RISEFER:   This is to answer ‑ ‑ ‑

HIS HONOUR:   Just tell me what they are.

MRS VON RISEFER:   This is to answer that the property ‑ ‑ ‑

HIS HONOUR:   No; tell me what the documents are, please.

MRS VON RISEFER:   I am sorry, your Honour, it is the difficulty I have, and that is why I got this far.

HIS HONOUR:   Just tell me what they are.  Do not tell me what you are doing.

MRS VON RISEFER:   This is Permanent Trustee Australia Limited v ‑ ‑ ‑

HIS HONOUR:   Show them to Mr Drysdale, please.

MRS VON RISEFER:   Mr Drysdale has got his copies and that was before him - after all, it is his ‑ ‑ ‑

HIS HONOUR:   I will not look at them until Mr Drysdale has seen them.  What are they, Mr Drysdale?  Are they reasons for judgment?

MR DRYSDALE:   Your Honour, the first is reasons for judgment in a matter of Permanent Trustee Australia Ltd v FAI.

HIS HONOUR:   Of which court?

MR DRYSDALE:   It is the Supreme Court of New South Wales, Equity Division.  It is noted that it is Permanent Trustee Australia and not Permanent Trustee Company Limited.

MRS VON RISEFER:   It is the same company, Mr Drysdale.

MR DRYSDALE:   There is a ‑ ‑ ‑

HIS HONOUR:   Do you mind if I look at them?

MR DRYSDALE:   No, not at all, your Honour.

HIS HONOUR:   Pass them up.  I will look at these documents, Mrs von Risefer.

MRS VON RISEFER:   Thank you, your Honour.

HIS HONOUR:   And you say that they show that this company cannot afford to pay you, is that what you are saying?

MRS VON RISEFER:   Yes, your Honour.  I can say that ‑ ‑ ‑

HIS HONOUR:   Let me read it.

MRS VON RISEFER:   Thank you.

HIS HONOUR:   The reference to the High Court, Mrs von Risefer, is a reference to an application that seems to have been made in April 1997.

MRS VON RISEFER:   Yes, your Honour, now they lost that case and they are entitled to have compensation of $40,000 from FAI because they have breached the public trust and they did forgeries and fraud, and I have the public  ‑ ‑ ‑

HIS HONOUR:   All right, but was there a judgment against them, and if so, for how much?  Against Permanent ‑ ‑ ‑

MRS VON RISEFER:   $350 million there was in 1997.  All the directors been sacked because of the forgeries.  There is the Deputy Commissioner of Taxation, because we claim all those things before Justice Byrne and the Federal Police, they investigating their laundering money and that was not relevant to who was my mortgagee because, your Honour, they fail – I subpoena them under the rules – on today’s submissions, they advise us that the subpoena was not under the rules and that subpoena was issued by the Supreme Court and they fail to produce any documents related with who - where the funds are coming from.  If that court or justices not here, the Trade Practice ministry will be the next one who will intervene and the Taxation and the Federal Police.  Now, we have a misleading ‑ ‑ ‑

HIS HONOUR:   No, look, listen, Mrs von Risefer, I am not interested in anything that the Federal Police are or are not doing.

MRS VON RISEFER:   I understand that, your Honour.

HIS HONOUR:   It has nothing to do with this case and, in fact, you should not be making allegations against people about criminal conduct without some evidence of it, some evidence, and in respect of conduct which may be relevant to this case and not otherwise.

MRS VON RISEFER:   That is fine.  Your Honour, four different mortgage documents.  I have the rule from the regulations.  It is unjust.

HIS HONOUR:   Who are those documents between?

MRS VON RISEFER:   Between us and them.  Your Honour, I only ‑ ‑ ‑

HIS HONOUR:   Mr Drysdale, did Justice Byrne give written reasons?

MRS VON RISEFER:   Yes, it is here.

MR DRYSDALE:   Yes, he did, your Honour, I could take you to them.

HIS HONOUR:   Could I get those, please?

MR DRYSDALE:   It is in an affidavit of Tony James Newton, Exhibit TJN-1, your Honour.

HIS HONOUR:   All right. 

MR DRYSDALE:   Many of the allegations that Mrs von Risefer refers to now ‑ ‑ ‑

MRS VON RISEFER:   Oh, yes.

HIS HONOUR:   Please sit down, I was speaking to Mr Drysdale, Mrs von Risefer.

MR DRYSDALE:    ‑ ‑ ‑ are set forth in paragraphs 20 and 21 of his Honour’s reasons.  It was filed yesterday, affidavit of Tony James Newton. 

HIS HONOUR:   Did the Court of Appeal give reasons for - - -?

MR DRYSDALE:   Yes, they did, they are also in it.  Do you have a copy of the affidavit?

HIS HONOUR:   Exhibited to the same – no.

MR DRYSDALE:   I will hand you up mine, your Honour.

HIS HONOUR:   It might be on here, but I have not – it may be here.  I think it is here.

MR DRYSDALE:   The decision that appears to be under appeal was delivered by the Court of Appeal on 30 August and it is TJN-4.

MRS VON RISEFER:   But that is 16th, please, by Justice Byrne.

MR DRYSDALE:   It now appears that the judgment under appeal was made 16 June, your Honour.

HIS HONOUR:   Yes, that is the judgment of Justices Pincus, Moynihan and Atkinson.

MR DRYSDALE:   That is 30 August.  On 16 June it was Justice Pincus sitting alone.

HIS HONOUR:   But the application for leave to appeal – I see.

MR DRYSDALE:   Yes.

HIS HONOUR:   The application for leave to appeal is from the whole of the judgment of Justices Pincus, Moynihan and Atkinson of 30 August.

MR DRYSDALE:   Yes, your Honour.

HIS HONOUR:   Now, the application for a stay is a separate application?

MR DRYSDALE:   Yes, it is.  It seems to be ‑ ‑ ‑

HIS HONOUR:   What she would need, to have any efficacy, would be a stay of the judgment of Justice Byrne, would it not?

MR DRYSDALE:   Yes.

HIS HONOUR:   Is that what is sought?

MR DRYSDALE:   I have said in my submissions that is the effect of what is sought, but what is being asked for, in fact, is a stay of the enforcement of the order of the warrant which was issued pursuant to the order.

HIS HONOUR:   We would treat it as an application for a stay of the judgment of his Honour Justice Byrne, is that right?

MR DRYSDALE:   Yes.

MRS VON RISEFER:   Your Honour, we have difficulty with that judgment.

HIS HONOUR:   I know you have difficulty with it.  You are trying to appeal to the Court of Appeal against it, are you not?

MRS VON RISEFER:   Your Honour, they have great difficulty with the writ.  The writ on 12/2/1999 before Justice White, the application was to set aside the writ and the judgment separate, and they were treated by Justice White as applications, and they were permanent stayed, and Justice Byrne - thanks to Mr Drysdale - he start the trial without any writ, without pleadings, without any statement of claim, and that was interest and home loan.  He advised his Honour Justice Byrne to collect the affidavit which I have in my hands unsworn to start a trial 19 days with an unsworn affidavit which only yesterday been proved by me, because I did not even have access to the file.  I was the party and I was denied, I was restricted to have access.

Now, Justice Pincus, he advise here on his reasons that he saw direct the registered document of mortgage, exhibit 3, and he does not know that there is exhibit 3, exhibit 27, exhibit 88, exhibit 89.  They are all different mortgages.  This is unjust document and the most important I have learned only just before a little while in the library is that when a solicitor or a credit provider failed to give a document, a copy of the mortgage to the debtor, that is unjust, misconduct.  Therefore, the Court needs to order the opening and go through that transaction again.

Justice Byrne, he knew from my solicitor that she lost the file and I never collect a copy of my mortgage.  Justice Byrne, he knew that I was never have any copy of my mortgage because of Permanent Trustee and La Trobe Home Loans, they copy four mortgages, and they sold to unknown sources, and this is not related to this case that they are laundering money, that who is my mortgagee?  Of course, I do not care if they are laundering money, but not before the justice because this against international laws, against laundering money, and that meant….that I will take it further as much as I can.  They came before the court halfway of the trial and they put before the court that they are foreign investors; foreign banks, they own the mortgage, my mortgage, against the foreign requisition about having security over the land.  What happened when I request the Austrac and the Custom…..the compliance to see what investors and how much money they got in Australia from Asia, they have nothing, not even a penny.

Of course, it is very convenient for them, they have to choose between five years of gaol for a foreign requisition or 25, laundering money.  Yes, it is not related with me, but I am the only party I suffer here.  In the balance of convenience, they sought the mortgage to a few persons, they have got their money, they default me without being default, they have got their money from the insurance, they have got the property, they are going to have the money.  What about in the balance of convenience, who is losing?  I have two companies based in that property and Justice Byrne four times he denied to amend those parties.  Mr Drysdale, he mislead again the court by claiming in affidavit that we are the only occupants in that house, despite there are two companies.

Today I have filed a litigation, a claim against Permanent Trustee for my losses because they have breached my CRA, they obtained credit informations without my authority, they lodged twice CRA false without being defaulted and without being continuously ‑ ‑ ‑

HIS HONOUR:   I am going to allow you another five minutes of oral submissions and no more.  You have been addressing me now for considerably longer than you would be allowed address me on ‑ ‑ ‑

MRS VON RISEFER:   Your Honour, I will take the advantage of those ‑ ‑ ‑

HIS HONOUR:   Listen to me, please.

MRS VON RISEFER:   Sorry, your Honour.

HIS HONOUR:   Do not interrupt me when I am speaking to you.

MRS VON RISEFER:   Sorry, your Honour.

HIS HONOUR:   I have allowed you considerably longer than you would be allowed on an application for special leave.  Now, your material sets out a great deal of what you want to argue.

MRS VON RISEFER:   I know, your Honour.

HIS HONOUR:   There is no need to repeat that.  Is there anything further you want to tell me?

MRS VON RISEFER:   Yes, your Honour.  Justice Byrne  ‑ ‑ ‑

HIS HONOUR:   You have five minutes.

MRS VON RISEFER:   Always I was restricted with the time.  Justice Byrne back on the first day, he asked – 83 page transcript – he asked Mr Drysdale, “Where is the duplicate original, Mr Drysdale?---I do not have the original.  The original will be lodged in the Title Office.  Where is the duplicate original?

HIS HONOUR:   What are you reading from?

MRS VON RISEFER:   From the transcript which is before this Court filed to support the fourth document of the mortgage which been lodged.

HIS HONOUR:   All right, well, go on then.  Go on, you have four minutes.

MRS VON RISEFER:   Now, we have four different mortgages, two duplicates, two originals.  As the police advised me, because this is a fraud involved.

HIS HONOUR:   Do not tell me what the police have advised you, please.  That is hearsay and it is not evidence and I will not hear it and I will not have you come into this Court and throw allegations around against people, respectable people, you are just not permitted to do it.

MRS VON RISEFER:   Your Honour, that document was dumped full by his Honour Justice Byrne.  He was the one, he asking on many occasions, “Mr Drysdale, where is that document, and where is that document?”  Why we have four different documents?  This is fraud.  Once again, I will put those allegations with the consequences of what I am saying and anybody can go against me for what I claim.  My allegations today is that there is a fraud and no one can have possession of land if that goes contrary to the 70 section  where is criminal, not against with criminal - they got possession of my property with fraud, with forgeries.  Therefore, in the ‑ ‑ ‑

HIS HONOUR:   You do not say they did not lend you money, do you?

MRS VON RISEFER:   Your Honour, the damage I suffered ‑ ‑ ‑

HIS HONOUR:   No, no, answer my question.  Do you agree the company lent you money?

MRS VON RISEFER:   Your Honour, if I have to cover that in five minutes ‑ ‑ ‑

HIS HONOUR:   Just answer my question, it is a simple question.

MRS VON RISEFER:    ‑ ‑ ‑I will not be able.  I am the one, we are litigants, your Honour.

HIS HONOUR:   Please answer my question.  Did they lend you money or not?  Did the company lend you money?

MRS VON RISEFER:   Your Honour, Justice Byrne he failed ‑ ‑ ‑

HIS HONOUR:   No, no, did the company lend you money?

MRS VON RISEFER:   Your Honour ‑ ‑ ‑

HIS HONOUR:   Did the company lend you money?

MRS VON RISEFER:    ‑ ‑ ‑ the company lent me money without conditions.  Therefore, we do not have an agreement how we have to pay that off and, of course, we are going to do that, but not before the litigation, not before the cross-claims will be – my order before this Court, it is interlocutory relief, prevention of any enforcement of the warrant, 90 of 2000, of the Supreme Court of Queensland until after the litigation of claims has been completed.  Second, these actions to be transferred to the Federal Court due to restriction, error or cross-vesting laws in special federal matters.

Everything related with that loan, they have breached all the undue influence of loan, misconduct.  Not any mortgage document, forgeries, and we are talking about ‑ that I went before to read that I did raise – I did have before Justice Byrne an application to request the transfer of that procedure to the Federal Court, due to cross-vesting and special federal matters, because this is against the banking ‑ this is against the fair conduct, no agreement, forged documents, and they have breached my Privacy Act.  They have breached – they have amended the last minute against the provision to amend, but when there is a litigation, the amendment needs to be in the beginning and not in the end, on the last minute.

They did close the day – they did close their trial, therefore, so they were not entitled to amend, to amend why he refused in so many other occasions to amend the other two parties, and in the balance of the convenience, I have the case of Jennings Constructions who has spent a lot in that property.  What I’ve got today is that they got reserve price $290,000 for that property.  Why?  In the balance of convenience, who is losing?  Us, because they does not care about the consequences.  They are already lost their cases in the High Court.  They are going to be called to pay litigations and compensations for other people who they – who they cannot do that, and in the balance of convenience, we are the ones ‑ we spent and we improved and we have got who – we have got the valuation.  We spent over $100,000 in earthworks.

Before this Court there are the photographs of that unit, the Gold Coast Barramundi.  There are two companies based in that property.  There was not only residential, there was a business property as well, and I have to say that as well, too.  Under the regulations, they have to seal the mortgage document and every other document in this Court, before this Court, before the  Supreme Court and the Court of Appeal, there has nothing been executed, not under the regulations, but under the law, under the principles of to execute a document, not to forge a document the way they are experts.  And what about that they did error by dealing with the S57 transfer of proceedings, section 5 cross-vesting laws?  They never took any way to that.  Number two, before him was ‑ ‑ ‑

HIS HONOUR:   Your time is up.  Is there anything ‑ I will give you an opportunity to say one more thing, if there is anything further you want to say.

MRS VON RISEFER:   Yes.  In the balance of convenience, your Honour, I do like to say that the property is worth – it is 650, it is security, it is there, who will win favour?  But I believe I am not the one ‑ I do have the security for what this Court requests for my case to be heard further in the High Court.

HIS HONOUR:   You say you have security.  What do you mean by that?

MRS VON RISEFER:   It is the property.  The property, your Honour, worth 650.  It is always available, and I do not request to this Court to move back to the property.  I want the property to be available for who will win to have the property, and I want it to have that special leave and the opportunity before natural justice and denial of justice, which I have in the Supreme Court, I need my case to be heard before the High Court.

HIS HONOUR:   All right.  Thank you, Mrs von Risefer.

MRS VON RISEFER:   Thank you.

HIS HONOUR:   Mr Drysdale, the loan was, what, 350,000; is that right?

MR DRYSDALE:   It was 360,000.

HIS HONOUR:   And I think you say there is a contract, is there, for the sale of the property?

MR DRYSDALE:   Yes.

HIS HONOUR:   And what is the contract price?

MR DRYSDALE:   The contract is $300,000, your Honour.

MRS VON RISEFER:   And the reserved ‑ ‑ ‑

HIS HONOUR:   Please, Mrs von Risefer ‑ ‑ ‑

MRS VON RISEFER:   Sorry, sorry.

HIS HONOUR:   ‑ ‑ ‑ you have had plenty of opportunity to speak.  I am talking to Mr ‑ ‑ ‑

MRS VON RISEFER:   Sorry, your Honour.

HIS HONOUR:   Please do not interrupt.  Mr Drysdale, so your client lent 360,000 and is selling it for 300,000.

MR DRYSDALE:   Yes.

HIS HONOUR:   I do not think that is necessarily an irrelevant consideration.

MR DRYSDALE:   It is not a relevant consideration for your Honour.  But, in any event, if need be, I can place, if there is an affidavit – there was an affidavit before the Court of Appeal ‑ and this is giving evidence from the Bar table, to some extent.  The condition of the property when my client recovered possession was, on any view, appalling.

HIS HONOUR:   Your client, what, only lent the money – when did your client lend the money?

MR DRYSDALE:   The client lent the money in 1997 and the property was recovered in August this year.

HIS HONOUR:   And what was the property?

MR DRYSDALE:   It is a property at Helensvale.

HIS HONOUR:   Is it a residence?

MR DRYSDALE:   Yes, it is a residential property.  It was quite a large property, but nothing was finished on it and ‑ ‑ ‑

HIS HONOUR:   I have – some photographs have been put into evidence apparently.

MR DRYSDALE:   That is via Mrs von Risefer.

HIS HONOUR:   I beg your pardon?

MR DRYSDALE:   The photographs that my client had are before the Court of Appeal.

HIS HONOUR:   The last thing I should do is form a view of my own value, but it is a lot of bricks and mortar for $300,000.

MR DRYSDALE:   Yes, and the ‑ ‑ ‑

MRS VON RISEFER:   And three hundred ‑ ‑ ‑

HIS HONOUR:   No, do not interrupt.  I told you, please.

MRS VON RISEFER:   I am sorry, your Honour.  I do apologise.

HIS HONOUR:   Just do not do it, Mrs von Risefer.

MR DRYSDALE:   The state of the property was such when my client recovered possession that it was wondered whether the land, as bare land, was worth more than with the house on it.

HIS HONOUR:   It is an enormous looking house.

MR DRYSDALE:   Yes, it is.

HIS HONOUR:   Is there any evidence of how large it is?

MR DRYSDALE:   It is about 70 squares, or something, I think, your Honour.

MRS VON RISEFER:    Your Honour, if I ‑ ‑ ‑

HIS HONOUR:   No, do not – no, please.  I will give you – I will give you another opportunity, Mrs von Risefer.

MRS VON RISEFER:    Sorry, sorry.

HIS HONOUR:   I will give you another opportunity.  You go ahead.

MR DRYSDALE:   Yes.  If Mrs von Risefer was able to prove the property was sold at under value ‑ ‑ ‑

HIS HONOUR:   I know that.  I know that.

MR DRYSDALE:   ‑ ‑ ‑ that would give rise to an action for damages.  It would not give ‑ ‑ ‑

HIS HONOUR:   I know.  I am not suggesting this is the case with your client, but one often wonders whether, in fact, financiers proceed, perhaps, as they would with their own properties.

MR DRYSDALE:   I can say it was widely advertised and the photographs which are before the Court of Appeal, the condition of the – have you the report there?

HIS HONOUR:   What have you asked for, Mr Drysdale?

MR DRYSDALE:   No, Mrs von Risefer does not have it, your Honour.

HIS HONOUR:   Has there been any material about value filed, apart from assertions by Mrs von Risefer?

MR DRYSDALE:   In the Court of Appeal there was a valuation of somewhere between $250,000 and $300,000.

HIS HONOUR:   Who made that?

MR DRYSDALE:   That was the real estate agent and a property valuer, whose name I cannot recall, I am sorry, your Honour.  There was evidence given by two valuers at the trial from Preston Rowe Paterson and Mr Laurie Hamilton, who were of the view that the evidence was somewhere in the range of, to the best of my recollection, $400,000, when completed.

HIS HONOUR:   For a 70 square house?

MR DRYSDALE:   Yes.  The property was never completed, your Honour.

HIS HONOUR:   I wonder how much land there is there?

MRS VON RISEFER:    Three acres, your Honour ‑ ‑ ‑

HIS HONOUR:   No.  Look, I am asking Mr Drysdale.

MRS VON RISEFER:    I try – I try to help you.

HIS HONOUR:   Yes.  Well, I ‑ ‑ ‑

MR DRYSDALE:   It is a little more than a hectare, I understand, your Honour.

HIS HONOUR:   All right.  I am just looking at the interior here, marble floors, a little Versailles almost.

MR DRYSDALE:   Yes, your Honour.

HIS HONOUR:   In fact, turrets ‑ towers slightly French renaissance style.  Marble floors, big fenestration, marble-lined bathroom, very big sitting room, carved marble fireplace by the look of it.

MR DRYSDALE:   I can provide for your Honour’s interest, a copy of a sort of condition report that was prepared on 21 June.

HIS HONOUR:   Has that gone into evidence in any court so far?

MR DRYSDALE:   That was exhibited to the affidavit of the representative from Permanent Trustee in the Court of Appeal.

HIS HONOUR:   Right, and you would like to tender that.

MR DRYSDALE:   Yes, your Honour.

HIS HONOUR:   I do not see any reason why I should not receive this, Mrs von Risefer, because it is part of the Court record.

MRS VON RISEFER:   Your Honour, I object because I have so much other material before this Court and have not considered this Court about the forgeries, the condition and the valuations of the house.

HIS HONOUR:   Look, why I am looking at it from your point of view ‑ I am really trying to help you, Mrs von Risefer.

MRS VON RISEFER:   Yes, your Honour, thank you very much.

HIS HONOUR:   I mean, let me put it to you that on the question of getting special leave, you have real problems, but I am concerned ‑ ‑ ‑

MRS VON RISEFER:    Your Honour, my ‑ ‑ ‑

HIS HONOUR:   No, listen to me.  I am concerned that perhaps you may have a point – I am not saying you have – you may have a point on the balance of convenience ‑ ‑ ‑

MRS VON RISEFER:   Exactly.

HIS HONOUR:   Listen to me.  No, please, why do you not let me finish?  Hear what I have to say.  You may have a point on the balance of convenience if, in fact, the house can be regarded as a security ‑ ‑ ‑

MRS VON RISEFER:    It is, your Honour.

HIS HONOUR:   ‑ ‑ ‑ for significantly more than what you might have to pay by way of repayment and what has to be recovered by way of repayment of loan and costs.  You do not dispute that these are photographs that are taken.  They are in evidence.  They have been provided, with an affidavit, I think ‑ ‑ ‑

MR DRYSDALE:   And they were taken a long time prior to the ‑ ‑ ‑

HIS HONOUR:   Yes.

MR DRYSDALE:   Yes.

MRS VON RISEFER:   It is four-years-old house ‑ ‑ ‑

HIS HONOUR:   No, please.  No, look, how many times do I have to tell you?

MRS VON RISEFER:   Sorry.  It is my problem, your Honour.

HIS HONOUR:   Look, how many ‑ you have to abide by the rules.  I am talking to Mr Drysdale.  I will give you an opportunity.

MRS VON RISEFER:   I am sorry, your Honour.  I understand that ‑ ‑ ‑

HIS HONOUR:   Well do not interrupt.  I will give you an opportunity.

MRS VON RISEFER:   Thank you, your Honour.

HIS HONOUR:   Mr Drysdale, these photographs are in evidence.

MR DRYSDALE:   Yes.

HIS HONOUR:   Is there any evidence of what Mr von Risefer’s occupation was, whether he was a builder?

MR DRYSDALE:   He was a marine biologist or engineer.

MRS VON RISEFER:   And you destroy him, physical and ‑ ‑ ‑

HIS HONOUR:   Please, please, Mrs von Risefer.  Look, what I will have to do, if you keep on interrupting ‑ ‑ ‑

MRS VON RISEFER:    Sorry, your Honour.

HIS HONOUR:   ‑ ‑ ‑ I will exclude you from the Court.  I do not want to have to do that but, I mean, you must abide by the Rules.  There were valuations before the Court, were there, Mr Drysdale?

MR DRYSDALE:   There were in the ‑ ‑ ‑

HIS HONOUR:   They are part of the record in the Court of Appeal, are they?

MR DRYSDALE:   No, they are part of the record in the trial itself.  The record book has not been prepared for the Court of Appeal yet.  There was an affidavit which exhibited this document in the Court of Appeal, and it is an appraisal prepared by Derek Boyd, who is licensee of Principal Real Estate at the Gold Coast.

HIS HONOUR:   And you want to tender that?

MR DRYSDALE:   Yes, thank you, your Honour.

HIS HONOUR:   Yes, well I will receive that.  It is 9,000 square feet approximately?

MR DRYSDALE:   Yes. 

HIS HONOUR:   A very ambitious house.  Were there any other valuations or appraisals before the Court of Appeal, or before Justice Byrne?

MR DRYSDALE:   There were valuations done at the time of the initial financing before Justice Byrne but no other valuations that I am aware of before the Court of Appeal.

HIS HONOUR:   Your company – there has been no manager or receiver appointed?

MR DRYSDALE:   No.

HIS HONOUR:   There was litigation involving Permanent Trustee.  Do you know what that was?  Was that that big litigation in Melbourne?

MR DRYSDALE:   I am not aware, your Honour, no.

HIS HONOUR:   No.

MR DRYSDALE:   I am not aware of any inability to pay damages on the part of the company.

HIS HONOUR:   It may have been settled anyway. 

MR DRYSDALE:   Yes.

HIS HONOUR:   I am not even sure, Mr Drysdale, and I suppose if there is a sale of an undervalue ‑ ‑ ‑

MR DRYSDALE:   It gives rise to a claim for damages.

HIS HONOUR:   Yes.

MR DRYSDALE:   If your Honour looks at the affidavit - the affidavit I have received is from Mrs von Risefer dated 26 September.

HIS HONOUR:   Yes.  Would you extract for me the application I am dealing with today which is the application for – we are treating it as an application for a stay of judgment.

MR DRYSDALE:   For a stay, yes.

HIS HONOUR:   Is that right?

MR DRYSDALE:   It is a summons dated 15 September.

HIS HONOUR:   Summons?  Could you give me that?  Yes, you wanted to draw my attention to something in Mrs von Risefer’s affidavit.  Is that right?

MR DRYSDALE:   Yes.  It is paragraph 3 but it is on the eighth sheet of the affidavit.

HIS HONOUR:   Is that (iii), Mr Drysdale?

MR DRYSDALE:   No, 3, your Honour.  It is on page 8 of the affidavit, although the pages are not numbered on my copy.  It starts “In the balance of convenience”.

HIS HONOUR:   Yes.

MR DRYSDALE:   They are all matters that go to damages and when she is, in effect, seeking injunctive relief the court will not grant injunctive relief where damages are an adequate remedy.

HIS HONOUR:   Yes.  Right, well your written outline is clear, Mr Drysdale.

MR DRYSDALE:   Yes.

HIS HONOUR:   Is there anything further you want to say?

MR DRYSDALE:   To refer your Honour only to Miller v Jackson, the decision of the Court of Appeal in England (1977) as being authority for the proposition that it is a relevant consideration for the courts, in determining injunctive relief, to consider the impact that will have on third parties and in this case, the impact on the purchasers who - - -

HIS HONOUR:   Is there evidence of an unconditional contract?

MR DRYSDALE:   Yes, that is exhibited to the affidavit of Mr Newton, your Honour.

HIS HONOUR:   That is unconditional, is it?

MR DRYSDALE:   Unconditional.  A deposit of $30,000 has been paid and settlement is due on 16 October, I understand.  Yes.

HIS HONOUR:   All right.  Well, your submissions are clear enough.

MR DRYSDALE:   Thank you, your Honour.

HIS HONOUR:   Mrs von Risefer, you can reply but I am going to confine you in your reply only to anything that Mr Drysdale has said.

MRS VON RISEFER:   Yes.

HIS HONOUR:   Would you just listen to me before you do reply?

MRS VON RISEFER:   That is fine.

HIS HONOUR:   If what you say is right about the value of the house and it is being sold at a great undervalue, then you will have a remedy if you win your appeal.  That is an entirely separate matter and you can pursue that if you win your appeal.  Now, is there anything else you want to say to me?

MRS VON RISEFER:   Yes, only in response to what my friend here said.

HIS HONOUR:   Yes.

MRS VON RISEFER:   Mr Boyd, the agent who ‑ ‑ ‑

HIS HONOUR:   - - - did the appraisal?

MRS VON RISEFER:   Yes.

HIS HONOUR:   Yes.

MRS VON RISEFER:   He was the – I put an affidavit before the Court of Appeal and I explained that he was the reason I lost the property, River Downs, and we have a conflict of interest and that was before the Court of Appeal.  Before the Court of Appeal was that they damaged, they removed material, they damaged the house.  Second, valuation of Taylor Byrne here, the valuation saying - - -

HIS HONOUR:   Well, if you are right about that and if they are selling it at a gross undervalue then you may very well have a claim against the company and, indeed, against anybody who facilitated that.

MRS VON RISEFER:   What company, your Honour?  What company?  They are not exist, only in this company ‑ ‑ ‑

HIS HONOUR:   There is no evidence that this company is ‑ ‑ ‑

MRS VON RISEFER:   What more I have to bring in the balance of convenience?  This is from the High Court.

HIS HONOUR:   No, it does not satisfy - it does not establish that they are unable to pay any claim that you might have against them.  It just does not establish that.

MRS VON RISEFER:   Your Honour, $150 millions plus interest.

HIS HONOUR:   Yes, well where is the evidence that the company cannot pay that?

MRS VON RISEFER:   And they took only $40,000 from FAI.

HIS HONOUR:   The insurance, yes.

MRS VON RISEFER:   I have already a communication with the public interest at…..centre of Sydney and they have got a claim of ‑ ‑ ‑

HIS HONOUR:   No, I am not interested in that.  That has nothing to do with this matter.

MRS VON RISEFER:   But they cannot pay anybody so that means I will win the court and I will not be compensated because they will not going to be any longer.  They do not have the security to compensate me.

HIS HONOUR:   All right.  Is there anything further that you want to say in relation to what Mr Drysdale said and not otherwise?

MRS VON RISEFER:   Yes.  In relation what Mr Drysdale said, it is 580 thereabouts, the valuation which was back was back in 1997.  We got compensation.  We have got 30,000 up from the valuation of the land already since then every year from Gold Coast Council.  It is three acres…...  Now, thereabouts and this is before them, he got all the works we did in the property.  It is not only the money we borrowed, 360.  It is the works we did:  library, veranda, driveway, screened house, lagoon and the most important.  Taylor Byrne, he is talking about fair condition and he is talking about the fixtures of the house are all from Harvey Norman and it is new house.  They advertised the house, four‑years old house, as everybody can see in this Court, completely finished, and they advertise it for renovation.  They have got before you submissions and they claim that they have got reserve price $290,000, your Honour.  Why they have got 290.  Why they settle for 290 when I owe them 360 and then they will go to bankrupt me and I do not have the rights.  They destroy my husband.  He is with three university degrees.

HIS HONOUR:   Now that does not arise out of anything that Mr Drysdale said.  No, no.

MRS VON RISEFER:   It was said before Mr Drysdale what my husband’s occupation.

HIS HONOUR:   I know.  I merely asked Mr Drysdale what the occupation was.

MRS VON RISEFER:   Okay, in that case this is a finished home.

HIS HONOUR:   Now I am going to give you an opportunity to say one more thing.  Do you want to say just one more thing?

MRS VON RISEFER:   Yes.

HIS HONOUR:   And then I am not going to allow you to make any further submissions orally.

MRS VON RISEFER:   Yes, one thing, your Honour, I have to say that this house as the photographs show it was finished to the last detail and they got the house – possess it, mortgagee in possession, the last two months and they tried to destroy the house and do you know why?  I claimed that in the Court of Appeal that they want to sell at 290 to get the legal expenses and then to go after me again and try to bankrupt me.  Is that justice?

HIS HONOUR:   All right.  Well, thank you.

MRS VON RISEFER:   Why they advertise it for renovation?  Why they have 290?  They have got 360.

HIS HONOUR:   Thank you, Mrs von Risefer.

MRS VON RISEFER:   Why they have got reserve price?

HIS HONOUR:   You have said all of that.  Is there  ‑ ‑ ‑

MRS VON RISEFER:   Your Honour, I want to say another thing too.

HIS HONOUR:   All right.  I will allow you to say one more thing, yes.

MRS VON RISEFER:   Thank you.  I have concerns for you.  You have a very difficult day and I did request to have an adjournment so I can establish my prospects of winning and what I can see here is it is exactly the same tactic as Justice Byrne, you have got that I am not interesting for the law.  He always give me time:  “10 minutes, that and that”, and he used to take me out of the - - -

HIS HONOUR:   Well, you had 19 days before Justice Byrne.  It sounds a lot of time.

MRS VON RISEFER:   Nineteen days of suffering.  My husband he got a stroke.

HIS HONOUR:   Well, I know.  Litigation is painful.

MRS VON RISEFER:   We have got suffering, emotional…..and we lost our lives, six persons is this family.  We are litigants.  He failed to got reasons for our litigation and our damages and what happened to claim ‑ ‑ ‑

HIS HONOUR:   All right.  Thank you, Mrs von Risefer.  Thank you.  I have before me today a summons ‑ ‑ ‑

MRS VON RISEFER:   Your Honour, I forgot to give the plaintiff – sorry, the respondent gave another case and I have to give another case as well.

HIS HONOUR:   You have a case there?

MRS VON RISEFER:   Yes, of course.

HIS HONOUR:   What case is that?

MRS VON RISEFER:   If I will have only one minute, please.  This is a case of Jennings Construction.  They have interest over the land because of the excavations of the works they did and they improved the land.

HIS HONOUR:   Would you like me to look at that?  Could I see that document, Mr Drysdale.

MRS VON RISEFER:   I do have two caveats, your Honour, so there is not an innocent party.  They knew about those transactions.  They knew about the High Court and all the other proceedings and the fraud.

HIS HONOUR:   Yes, all right.  Thank you.

I have before me a document entitled “Summons” which has been filed in matter No B67 of 2000.  That matter is the matter of an application for leave or special leave to appeal as it is entitled.  The application for special leave is an application to appeal against a decision of his Honour Justice Byrne given in the Supreme Court of Queensland against the applicants on 9 June 2000.  That decision followed a hearing of no fewer than 18 days.  His Honour’s orders included that the respondent to this application recover possession of land.  The applicants have filed a notice of appeal in the Court of Appeal of Queensland but that appeal has not yet been heard.  On no fewer than three occasions the applicants have applied to the Supreme Court of Queensland, in effect, for a stay of execution of the orders of Justice Byrne. 

The summons which is before me today seeks “interlocutory relief, prevention of any enforcement of the warrant 90 of 2000 in the Supreme Court of Queensland until after the litigation of claims had been completed and this action to be transferred to the Federal Court due to jurisdiction error for cross-vesting laws in special federal matters.”  I am prepared to treat the application as an application for a stay of execution of all of the orders which were made by Justice Byrne as I think that that is what the applicants really seek.  The other relief which the summons seeks is some kind of an order that the proceedings be transferred to the Federal Court.  It was a matter that was not argued.  There is no evidence before me which would cause me to make such an order and there seems to be no basis upon which any such order should be made. 

Returning, however, to the application effectively for a stay of execution, I will not repeat all of the arguments which were advanced by the applicants who were represented by one of them in person, Mrs von Risefer, who spoke for her husband and herself.  The applicants, as I say, have not had their appeal heard by the Court of Appeal.  This Court very rarely grants special leave to appeal from a judgment of a single Justice of another court..  Almost always, this Court will only grant an application for special leave, assuming the relevant criteria have been satisfied, when this Court has the advantage of the decision of an intermediate court of appeal.  That has not occurred here.  Accordingly, the prospects of obtaining a grant of ‑ ‑ ‑

MRS VON RISEFER:   Your Honour, it was ‑ ‑ ‑

HIS HONOUR:   Please do not interrupt while I am giving judgment.

MRS VON RISEFER:   Sorry.

HIS HONOUR:   Accordingly, the prospects of the success of this application for special leave must be regarded as very slight indeed.  I was addressed by Mrs von Risefer and referred to some evidence going to the issue of the balance of convenience.  In substance, two matters were put.  Although I do not purport to provide a catalogue of all the submissions that were made by Mrs von Risefer, those two matters are that there was a risk that the respondent might not be able to restore the applicants to the position they were in, if, ultimately, they turned out to be successful.  The other submission was that the property, the subject of the proceedings, was such that it provided very great security, and certainly sufficient security, of itself to cover any amount that might be found to be due by the applicants ultimately if it were to be sold, that is to be say the balance of the loan, outstanding interest and costs payable under and in respect of the mortgage and the proceedings.  The mortgage to which I refer is the mortgage which was granted by the applicants to the respondent to secure money which was lent by the respondent to the applicants. 

I have considered those arguments but as I do not think that there is any realistic prospect that an application for special leave will be granted at this stage, I do not think that it is necessary to form any concluded view about them.  On the basis that the prospects of obtaining special leave are so slight at this stage alone, this application must fail. 

As to those other matters, I do not have any evidence before me that the respondent would be unable to restore the applicants to the position that they should have been in had they succeeded in defending the claim of the respondent against them but, indeed, even if that were so, I could not disregard the fact that already three applications in substance of the same kind as is now made to me have been made to the Supreme Court of Queensland and have failed.  So too there is evidence of value of the property falling short, even of the principal outstanding under the mortgage

Having regard to those matters, I dismiss the application of the applicants.

MR DRYSDALE:   I would ask for costs, your Honour.

HIS HONOUR:   Have you anything to say about that, Mrs von Risefer, the costs?

MRS VON RISEFER:   No, your Honour, but what I want to say is that I was promised that I will be heard today, and I did not, and I have to say that I came here from three judges because that was heard from three judges in the Court of Appeal.  So I was entitled to come here and request that, and I have the security and the balance of convenience, they does not have the security.  I put before this Court that they have the ‑ ‑ ‑

HIS HONOUR:   I have ruled against you on those matters.  Now, do you want to say anything about costs?

MRS VON RISEFER:   About the costs, why?  I was not allowed to be heard….fraud and now I am ‑ ‑ ‑

HIS HONOUR:   I have been listening to this case for almost an hour and three-quarters approximately, something of that order. 

MRS VON RISEFER:   Your Honour, I did request to have an adjournment.

HIS HONOUR:   Most of the time you have been speaking.  You put before the Court a great deal of written material to which consideration has been given.  Do you want to say anything further about costs?

MRS VON RISEFER:   Your Honour, what to say about the costs?  They have got my house.  They have got my house with ‑ ‑ ‑

HIS HONOUR:   But you have brought the respondent here on an application which has failed.

MRS VON RISEFER:   Which application has failed here?

HIS HONOUR:   The application for a stay.

MRS VON RISEFER:   I accused the denial of justice.  I accused that.  Justice Byrne, he erred.

HIS HONOUR:   Mrs von Risefer, I will hear you on the question of costs, and costs only.  Do you want to say anything about costs?

MRS VON RISEFER:   No, your Honour.

HIS HONOUR:   All right, thank you.  Mr Drysdale, I think you might need a certification for counsel.  Is that right?  I know other parties seem to ask for it.

MR DRYSDALE:   I think so.  I would ask for that, your Honour.

HIS HONOUR:   I order that the applicants pay the respondent’s costs of the summons.  I certify for counsel.  Is there anything further?

MR DRYSDALE:   No, thank you, your Honour.

HIS HONOUR:   Thank you.

AT 5.42 PM THE MATTER WAS CONCLUDED