Weston v Bannister

[1997] HCATrans 286

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone [phone]
Fax [phone]
  O/N 3503
  A  28.10.97

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M82 of 1997

BETWEEN:  MICHAEL WESTON

-and-

JOHN BRUCE BANNISTER   and ANOTHER

HAYNE J (In Chambers)

AT MELBOURNE, FRIDAY THE 17TH DAY OF OCTOBER 1997

AT 10.30 AM

HIS HONOUR:   Mr Weston, you are appearing for yourself, are you?

MR M. WESTON:   I appear in person;  yes, your Honour.

HIS HONOUR:   Yes.

DR K.P. HANSCOMBE:   Your Honour, in this proceeding I appear for the respondents (instructed by Price Higgins).

HIS HONOUR:   Yes, thank you, Dr Hanscombe.  Mr Weston, in accordance with the usual practice of the Court in these matters, I would propose to impose time limits on the time during which the application may be made.  I would propose to impose a limit on each party of 20 minutes.  Yes.

Now, Mr Weston, you may assume that I have read the papers and am  generally familiar with the matter.

MR WESTON:   And that would include this morning's affidavit in reply, would it?

HIS HONOUR:   Yes.  I have seen that as well, thank you, Mr Weston.

MR WESTON:   May I just be excused for a moment, your Honour?  I just mislaid my notes as I was moving up to the bar table and I am just a little lost without them.

HIS HONOUR:   Yes.  Now, do you have your notes?

MR WESTON:   Yes, I have found them now, thank you, your Honour.  For the record, your Honour, in my first affidavit I have made some objection to you hearing this.  I still maintain that objection but I am extremely concerned because of the serious situation in which the walnut trees have been placed because of my uncertainty of tenure on the farm that I think it is imperative that this be decided today.

HIS HONOUR:   Yes;  well, does it follow then that you want me to go on and deal with the matter today?

MR WESTON:   For the sake of the trees, I believe it is imperative.

HIS HONOUR:   Yes, I understand.

MR WESTON:   Now, I think there has to be some clarity for both parties in the situation today.

HIS HONOUR:   Yes.

MR WESTON:   I understand that the case of Burgundy - Jennings Constructions and Burgundy Royale tend to set out the main requisites for this type of application and Dr Hanscombe seems to agree with me on that.  The current situation, your Honour, is that there are two applications for special leave on foot before this Court:  one is the shire application;  and the second is this application. 

I believe that the shire application is more advanced - is more advanced;  it is up to the - I have not received a list of the contents of the application books yet but it should be underway - that part of it should be underway soon.

This, as I have said in my affidavit, because of the time restraints on my obtaining the reasons from the Court of Appeal, I have not been able to fully prepare a summary of this proceeding precisely but I believe that you can pick up the general gist from the summary in the shire proceedings, and I would presume as it is exhibited to the affidavit that you have a look at it.

HIS HONOUR:   Yes.  One of the important considerations in deciding whether or not to grant a stay pending hearing and determination of an application for special leave, is whether the application enjoys substantial prospects of success;  that is, whether it is likely that the application for special leave will succeed.  I think there would be advantage if you could direct your argument to that question in the first instance.

MR WESTON:   Yes.

HIS HONOUR:   That is:  why you say the Court would likely give you special leave to appeal.

MR WESTON:   Well, I would first, on the shire application ‑ ‑ ‑ 

HIS HONOUR:   Well, presently we are concerned only, are we not, with the action involving Mr Bannister and Mr Hartnett?

MR WESTON:   Well, I hear what your Honour says but I would have to differ from you in that but the legislature gives me the opportunity or the right to bring an application to the High Court and also to make an appeal to the Court of Appeal of Victoria;  and because this proceeding seems to have overtaken both of those, if this is not - one of the principle reasons for a stay is that - the other application and the remaining undecided appeal in the Court of Appeal will be rendered nugatory if I succeed on either one of them, or if I succeed in getting damages.

On the side of prospects of success:  I say that in the shire application in this Court it is based principally on the decision of the High Court in FAI Insurances v Winneke, in that the Administrative Appeals Tribunal made an administrative adjudication that affected my ability to earn a livelihood.  They made that administrative adjudication without giving me the right to be heard on the costs side of it, and this is where this whole massive litigation emanates from. 

The decision in FAI Insurances v Winneke is that type of decision is void, and that has been that general principle of where a person's livelihood depends on an administrative adjudication and the rights to be heard is not granted, that decision is void.  The High Court has upheld that decision in other cases such as the Annetts case, the State of Queensland v Litz, that used the words "that principle in law now is so well established it cannot be ignored";  and I say that I have a real prospect in that appeal of the original AAT determination being declared void, and that the judgment, which was the basis of the shire's execution, be set aside, and that I have made the concession in - I do not know whether it is in the summary, I remember it is certainly in the notice of appeal, and I do not think the notice of appeal got into the affidavit, but for the record now, I have made the concession in that if it was set aside and the money ordered to be repaid, I am prepared to pay it back to Messrs Bannister and Hartnett, and along with any other order that the Court makes in relation to moneys that the shire should pay if the judgment is declared void and I would then be in a position to re-finance Bannister and Hartnett out of this, and I have approached my original lender, Sandhurst Trustees, and had discussions and they would be quite willing to take me back, but it has to be on the basis that there is no debt forgiveness in the situation;  there has to be an actual Court finding that the decision was void and the whole default was in circumstances beyond my control.

Coming to this proceeding, your Honour, I have looked in the original pleadings.  My defence to the mortgage was that they were fully involved in it.  The findings of both Southwell J and the Court of Appeal is that there has - there was no evidence to support that.  I say they have both erred and they have both erred on a fine distinction that you set out - or not yourself set out, but it was set out by the Privy Council and you cited that passage in The Scorpion v The Pyramid Building Society.  I have not got the case right in front of me but, your Honour, I have quoted the particular passage that I am referring to and this concept of actual fraud has been a very difficult concept for me, as a litigant in person to grasp, and it was only on the second or third reading through Pyramid that I was able to say that "Yes, that bit, there is the evidence in the documents to prove that", and that is that - I have quoted the passage that ‑ ‑ ‑ 

HIS HONOUR:   I am generally familiar with the passage.

MR WESTON:   Yes.

HIS HONOUR:   Yes.

MR WESTON:   What I am saying is that the evidence is there.  What the Court of Appeal did not do, and this is my principle, that they did not allow me to take them to the evidence.  What I have tried to do is that I believe that the evidence shows that they became aware or they knew that there was a problem with this thing, and that I have received a false answer to the requisitions, and that they have then made - they have known it was false and they have not made any enquiries as to why it was false.  They have asked ‑ ‑ ‑ 

HIS HONOUR:   Let me make sure I understand what you are saying.  You say that Bannister and Hartnett received an answer to requisitions, the answer being given by Connor.

MR WESTON:   Yes.

HIS HONOUR:   And that answer was false, and they knew it was false.

MR WESTON:   Yes. 

HIS HONOUR:   Is that the essence of what you are telling me?

MR WESTON:   Yes;  that is it.

HIS HONOUR:   And what was the requisition that you say was answered falsely?  Just the substance of it, we do not need to go to the ‑ ‑ ‑ 

MR WESTON:   The requisition asked:  is there any litigation on foot?

HIS HONOUR:   Yes.

MR WESTON:   That would affect the property, the sale ‑ ‑ ‑ 

HIS HONOUR:   And the answer given was?

MR WESTON:   By Connor was "No".

HIS HONOUR:   Yes.

MR WESTON:   I rang Mr Hartnett on the 30th of June and as soon as I saw it, I said "What is the point in going ahead with this loan if the condition of the loan is that I terminate all the litigation with the shire and the personal injury that I had suffered in my arrest, and so forth?" and he said "No, that is not a requirement of - we will not require you to terminate it.  What we do want to know is all the - what is going on."  I gave him about 20 per cent of it over the telephone.  I said "I will write to you".  I gave the whole story to Mr Connor and he has answered the questions "No".  When they have checked the requisitions, it is in the affidavit - exhibits ‑ ‑ ‑ 

HIS HONOUR:   But go back a stage.  You had spoken to Bannister and Hartnett or had you ‑ ‑ ‑ 

MR WESTON:   Yes.

HIS HONOUR:   Yes.

MR WESTON:   I spoke personally to Mr Hartnett.

HIS HONOUR:   Yes.

MR WESTON:   And he said "Yes, we do not want it - you do not have to terminate it but we do want to know the detail;  what - " the file note is exhibited there, and it has been my contention that Bannister and Hartnett advanced this money because they knew it was me that - to terminate the litigation.  If the money had not been advanced, the litigation could not be terminated by Mr Connor.

HIS HONOUR:   Yes.

MR WESTON:   And when the answers came back down to them, there is - there was an exhibit there of the answers, they have gone through them, and this particular question 12, they have ticked it off, "No" is the answer and they have written a letter querying another answer, but they have not queried that one;  and that is what I say proves that they knew, because they have accepted that false answer without any query;  and if they had queried it, they knew it would have triggered me off, as to what Mr Connor was up to.  He needed the money to enforce his combination of circumstances for a settlement of all the litigation.  If he did not get the money, the litigation simply had to go on.

Which brings me to my next point on the merits of the whole thing;  and that is the Connor appeal.  He has been heard in July in the Court of Appeal and the decision remains reserved.  Their Honours - I have said in my affidavit - their Honours took the other side to the Brickenden case from the Canadian Supreme Court and the Privy Council.  I have obtained those cases and I have also read the decision of this Court in Makaronis - Panteon ...(indistinct)... where the fiduciary duty issue is given a thorough agitation and my view is that, and I believe there is ample evidence before you to show that Mr Connor had breached his fiduciary duty to them.

On my reading of those cases it is now my belief that I am entitled to say there is clear evidence from what is before you that there has been a failure to disclose material facts to me;  those material facts were crucial decisions I made;  and that I complain of that failure to disclose to me;  and I am entitled to be returned to the position that I was at in June 1994 when the failure to disclose took place.

HIS HONOUR:   Well, assume for the purposes of argument that you have a good case against Connor and that you have a good case against the shire.  How does that, either of those circumstances, affect the claim which Bannister and Hartnett have made on the mortgage which you gave?

MR WESTON:   I believe that there is a question of law in justice that where that mortgage has been - come about by circumstances that I did not know about at the time, and that is the failure to disclose to me.  I know this is the principal decision in the Privy Council on the Brickenden case, that you cannot assume what I would have done if I had been told.  The fact is that I have not been told, and therefore I complain about the failure to disclose and therefore I am entitled to be reinstated to my position.  The effect ‑ ‑ ‑ 

HIS HONOUR:   But a failure to disclose by Bannister and Hartnett?

MR WESTON:   No;  by Connor.

HIS HONOUR:   Yes.

MR WESTON:   And what I am saying, the special - the reason why special leave should be granted in this, and the point of notoriety or whatever it is that needs to be there to invoke the special jurisdiction of the High Court for special leave to appeal is this combination between the two things.  Where an injured - my right to remedy is my damages that I may get against Mr Connor or the shire.

[10.50am]

If the respondents remain at liberty to execute on their alleged mortgage, then my right that is given by statute is obliterated.  I think that is one of the principal questions of law.

HIS HONOUR:   That is the main point that you want to raise?

MR WESTON:   Yes.  That if they are allowed to execute, my chance of getting out of it with the shop, money from the Shire is gone, my chance of getting out of it with money from Mr Connor's damages is gone.  If you look at the - I believe they are going to have a major problem with that farm because of my own personal knowledge of running it etcetera.  And I think their chances ‑ ‑ ‑ 

HIS HONOUR:   Well, for the moment, Mr Weston, I think you may assume that it is at least arguable;  1) the property is unique;  2) that you may, you would contend you do, bring to that property skills of a kind that are not either replaceable at all or readily replaceable.  Does that ‑ ‑ ‑ 

MR WESTON:   Yes, that is part of it.

HIS HONOUR:   ‑ ‑ ‑ sum up the nub of what you want to say about the property?

MR WESTON:   Well, yes.  But it is just what I was trying to put to you was the balance of situation that perhaps you have to look at.

HIS HONOUR:   And that if you go off the property the damage to the property will be irremediable?

MR WESTON:   Well, I am not saying that.  It is the respondent's ability to recoup their contributor's funds.  You have the possibility of them selling the place and it making 2 or $300,000 which is half what is owed on it.  On the other hand you have the possibility that if I succeed on some of my damages you have a without prejudice undertaking to direct the money to the respondents and re-finance the thing out of it.  And I say the chances of them getting their money back on that situation are far better than selling the farm.  I am trying to run to time, I have got a few more things I wish to say.

HIS HONOUR:   Yes.  You have about another five minutes, Mr Weston.  I have the advantage of the clock, you do not, so I will warn you.  You go on for the moment.

MR WESTON:   Thank you.  And basically what I am saying on the legal point is, the principal legal point is that my statutory rights of appeal and application to the High Court will be obliterated.  That is the special point.  Can I take you to the material that I saw last night for the first time and that is the situation if they install the proposed manager.

HIS HONOUR:   As I say, for the moment, Mr Weston, I think the point which troubles me most in this and the point which I think you would be as well to focus on is this question of success or likelihood of success on special leave.  As I say, for the moment I am prepared to assume in your favour that the property is unique, if the property is sold you cannot replace it and that the property, you say, may suffer harm or not be worked to best advantage if you are not there to work it.  So for the moment, at least, assume those facts.

MR WESTON:   Well, my note was that it is a disaster waiting to happen.

HIS HONOUR:   Well, that is a rather more colourful way of putting it but it captures the point.

MR WESTON:   Right.  Okay, I am trying to address what you are wanting me to focus on.

HIS HONOUR:   Yes.

MR WESTON:   Can I put it to you this way, that I was approached by Mr Connor for him to be my solicitor.  I have trusted Mr Connor implicitly.  I have not exhibited the material but there is a letter from Mr Connor saying that he would provide me with a copy of every document that came into his possession on the day or, if not, the day after.  It is more what I said - I trusted him implicitly in this.  He said, "You let me do the legal stuff;  you run the farm as you do best."

What I am saying, the special thing is that where it has been found out that there has been a wrong done by a solicitor, and I will try and put it briefly.  I rang up the Law Institute of Victoria.  They said that they could not handle it, they could not look at it and take the complaint because the proceeding was over $2500. 

I rang the Fraud Squad of the Victoria Police and spoke to a Senior Sergeant Leman there and he told me that he would not look at it until there was a formal complaint received by the Law Institute.  I have been shunted on to the treadmill of litigation and that is why we are here today.  My only avenue of remedy for Mr Connor's damages is my right to litigate, my right to take ‑ ‑ ‑ 

HIS HONOUR:   And that is presently reserved by the Court of Appeal.

MR WESTON:   And that if the sale of my farm goes ahead, what right I have got left is just extinguished.  If the sale goes ahead before there is a decision in the Connor matter, the sale will extinguish any possibility of me surviving on that farm.

HIS HONOUR:   Well, now, your time is coming close to its end, Mr Weston.  Is there anything further that you would wish to add on this question of the prospects of the special leave application succeeding?

MR WESTON:   It is only this that what is proposed by the respondents will take away my right on that farm to earn a living.  There is a very real prospect that I may have to exist on a disability pension in the future, so that is all I wish to say, your Honour.

HIS HONOUR:   Yes, thank you, Mr Weston.  Dr Hanscombe, I would be assisted if you could direct your attention again only to this question of prospects of success.  If it were possible for you simply to state your propositions without development, that may be of assistance to me.  If you could simply state in proposition form what your position is.

DR HANSCOMBE:   Yes, your Honour.  I did file and give to Mr Weston a copy of an outline of argument.

HIS HONOUR:   I have read that.

DR HANSCOMBE:   The propositions that we would advance in relation to the application for special leave is set out there seriatim.

HIS HONOUR:   Do you wish to add or supplement those in the light of the perhaps rather more pointed formulation of his point that Mr Weston gave us this morning?

DR HANSCOMBE:   What Mr Weston appears to have added, if I may paraphrase what I understood him to say, is that this Court ought to consider his prospects of success in the Connor matter now currently reserved by the Victorian Court of Appeal and the application for special leave pending in this Court against the Shire, in my submission both of those matters are not matters which this Court need or ought to take into account in considering this application. 

Indeed, to do so in relation to Mr Connor would really involve postponing the rights of the first mortgagee to that of the second.  Mr Connor is the second mortgagee of this property and we are the first.  We have indicated our rights under that mortgage and there is no good ground in law why we ought to be postponed in those rights, in my submission, to those of the second mortgagee.

The same argument might be put a fortiori with respect to the Shire which has no interest in this land at all.  Briefly put, you will see from the affidavit of Andrew Peter Dickinson, sworn 15 October, that the first three grounds have no basis in fact.  If you go through the judgment of the Court of Appeal, you will see that this question of fraud by Bannister and Hartnett was not raised before the Court of Appeal.

I can tell your Honour from the lectern that it was raised before Southwell J who found there was no evidence of it.  That finding of fact was not challenged in the Court of Appeal.  The fourth ground, if I understood it correctly, does refer to the matter concerning Mr Connor and I have already said what I want to say about that.  The fifth ground is the complaint to do with the letter referred to in the judgment of Court of Appeal and whether that letter which said that the trees would not be taken into account ‑ ‑ ‑ 

HIS HONOUR:   Yes, I am familiar with that point.

DR HANSCOMBE:   That also, in my submission, could not raise a finding about a particular document.  If I have apprehended the ground correctly, and I found it a bit difficult to be quite sure about what Mr Weston complained of in that ground, but if I have apprehended it correctly, it could not give rise to special leave, not raising the right kind of point.

Similarly, with respect to 6, 7 and 8, they do not raise any question of general legal principle of the kind that would give rise to such a ground.  The ninth ground simply again has no factual basis.  This matter was not raised before the Court of Appeal.

HIS HONOUR:   Yes, thank you, Dr Hanscombe.  Is there anything you would wish to add, Mr Weston, in the light of what Dr Hanscombe has said?

MR WESTON:   I believe that the principle thing in this is this connection between the other parties.  If what has happened to me is allowed to be executed, well, nobody's assets are safe.

HIS HONOUR:   Thank you, Mr Weston. 

This is an application to stay execution of a judgment that was given on 13 March 1997 after a trial before a Judge of the Supreme Court of Victoria and which was later varied by an order of the Court of Appeal made on 8 September 1997.  The terms of that variation are irrelevant for present purposes.  In effect, the judgment, the execution of which is sought now to be stayed is a judgment that the respondents have possession of certain mortgaged land and that the applicant pay certain sums, together with interest and costs.

As appears from the reasons for judgment in the Court of Appeal, the land which is the subject of the judgment is a farming property of about 480 hectares of which about 80 hectares are worked as a walnut grove.  The applicant, Michael Weston, mortgaged that land to the respondents, Bannister and Hartnett, as security for a loan of about $400,000 which he used to satisfy debts which he then owed to third parties.

The applicant was alleged not to have paid all that was due under the mortgage as and when it fell due and proceedings were instituted by the respondents, Bannister and Hartnett, for possession of the mortgaged property and the amount of the debt.  Those proceedings had a comparatively long history, the detail of which does not matter for present purposes.

At one time, summary judgment was entered for the respondents but that judgment was set aside on appeal and the matter then went to trial.  The judgment which now is in question was given at trial.  The applicant raised many defences and a counter claim.  Those defences and that counter claim were all rejected at trial.  He then appealed to the Court of Appeal but, in substance, that appeal failed.  I say "in substance" because the order of the Court was an order allowing the appeal and then making some different orders for costs of the proceedings from the orders for costs that had been made by the primary Judge, but the substantial relief sought and obtained by the respondents was unaffected by the orders made by the Court of Appeal.

The Court of Appeal ordered a conditional stay of execution for 30 days from 8 September 1997.  That stay has now expired.  A further application was made to the Court of Appeal on 10 October for a stay pending the hearing and determination of Mr Weston's application for special leave to appeal to this Court but the Court of Appeal rejected that application.  The application for special leave to appeal seeks to raise a large number of points.  The grounds alleged are as follows:

Their Honours erred in law by failing to apply the law of natural justice to allow the appellant to amend his grounds of appeal when it became obvious that fraud could be shown to be in the knowledge of the respondents and that the respondents were privy to the settlements and decision Mr Connor intended. 

Their Honours erred in law by failing to allow the appellant to put and argue that the respondents' deceptive and misleading words and conduct was an offence of obtaining property by deception, as set out in section 81 of the Crimes Act, 1958.  Where there was evidence of a criminal offence being a malum prohibitum act, should the person committing that offence be allowed to bring and succeed in an action for possession of property gained by that offence.  Where there was evidence of a breach of fiduciary duty by the appellant's former solicitor, should the appellant be ordered to hand over possession of his only property when there is no other form of relief available for the appellant. 

Their Honours erred in law in finding that the letter of the respondents did not show that the intention of the parties was to exclude the walnut trees as security for the alleged loan. 

Their Honours erred in law in finding that a fiduciary duty did not exist outside the solicitor/client relationship in dealings between a solicitor and a natural person. 

Their Honours erred in law by finding that a solicitor and client relationship had not been established between the applicant and the respondents. 

Their Honours erred in law by ordering that the appellant pay the respondents' costs when the appeal was allowed. 

Their Honours erred in law in the exercise of their discretion by requiring a litigant-in-person to demonstrate a proper explanation of the merits and reasons to the same or higher level as a trained qualified legal advocate.

In the course of the oral argument this morning, Mr Weston has refined more precisely the substance of the point which he submits will arise in the determination of the application which he makes for special leave to appeal.  In order to understand that point, it is necessary to note that Mr Weston has two other pieces of litigation in which he is engaged.  First, there is an action concerning a solicitor named Connor who at one time acted for Mr Weston which is a proceeding the subject of an appeal to the Court of Appeal of Victoria.  That appeal has been heard but not yet determined.

Mr Weston is also party to an proceeding concerning the local shire council concerning some events which, so it would seem, were the origin of much of the litigation that has later ensued.  That proceeding against Indigo Shire Council, as the successor to the Shire of Rutherglen, is the subject of an application for special leave to appeal to this Court against orders made by the Court of Appeal resolving that proceeding against Mr Weston.

As I understood it, the point which Mr Weston seek to agitate by the special leave proceeding which he now has instituted in the action against Bannister and Hartnett is that if he succeeds in the various claims which he makes against Connor or Indigo Shire Council, it will then be apparent that if he had known of those circumstances he would not have entered the mortgage with Bannister and Hartnett.

[11.10am]

Accordingly, so the argument runs, if Bannister and Hartnett are now entitled to execute upon their judgment any right which Mr Weston may have in the two other proceedings involving, as I say, Connor and The Indigo Shire Council, will be harmed, if not destroyed. 

The principles to be applied in deciding whether to grant a stay of execution of the judgment pending the resolution of an application for special leave to appeal are well established and I need not repeat them. It has been described as an "extraordinary jurisdiction which will only be exercised in exceptional circumstances," Gerah Imports Pty Limited v The Duke Group Limited, 119 ALR 401, at 403, per Dawson J.

For present purposes it is important to consider whether the application that has been made for special leave to appeal enjoys any substantial prospect of success.  If it does not, then it is clearly established that a stay should be refused.  The proceeding is one which has been tried and has been the subject of an appeal.  It has therefore twice been considered by the Courts.  In my view, the present application for special leave does not enjoy sufficient prospects of success to warrant granting a stay.  It follows that I am of the view that the stay sought should be refused. 

The point which Mr Weston sought to identify in the course of argument before me was a point that sought to attribute the consequences of alleged wrongdoing by third parties to the respondents to this present application.  No ground was advanced why, if - and I emphasise I express no view on these matters - if it were later to be demonstrated that either Connor or the Indigo Shire Council had acted contrary to law, those wrongs on their part should be attributed to a party unconnected in any way with them. 

As for the other matters that are mentioned as grounds for the application for special leave to appeal, it is sufficient if I say that I do not consider that any arguable case of error is shown in respect of any of those matters.  Being of the view that the application for special leave does not enjoy substantial prospects of success, I am of the view that no stay of execution should now be ordered.  It follows that the application will be dismissed.  Dr Hanscombe.

DR HANSCOMBE:   Your Honour, I seek the costs of the application, and I seek them as between solicitor and own client as was agreed in the mortgage executed by Mr Weston.  There has not hitherto in any of this litigation ever been a contest about that matter by Mr Weston, but in the event there is, I have had a short, formal affidavit sworn by my instructing solicitor exhibiting the mortgage so that your Honour can see the contractual provision.

HIS HONOUR:   Yes.  Mr Weston, what do you say about the costs?

MR WESTON:   I am still of the view that the alleged mortgage was obtained by fraud, your Honour, and it is provable.  And that not only should the mortgage fall but should that all the contractual arrangements that are attached to it should fall also. 

HIS HONOUR:   Yes.

MR WESTON:   That includes the costs and the personal guarantee.

HIS HONOUR:   Yes.  The application will be dismissed with costs to be taxed as between solicitor and own client.  I will certify for counsel.

DR HANSCOMBE:  If the Court pleases.

HIS HONOUR:   Thank you.

AT 11.16 AM THE MATTER WAS ADJOURNED
INDEFINITELY