Zorom Enterprises Pty Limited (In Liquidation) v Zabow & Ors ( S254-07)

[2007] HCATrans 597

[2007] HCATrans 597

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S254 of 2007

B e t w e e n -

ZOROM ENTERPRISES PTY LIMITED (IN LIQUIDATION)

Applicant

and

PETER JOHN ZABOW

First Respondent

EASTERLEY PTY LIMITED

Second Respondent

ROBERT MURRAY TATE

Third Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 OCTOBER 2007, AT 10.56 AM

Copyright in the High Court of Australia

GUMMOW J:   Yes, Mr Walker, do you want an adjournment of this or what is happening?

MR WALKER:   Yes.

GUMMOW J:   I should add that there is a submitting appearance for the second and third respondents, Easterly and Tate.

MR WALKER:   May it please the Court.  Your Honours, the announcement of my appearance is a matter of some delicacy.  I do not appear for Zorom Enterprises, which presently has no legal existence.

GUMMOW J:   We had better see who Mr Sexton appears for.

MR WALKER:   Yes.

HEYDON J:   Do you appear for Altiora Insurance Solutions Pty Ltd?

MR WALKER:   I do, your Honour.  With extreme terseness, that is described as the plaintiff applicant in our summons for adjournment.  The reference “plaintiff” is to the Supreme Court process which is attached.  We are plaintiff for the re-registration.

GUMMOW J:   Yes, Mr Solicitor.

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P.R. STOCKLEY, for the applicant.  (instructed by Curwoods Lawyers)

MR J.E. SEXTON, SC:   May it please the Court, I appear for the first respondent with my learned friend, MR E.C. MUSTON.  (instructed by Zabow Lawyers)

GUMMOW J:   Thank you.  Now, what is your client’s attitude to this summons filed on 2 October?

MR SEXTON:   Your Honour, firstly we understood it to be a summons in which the plaintiff was Zorom Enterprises Pty Ltd and we anticipated that ‑ ‑ ‑

GUMMOW J:   We have to get to the substance, Mr Sexton.

MR SEXTON:   Yes, your Honour.  The substance is that we oppose the application for the adjournment, your Honour, on the basis that the appellant does not exist, and it is not open to ‑ ‑ ‑

GUMMOW J:   It might come back from the dead.

MR SEXTON:   It may, your Honour.

GUMMOW J:   It might come back from the dead with some conditions attached to it which might help you.

MR SEXTON:   It may, your Honour. 

GUMMOW J:   Yes, all right.  Yes, Mr Walker.

MR WALKER:   Your Honours, the position is that in due course in relation to the Supreme Court proceedings, as correspondence not before this Court but between the parties shows, there will be, I am instructed, a capacity to comply with the kind of conditions that the presiding judge has just suggested might ‑ ‑ ‑

GUMMOW J:   When is this application in the list in the Supreme Court, do you know?

MR WALKER:   On 1 November, your Honour.  The short reason why we wish the application, by a company which existed when the application was made but which now does not exist, to be adjourned derives from the very facts which would otherwise be deployed against that company, did it exist, by the respondent to the special leave application, namely, that we, Altiora, the local agent of the insurer whose funds are by an undertaking of the plaintiff the one and only source of the damages were they to remain payable.  In our submission, the compelling reason for an adjournment is precisely in order to enable the special leave application properly to be heard.  I say “properly” because our search of the rules leaves only Part 6, that is, the rule, as it were, of despair or default at the beginning of Part 6 as the means by which I could present argument, as otherwise I would be briefed to do if that company existed, in support of the application for special leave.

GUMMOW J:   You would be seeking an adjournment until – it will be the next list in Sydney, which would be on December 14?

MR WALKER:   Yes, your Honour.  In our submission, denial of an adjournment would lead to what, in our submission, would be, without any prejudging of the merits of Zorom’s application for special leave, the unfortunate, perhaps even the unseemly prospect of the deregistration of a company whose existence really has meaning only for the very litigation in question leading to that litigation being determined otherwise than on the merits.  When I use the word “merits” there I mean it in the specific sense of should there be a grant of special leave.  That is all.  In our submission, that would be, as I say, unfortunate, perhaps unseemly and for those reasons, in the exercise of this Court’s discretion, to get to the substance of the matter, there ought to be such an adjournment to enable this Court to have before it a party who existed when an application was commenced but has ceased to exist by what your Honours could comfortably infer is the kind of accident that occurs ‑ ‑ ‑

GUMMOW J:   What should happen if you are successful on this summons?  What should happen as to the costs of it?

MR WALKER:   Altiora, the applicant, ought to be the subject of your Honour’s undoubted jurisdiction to consider in your discretion the payment of costs.  One possibility is that that ought to await the outcome of the substantive application by Zorom.  Another possibility is obviously that your Honours deal with that here and now.

GUMMOW J:   Another possibility is to make it Zorom’s costs in the special leave application.

MR WALKER:   Sorry.  That was what I meant by the first possibility.

GUMMOW J:   All right.  Yes, Mr Sexton.

MR SEXTON:   As I said to your Honours earlier, we understood the application was being made today by Zorom and that appears to be what is contemplated by the second order, which is that the costs of this application be costs in the application for special leave.  In our submission, if the Court is minded to grant the application which is now made today by Altiora, it should be on terms that the costs occasioned by the application for the adjournment be paid by that entity.

HEYDON J:   In any event?

MR SEXTON:   In any event, yes, your Honour.  We have indicated in correspondence that ‑ ‑ ‑

GUMMOW J:   I will ask Mr Walker if he opposes that course.  Have you got instructions on that, Mr Walker.

MR WALKER:   Your Honour, what I do have instructions is that on behalf of Altiora we would undertake or we do undertake to the Court to meet any order for costs made by this Court against Zorom were that to happen.  I think the second alternative that I had earlier described is one that leaves open the very thing that my learned friend has asked.

GUMMOW J:   Yes.  The second alternative being formulated as how?

MR WALKER:   To order the present applicant for adjournment to pay the costs of and occasioned by the adjournment.

GUMMOW J:   Thank you.  Yes, Mr Sexton.

MR SEXTON:   Your Honours, we have indicated in correspondence that the position of the first respondent is that if Altiora is heard and in a position to argue the application for an adjournment, then this Court could hear the application for special leave on a conditional basis, the result being that there would be no need for the matter to come back before this Court in December or on some other date.

GUMMOW J:   On the application this morning made on the summons by Altiora Insurance Solutions Pty Ltd for whom Mr Walker appears as leading counsel there will be an adjournment of the special leave application.  The special leave application may be restored to the list upon application by Zorom Enterprises Pty Limited and the list would be that to be taken in Sydney by the Court on 14 December 2007.  The costs of the summons will be costs to be borne by Altiora Insurance Solutions Pty Ltd.

AT 11.06 AM THE MATTER WAS CONCLUDED