Parras Holdings Pty Ltd & Ors v Commonwealth Bank of Australia S68/1999 [1999] HCATrans 658 (15 December 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S68 of 1999

B e t w e e n -

PARRAS HOLDINGS PTY LIMITED

First Applicant

FULANGA PTY LIMITED

Second Applicant

PHONTOS INVESTMENTS PTY LIMITED

Third Applicant

ILANZ PTY LIMITED

Fourth Applicant

P & E PHONTOS PTY LIMITED

Fifth Applicant

DOVIZO PTY LIMITED

Sixth Applicant

PETER PHONTOS and ELLI PHONTOS

Seventh and Eighth Applicants

HARRY COSTAS

Ninth Applicant

MARY COSTAS

Tenth Applicant

MICHAEL PHONTOS

Eleventh Applicant

SIBARD PTY LIMITED

Twelfth Applicant

SHIMCOST PTY LIMITED

Thirteenth Applicant

SPOTEK PTY LIMITED

Fourteenth Applicant

and

COMMONWEALTH BANK OF AUSTRALIA

Respondent

For Mention

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 15 DECEMBER 1999, AT 10.04 AM

Copyright in the High Court of Australia

MR R. ALKADAMANI: May it please the Court, I appear for three of the applicants, your Honour, the 7th, 8th and 12th applicants. (instructed by Castrission & Co)

MR P. KEMP: I appear for the liquidator of two of the applicants, Dovizo Pty Ltd and Parras Holdings. (of Kemp Strang & Chippindall)

MR N.L. MANOUSARIDIS: If it please the Court, I appear for the respondent. (instructed by L.E. Taylor)

HIS HONOUR: Is Mr Andrew here?

MR ANDREW: Sorry, did you ask me - - -

HIS HONOUR: No. Just take a seat. I understand you are appearing for the 14th applicant, Mr Andrew?

MR W.E. ANDREW: I am the liquidator of the 14th applicant.

HIS HONOUR: Well, just take a seat and we will see what happens. Just give me a moment while I look at the information I have been given in relation to this matter.

I understand that, apart from the actual applications themselves, none of the documents required - yes, a summary of argument has been filed on behalf of the 7th, 8th and 12th applicants, and a draft notice of appeal. Apart from that, none of the documents required by the Rules in relation to any of the applicants have been filed. Is that the case?

MR ALKADAMANI: Your Honour, the only matter which I have only just become aware of that has not been filed that may need to be filed is a draft index in respect of the - - -

HIS HONOUR: What about the formal orders of the courts below?

MR ALKADAMANI: Your Honour, I was not aware that that had not been filed.

HIS HONOUR: Let me just check on that. By "the court below", I mean the Full Court of the Federal Court of Australia. That is the court from which this appeal is sought to come, is it not?

MR ALKADAMANI: It is, your Honour.

HIS HONOUR: Has that been filed?

MR ALKADAMANI: Your Honour, I do not know if it has been filed. I did not know it was not filed. I do not know if they have been filed but I did not know they were not filed. We can certainly file them very, very quickly, your Honour.

HIS HONOUR: Is not this matter going to be deemed to be abandoned today? My information is - - -

MR ALKADAMANI: Yes, it is.

HIS HONOUR: - - - that time was extended until today.

MR ALKADAMANI: That is correct. It will be deemed to be abandoned today unless - - -

HIS HONOUR: Let us get it clear. You are appearing for which applicants? The 7th, 8th and 12th?

MR ALKADAMANI: Yes, your Honour.

HIS HONOUR: And you believe your clients have filed everything they have to file except the formal orders of the Federal Court, is that right?

MR ALKADAMANI: No, your Honour; and the index which needs to be settled by the Registrar.

HIS HONOUR: Index to the appeal book?

MR ALKADAMANI: Yes, your Honour; to the application book.

HIS HONOUR: Now, what is the position with respect to your clients, Mr Kemp?

MR KEMP: Neither liquidator has any funds, your Honour, and in the case of Dovizo, which is the sixth applicant, the liquidator does not wish to continue with the action or the application for leave on the basis that he has no funds, no assets in the liquidation, and he does not believe that the appeal can be sustained.

HIS HONOUR: Well, you are inviting me to dismiss the application of the sixth applicant?

MR KEMP: Yes, your Honour.

HIS HONOUR: And what about the application of the first applicant?

MR KEMP: The first applicant simply abides the order of the Court. The liquidator, again, has no assets. There does not seem to be any assets in the liquidation at all and he abides the order of the Court on both the application for leave and on the appeal itself.

HIS HONOUR: Well, he does not intend to comply with any of the Rules of Court?

MR KEMP: No, your Honour.

HIS HONOUR: Mr Andrew.

MR ANDREW: Your Honour, I am in the same position. I have not had funds. I have no real knowledge of these - - -

HIS HONOUR: Do I infer from what is going and not going on then, that it is your clients, Mr Alkadamani, who are the moving parties in these applications?

MR ALKADAMANI: We are the ones that remain moving, your Honour.

HIS HONOUR: And that the other applicants have no continuing interest in the application.

MR ALKADAMANI: Well, I cannot speak for them but that is what it appears, your Honour. Your Honour, might I say that the 7th, 8th and 12th are the only parties that are not in liquidation or in bankruptcy, and they are the parties for whom I act.

HIS HONOUR: Well now, do you have some application to make?

MR ALKADAMANI: I do, your Honour. I would apply for an extension of time to file the formal orders of the Full Court. Your Honour, in a letter from the High Court of 6 September 1999, it is said that we had to also file our application book. We had thought that the responses of the respondent ought to be received before an index for the application book was settled. That may not be the Court's view. We just thought that that may - - -

HIS HONOUR: Well, let us see what Mr Manousaridis has to say. What do you say, Mr Manousaridis?

MR MANOUSARIDIS: In relation to our filing the summary of argument?

HIS HONOUR: In relation to anything.

MR MANOUSARIDIS: Well, we are entirely in your Honour's hands in relation to those applicants who have not appeared today. Under the Rules their applications deem to have been abandoned unless they comply with the filing of the summary of arguments and the other documents, and they have not done that. My instructions are that all the applicants, other than the three that my friend represents, are in insolvency administration of one sort or another except for the 4th applicant which, on my instructions, is deregistered.

HIS HONOUR: What do you say about the application to extend time for filing the formal orders of the Full Court of the Federal Court and the index to the appeal book?

MR MANOUSARIDIS: Again, I am in your Honour's hands. I do not oppose a reasonable extension of time.

HIS HONOUR: All right.

HIS HONOUR: I will note that as to the applicants other than the 7th, 8th and 12th applicants, some of whom are represented this morning and some of whom are not represented this morning, they appear to have no interest in pursuing these applications. Those that are represented have informed the Court that for reasons they have explained they do not intend to comply with any of the Rules and are content that the provisions of the Rules concerning deemed abandonment should operate.

It is evident that the moving parties in the applications are the 7th, 8th and 12th applicants who have been represented this morning. They have failed to comply with the Rules in one respect in that they have not filed the formal orders of the Full Court of the Federal Court. I will give an extension of time sufficient, but no more than sufficient, to enable that to be done.

How long does it take to get orders of this kind?

MR ALKADAMANI: A few days, your Honour.

HIS HONOUR: You heard somebody tell us earlier that in relation to getting orders in the District Court, you file draft orders and they issue within two or three days. Does that apply to the Federal Court? I am afraid I really do not know.

MR MANOUSARIDIS: Your Honour, we have taken out orders of the Full Federal Court and we would be quite content to give them a sealed copy of those orders.

HIS HONOUR: All right. I am interested still to know what is involved in taking out formal orders of courts. It is only a matter of days, is it?

MR KEMP: I believe so, your Honour, yes, in that you draft the orders and file them and the Registrar settles them.

MR MANOUSARIDIS: I am instructed it takes two days, assuming the draft accords with the actual order of the court.

MR ALKADAMANI: We will file them forthwith upon my friend's kind offer.

HIS HONOUR: I will extend the time for filing the formal orders of the Full Court of the Federal Court until Monday, 20 December.

MR ALKADAMANI: Thank you, your Honour.

AT 10.15 AM THE MATTER WAS CONCLUDED