Martin & Anor v Individual Homes Pty Ltd & Anor C9/2000 [2000] HCATrans 410 (20 July 2000)

IN THE HIGH COURT OF AUSTRALIA

Registry No C9 of 2000

B e t w e e n -

ANTHONY GILBERT MARTIN

First Applicant

SUE DOLORES MARTIN

Second Applicant

and

INDIVIDUAL HOMES PTY LTD (In Liquidation)

First Respondent

BARRY ANTHONY TAYLOR (Liquidator of First Respondent)

Second Respondent

Application for a stay

GAUDRON ACJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO CANBERRA

ON THURSDAY, 20 JULY 2000, AT 8.59 AM

Copyright in the High Court of Australia

MR A.G. MARTIN appeared in person.

HER HONOUR: You appear for yourself. Does your wife appear?

MR MARTIN: Yes, your Honour.

MRS S. MARTIN: I am Sue Martin, your Honour.

HER HONOUR: Yes, thank you, Mrs Martin. Do you propose both to speak or is Mrs Martin going to let Mr Martin speak or vice versa?

MRS MARTIN: No, if it is all right, I would like my husband to speak on my behalf please, your Honour.

HER HONOUR: Yes, thank you. Is there any appearance for the respondent.

MR F.J. PURNELL, SC: May it please the Court, I appear with my learned junior, MR M.P. BRENNAN, for both respondents, although I should point out to your Honour that the second respondent - there was an order in the Federal Court that that party be removed. (instructed by Mallesons Stephen Jacques)

HER HONOUR: Yes.

MR PURNELL: So the status of the entitlement - - -

HER HONOUR: You appear for the second respondent anyway.

MR PURNELL: For both respondents, your Honour.

HER HONOUR: Thank you. Yes, Mr Martin.

MR MARTIN: Your Honour, I propose to make my submission based on these three cases: High Court authority of Webster v Lampard; the next one is Possession in the Common Law by Pollock & Wright; extracts from my submission in C1 of 2000. I have been told this morning your Honour has got a copy of it. I propose to read from - - -

HER HONOUR: I am not sure about that. Let me check. Mr Martin, you are referring, are you, to your summary of arguments in C1 dated 1 February 2000?

MR MARTIN: Yes, your Honour, that is right.

HER HONOUR: Thank you, yes, I have that.

MR MARTIN: The third subgroup would be the case of Manchester v Connolly. It is a UK case, your Honour. Lord Diplock, I think, was the one who gave the leading judgment on that matter.

HER HONOUR: Yes, thank you.

MR MARTIN: The fourth one is Jennings v Burgundy.

HER HONOUR: Yes.

MR MARTIN: Your Honour, this morning the Deputy Registrar kindly has faxed to you - at least to the Court - first of all my affidavit of 19 July 2000, which is yesterday, which was filed in the Federal Court.

HER HONOUR: That was filed in the Federal Court, you say?

MR MARTIN: Federal Court, your Honour. If your Honour could read that - there is only three sheets - if your Honour can read that - - -

HER HONOUR: Yes, I have read that.

MR MARTIN: The 19 July, your Honour?

HER HONOUR: Yes, I have that and I have read that.

MR MARTIN: It was only faxed a few minutes ago.

HER HONOUR: Yes, I read it before I came in.

MR MARTIN: Okay. Your Honour, the other thing is, also faxed this morning, your Honour, was the orders that were served on us - orders of Justice Higgins and the judgment that was served on us dated 20 December 1999 and 22 December. That was also faxed to your Honour this morning.

HER HONOUR: I have an order of Justice Higgins dated 16 December 1999, is that the one? It was entered on 20 December 1999.

MR MARTIN: That is right, your Honour. And another one - - -

HER HONOUR: What is the second one?

MR MARTIN: The judgment entered on 22nd, your Honour.

HER HONOUR: The judgment of 22nd, yes, I have that, thank you.

MR MARTIN: I appeared in front of your Honour, I think, on 4 September 1994 and immediately following that, on the dismissal of your Honour's order for stay, the sheriff did, at 9 pm, two male sheriffs did enter my house against my strongest objection and search my family's home, including my wife and my daughter's bedroom and I specifically told them that my understanding is that one cannot do that, at least in Australia, unless there is a female sheriff. The point I am making, your Honour, is the issue that is confronting me today is that at the conclusion of this hearing, if the stay is not granted, and if your Honour - in the affidavit I have filed I intend being in my house alone with just a video camera and nothing else. I have removed my dog out of the premises last night. The issue is purely a summary common law writ of possession, has been converted into an equity writ of possession, then into an unsigned, unsealed warrant of possession with threats of police and trespass.

HER HONOUR: Mr Martin, what you have to address yourself to is whether you have arguable grounds for the grant of special leave.

MR MARTIN: Yes, your Honour, I will come to - - -

HER HONOUR: As I understand it, you are seeking special leave to appeal - have you filed the application for special leave?

MR MARTIN: Yes, your Honour. It was filed on 7 June, served the same day.

HER HONOUR: Yes. And that is from the decision and orders of the Full Federal Court dismissing an appeal from Chief Justice Miles, is it?

MR MARTIN: No, your Honour. The one that we are referring is C9 of 2000 which is - - -

HER HONOUR: From Justice Higgins, sorry.

MR MARTIN: Justice Higgins to the Full Federal Court, 18 May.

HER HONOUR: That is right, yes.

MR MARTIN: I would address that, your Honour, under Jennings v Burgundy, which is my fourth paragraph I am addressing. The one I want to address to you that Webster v Lampard is extremely relevant in this case. Webster v Lampard - and I have not read it for the last month or two - is an issue where, in Western Australia, a landlord brought in the police who drew out the tenants - drew them out - and his defence was that under the Police Act 1925 , from my memory I am talking about, no action can be taken against him.

Now, the point I am trying to make is that today, if I am not successful in my application to your Honour, there would be about three or four sheriffs, with the police, and I - - -

HER HONOUR: Yes, I know that. You need not concern yourself with the balance of convenience. You should concern yourself with whether there are reasonable prospects of the grant of special leave from the decision of the Full Federal Court.

MR MARTIN: Okay. Your Honour, I will jump to my fourth one then. In Jennings v Burgundy I have to satisfy four conditions: one is whether there is a substantial prospect of special leave to appeal being granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of stay will cause loss to the respondent and, fourthly, where the balance of convenience lies.

Now, I submit to your Honour except for the first one, in all the other two, three and four, I have satisfied it. Now, I depend on my affidavit of 13 July 2000 filed in this Court in this matter. I depend on my affidavit of 14 July, your Honour, again in this matter, and in relation to whether the grant of stay will cause any loss to the respondent, where the balance of convenience has been addressed, there has not been an iota of evidence put by the respondent before Chief Justice Miles or before the Full Court yesterday saying that there would be any damage done, that the balance of convenience is not in our favour and there is sworn affidavit of mine, including an affidavit of Barry Taylor which was filed in the Federal Court on 22 December 1999, where he showed that it is going to take him 14 weeks or something to make the sale.

Now, the other one is - I would like to emphasise, your Honour, that since 5 March 1997, Barry Taylor has asked on two occasion access to the property to do immediate repairs, to get a certificate et cetera. Access was given under court undertaking given by us. He has done nothing. It is in my affidavit. So there is no loss to the respondent. The issue has been addressed in affidavit. Address of the balance of convenience has been addressed.

The second issue, as your Honour is aware, yesterday the Full Federal Court dismissed the stay application and a vital issue raised up by the court, which I was not aware of it, is that the respondent had given an undertaking to Justice Finn on 23 December 1999 that the property would not be disposed of until the judgment - not only until the appeal from A105 was disposed of, but until the judgment from A44 of 1999 is delivered. Now, I was not aware of that until yesterday when Justice Moore pointed that out. If your Honour could refer, I think - - -

HER HONOUR: I have no idea what A44 is. I do not think it is a matter with which I am concerned, is it? A44.

MR MARTIN: The balance of convenience is - - -

HER HONOUR: What is A44 about, Mr Martin?

MR MARTIN: A44 is an appeal to the Full Federal Court - an appeal from the decision of Justice Higgins of 27 May - my apologies, your Honour, it is an appeal from the decision of Justice Higgins of 25 May 1999 in action SC182 and the notice of appeal in that matter is annexure G of my affidavit of 6 July 2000 filed in front of Justice Miles which is annexure DD in my affidavit of 14 July. Sorry, your Honour, it is one of the annexures in my affidavit of 13 July.

HER HONOUR: Now, does that concern your application to terminate the winding up?

MR MARTIN: Yes, your Honour, it concerned my application to terminate the winding up. It concerns my application of compensation before eviction under ACT Land Titles Act. It concerns about our tenancy at will predating the registration of the first respondent. It concerns the hearing of the matter of possession before the Magistrates Court. It concerns about the Federal Court reconsidering the issue of beneficial ownership. It concerns the Federal Court revisiting its dismissal that section 267 of the Corporation Law, based on which other mortgages have been declared null and void, does not relate to dealings in land. Section 267 of the Corporation Law refers to charges registered with the Australian Securities Commission. In fact, A44 of 1999 encompasses the whole issues that have been litigated between the parties since about 13 July 1994.

Now, if your Honour - the point I am trying to make about is that I will not transgress. Now, in respect to the first issue, your Honour, the first issue and the most serious issue is the prospect of success of the special leave. Now, your Honour, the prospect of success, the special leave application is based on Webster v Lampard Case. Manchester v - - -

HER HONOUR: What do you say are the errors, really, in the Full Federal Court's decision?

MR MARTIN: Your Honour, the Full Federal Court ignored Webster v Lampard, so did Justice Higgins ignore Webster v Lampard. In Webster v Lampard, apart from the police involvement, the High Court made a very critical statement of profound importance and that profound importance is that unless one can prove that the affidavit in defence of a summary judgment, on the face of it, is so improbable that it is unbelievable, and if all the fact that is alleged in that affidavit is - all allegations or something is accepted as facts or something to that effect - in my special leave application I have quoted extensively from Webster v Lampard, your Honour.

HER HONOUR: What is the reference to that, please, Mr Martin?

MR MARTIN: Yes, Webster v Lampard in a High Court case, (1993) 177 CLR.

HER HONOUR: Thank you. Now, would you read on to the transcript exactly that passage that you rely upon.

MR MARTIN: Could your Honour just bear me a few minutes. I have to find my special leave application in my affidavit of the 13th. If your Honour could bear me one second. Your Honour, it is annexure D in my special leave application which appears in my affidavit of 6 July before Justice Higgins, which is an annexure in my affidavit of 13 July to this Court. Your Honour has asked me to read it out and now, if I could just - I have - yes, your Honour, in the so-called page 6 of my affidavit, and I copied it out of Butterworth, your Honour:

The High Court authority of Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 makes it clear the Court should approach a summary judgment application on the basis that the respondent's affidavit evidence, if not inherently incredible, will be accepted at trial and on the basis that the court should consider the material to determine whether it discloses either an arguable defence or material such as might give rise to an arguable defence.

HER HONOUR: Very well. Now, what is the arguable defence you say that appeared from whatever documents you had filed before Justice Higgins and which was not considered by him?

MR MARTIN: Your Honour, there was four affidavits filed and they are affidavits of 2 July 1999, 22 June 1999, 31 March 1999, 25 March 1999.

HER HONOUR: What was the arguable defence that you say was thereby disclosed and which was not - - -

MR MARTIN: Disclosed is that the applicants had statutory right to possession under the ACT Land Titles Act and numerous sections were given. They had statutory - - -

HER HONOUR: And that was considered by Justice Higgins, was it not?

MR MARTIN: No, your Honour, Justice Higgins ignored it.

HER HONOUR: I have his judgment here.

MR MARTIN: Particularly a statutory right of not being evicted under the ACT Land Titles Act before compensation is made. If I could transgress a bit, your Honour, that the Land Titles Act in the ACT, as your Honour is aware, is - - -

HER HONOUR: No, as I am not aware. I am not familiar with the Land Titles Act of the ACT.

MR MARTIN: It is totally different, your Honour, from all the Land Titles Act of other States in Australia. The difference is substantial in relation to prescriptive title and adverse title.

HER HONOUR: And that was in fact considered, was it not, by Justice Higgins?

MR MARTIN: In my opinion, it was not, your Honour.

HER HONOUR: Have a look at the judgment. I am looking at paragraph 45. His Honour is there referring to the adverse possession, page 7. No, I am sorry, that is the 16 December 1999 judgment.

MR MARTIN: Your Honour, I will go from memory. Your Honour, Justice Higgins summarily ruled that a summary common law order of possession comes into play if the respondent is the registered proprietor and the respondent had made known his views that the tenancy at will - it is his intention to terminate the tenancy at will and the only authority, I think, Justice Higgins quoted the authority of Woodward v Fossil from UK and Justice Herron, is it, from New South Wales decision on - now, it is my submission, your Honour, that the issue of our statutory right to possession is embodied - - -

HER HONOUR: Where do you say your statutory right to possession comes from, the statutory right that was not considered by Justice Higgins?

MR MARTIN: Your Honour, if I could refer to - your Honour, in action SC182 of - your Honour, there is a whole list of the sections of the ACT Lands Act - - -

HER HONOUR: Tell me this statutory right that you claim that was not considered by Justice Higgins. I do not know what this statutory right is that you are talking about.

MR MARTIN: Your Honour, if your Honour could give me a minute. His Honour's judgment on SC182, which was consolidated with SC404 - - -

HER HONOUR: You are using these numbers. They mean nothing to me. I have before me one application for a stay. If you would just tell me the statutory right that you assert you have that was not considered by Justice Higgins.

MR MARTIN: But, your Honour could you just give me - there are a number of statutory rights I am depending on. The first one is the ACT Land Titles Act.

HER HONOUR: Yes, what is the right?

MR MARTIN: The right - could you bear with me, your Honour. In my notice of appeal in A44, if your Honour could just bear me a few seconds I will get my - could you just hold on, your Honour. Your Honour, I got better than that. The supplementary notice of appeal - my apologies, your Honour - the Federal Court appeal of A105 of 1999, the supplementary notice of appeal that was filed on 30 March 2000 and, your Honour, under grounds and the page 4 of it, there is at page 4 to page 8 all the statutory laws and I have itemised it. If your Honour had the patience, I will read it out.

HER HONOUR: No, I do not have that document. I do not have the Federal Court files.

MR MARTIN: Your Honour, I can read it out for your Honour the very statutory - - -

HER HONOUR: Yes, I want you to tell me the statutory right on which you say was disclosed in your affidavit material and which was not considered by Justice Higgins.

MR MARTIN: Under ACT Crimes Act section 94, 95(1), 97(1) - - -

HER HONOUR: What do they say? What rights do they give you? You are talking about a statutory right to possession that you say you have, notwithstanding that you are not the registered proprietor and notwithstanding that steps have been taken by the registered proprietor to terminate whatever tenancy there was.

MR MARTIN: Your Honour, that the possession we have is based on the fact that we, against the first respondent, the second respondent, the first and second respondent has got no iota of equitable right over that. We have possessed it - - -

HER HONOUR: That has been found against you and that was not the issue before Justice Higgins.

MR MARTIN: With all due respect, your Honour - - -

HER HONOUR: You told me that Justice Higgins was wrong because he did not consider statutory rights to possession which were disclosed in your affidavit material. Is that not what you told me?

MR MARTIN: Yes, your Honour.

HER HONOUR: And that is the basis on which you say Justice Higgins is wrong and that you have an arguable case for special leave?

MR MARTIN: Yes, on the statutory right - - -

HER HONOUR: And you say those same maters were - you also say - - -

MR MARTIN: Sorry, your Honour, statutory right - - -

HER HONOUR: You also say - tell me what this statutory right to possession is which was not considered?

MR MARTIN: My statutory right, as I said, under the ACT Crimes Act - the sections are 94, 95(1), 97(1), 345 - - -

HER HONOUR: What rights do they give you? What has the Crimes Act got to do with it?

MR MARTIN: The Crimes Act says anyone who has possession is entitled to it and anyone who is trying to take away is stealing. We do not owe - - -

HER HONOUR: The question is what right do you have to possession, that is the question. Not whether you have got possession; what right you have to possession and what right is it that was not considered by Justice Higgins. It does not matter that you have got possession. Everybody knows you have got possession, that is what you have been litigating about for about five years. The question is whether you have any right to it.

MR MARTIN: Your Honour, we have possession on the basis my wife paid 100 per cent of the price of the land.

HER HONOUR: That has been found against you in other proceedings which have been to this Court and have been finally determined.

MR MARTIN: Your Honour, beneficial ownership is slightly different - or substantially different than equitable right. I agree that the issue of beneficial ownership has been found against and I am not depending on it and I have made it clear. But the lack of beneficial ownership does not mean there is no equitable ownership. Now, the possession is held under equitable ownership because the payment - and no one has denied that the full amount of the property was paid by my wife - and all but $40,000 of the construction was paid by her and the property was designed and built by me physically.

Now, if I could go on to the next statutory right, the one Justice Higgins did not consider was what was issue of jurisdiction, statutory right, issue of common law right and issue of equitable right. If I could go back to the next statutory one that we are depending on, it is ACT Land Titles Act, sections 58(1) - - -

HER HONOUR: What does that say? What does it say? What does that subsection say?

MR MARTIN: Your Honour, I got a whole list of the subsection. I will give you what the whole section say, if you could bear with me, because I have not looked at it for six months. Sections 58(1), 85(1), 152, 153, 154(1)(b) and (c) of the ACT Land Titles Act. Now, what it says is, your Honour, that a tenancy at will, which by definition is less than three years, and therefore it does not have to be registered. Now, if somebody is claiming a tenancy at will that predates registration, as this one is by one month, and Justice Higgins has found that fact, that we had possession from 23 October 1979 and registration occurred on 27 November 1979, a month later, and in Justice Higgins' decision you will find that finding of fact has been made, the ACT Land Titles Act 1985 has that there is paramountcy that tenancy can claim and there is a good reason why that is done in the ACT Land Titles Act because, as I referred to your Honour, that ACT Land Titles Act does not give you prescriptive or adverse possession rights but in equitable terms it restores those rights which has been denied.

Now, the combination of all those sections says - another thing it says is that any sublessee or tenant - any sublessee who has done improvement to the property cannot be evicted until that eviction is paid for. Now, the argument put forward previously was that Justice Higgins answers it that one has to show that one did the improvement as a tenant. I submit to you the ACT Land Titles Act does not make it that - Justice Higgins makes the subtlety that the improvement was done as beneficial owners, not as tenants. Now, the ACT Land Titles Act does not make that distinction.

HER HONOUR: Where does Justice Higgins deal with that?

MR MARTIN: Your Honour, it is in his summary decision of 25 May 1999 which is a decision he made in an - - -

HER HONOUR: That is not the one that is under appeal, is it? Is that the one that is under the appeal?

MR MARTIN: No, your Honour, no. That was consolidated.

HER HONOUR: You have to find error in this judgment of 16 December 1999.

MR MARTIN: Your Honour, his Honour made that decision of his of 25 May as the basis for his decision of 16 December and his decision of 25 May 1999 was on appeal on A44 of 1999 to the Federal Court. Now, SC182 of 1999 was consolidated with SC404, which is the one which generated the order of the 16th, at the request of the respondent.

HER HONOUR: Yes. I am looking at Justice Higgins' judgment. I am having great difficulty following your isolating, in what you have put to me, any matter of error in the judgment which was the subject of the appeal to the Full Federal Court and which is the application for special leave to appeal to this Court.

MR MARTIN: If I could proceed again, this again is reading from my supplementary notice of appeal on A105 of 1999, which is the appeal against Justice Higgins' orders, the other one was a reverse one, that ACT Land Titles Act, section 96, only gives a statutory right to possession to a registered mortgagee, as opposed to a registered proprietor. Now, this property has got a registered mortgagee and when that is the case, a registered proprietor cannot claim that he is a registered proprietor, in my understanding, that he is a registered proprietor, therefore he has - a summary order for possession should be made in favour. That was submitted to him and that was submitted in the appeal to the Full Federal Court.

Now, the other one I said is that ACT Limitation Act. Now, it is my submission that the action SC404 of 1999 was statute barred under section 5 and section 11(1) of the ACT Limitation Act 1985 . Now, when the matter was put to his Honour in SC182 of 1999, his Honour said that matter does not have to be addressed at this time yet his Honour has dismissed that issue summarily. I take the point it is possible that his Honour has addressed these issues but I am suggesting to your Honour his Honour Justice Higgins addressed them summarily when it was certainly arguable.

Now, ACT Landlord and Tenant Act 1949 - and I refer to section 62 to 88. Your Honour, this action for summary possession is based on a notice to quit dated 18 May 1998 given under section 63(5) of the ACT Landlord and Tenant Act 1949 . That notice to quit, your Honour, was first taken to the ACT Residential Tenancy Tribunal on 24 December 1998 and Justice Higgins ruled in SC182 of 1999 that that notice to quit was null and void under the ACT Landlord and Tenant Act and the ACT Residential Tenancy Act 1997 . Now, there has been subsequent - Justice Higgins has dismissed that submission on the basis of some sections of the Interpretation Act 1997 saying that that particular Act was repealed on 25 May or 28 May 1998. Justice Higgins has summarily ruled that that Act is not applicable. It is my submission, your Honour, that - - -

HER HONOUR: Did he rule that in these proceedings - - -

MR MARTIN: Yes, your Honour.

HER HONOUR: Could you take me to that.

MR MARTIN: Your Honour, he refers in his decision, where he refers to - under the Interpretation Act - that that Act is invalid - it is not relevant to this tenancy.

HER HONOUR: If it is not relevant - do you say it is relevant or do you say it is not relevant?

MR MARTIN: I say it is vitally relevant because - - -

HER HONOUR: Yes, well whereabouts is it? Whereabouts is the error in his judgment in this regard of which you complain?

MR MARTIN: Your Honour, it is my understanding - - -

HER HONOUR: Paragraph 49 he says it was replaced by the Residential Tenancy Act.

MR MARTIN: Yes. He himself ruled in - - -

HER HONOUR: But he says if it ever applied, it has no effect now.

MR MARTIN: Your Honour, I am submitting to your Honour that that was a summary decision came up when it is certainly arguable - not arguable - I am of the view that Justice Higgins is wrong in law because there are tens of thousands - my understanding is there are tens of thousands of tenancy matters before the Magistrates Courts of all of Australia which - where the Residential Tenancy Act has replaced - the protective tenancy acts have been repealed in all of Australia. They have been replaced with Residential Tenancy Act of various dates, based on residential tenancy agreements.

Now, it is my submission, your Honour, in the Magistrates Court of the ACT, in all the Magistrates Court, tenancies that predated the introduction of it, tenancies that does not have a tenancy agreement, are still under this Act that is repealed. I was informed by the Registrar in the Magistrates Court, as early as - after it was repealed. Now, the issue - Justice Higgins has ruled - and mind you, your Honour, this notice to quit was based on this Act and, as Justice Higgins himself pointed out, it was issued knowing that the Act was going to be repealed, knowing that in the miscellaneous provisions of the Residential Tenancy Act there is a provision, if a notice to quit is issued prior to the repeal, then that notice to quit can be heard by the Residential Tenancy Act under section 4, I believe, or section 7 of the ACT Residential Tenancy Act.

Now, Justice Higgins ruled in his ruling on 25 May in SC182 of 1999, which has been consolidated with this action, that the ACT Residential Tenancy Act 1999 does not apply to this tenancy. Now, in his rulings in SC182, in his reasoning in 182, and in my supplementary notice of appeal it is put down, he raised - he himself was not sure what the nature of our tenancy was, whether it was a tenancy at will, whether it was a tenancy at sufferance - - -

HER HONOUR: Maybe you have got no tenancy at all. Maybe you are just a trespasser.

MR MARTIN: Yes, your Honour. Your Honour, even if we are a trespasser under the ACT Landlord and Tenant Act, if you are a trespasser you are still covered by the ACT Landlord and Tenant Act. You are still a lessee. I have quoted that thing in the - it is covered in section 62 to section 88 of the ACT Landlord and Tenant Act. Now, then the ACT Landlord and Tenant Act says, under I think it is section 7, no order made other than under that Act is valid. I would refer your Honour, if I could bring it back one step back, your Honour, on 24 April 1998 the Full Federal Court set aside the Justice Gallop order that Individual Homes is entitled to vacant possession. It is set aside on two grounds: (a), it was not sure that the ACT Supreme Court has got jurisdiction and that jurisdiction is with the Magistrates Court, (b) that the order for entitlement was based on the Corporation Law when it should have been based on the ACT Landlord and Tenant Act.

Now, it was on that grounds that the order was set aside. Now, I submitted that to Justice Higgins. He also ignored that. Now, if I could proceed with it further, your Honour - - -

HER HONOUR: On a special leave application, you would have 20 minutes to persuade the Court that special leave should be granted. I am prepared to give you a further 15 minutes to show me that there is an arguable case that special leave would be granted, and only 15 minutes.

MR MARTIN: Your Honour, the special leave will be granted because both Justice Higgins and - if I could humbly submit to your Honour, in Jennings v Burgundy the term used is not "my chances are not insubstantial", not that I have got a good chance, it is not insubstantial. If I could submit to your Honour that my chances are not insubstantial on the ground that Justice Higgins ignored Webster v Lampard, Justice Higgins - - -HER HONOUR: You have to go beyond saying he ignored Webster v Lampard. You have to say that he failed to consider an arguable defence.

MR MARTIN: He failed to consider an arguable - - -

HER HONOUR: Yes, an arguable defence that was disclosed on your affidavits.

MR MARTIN: Thank you very much, your Honour. Justice Higgins failed to consider an arguable defence disclosed in my affidavits of 2 July, 22 June, 31 March and 25 March.

HER HONOUR: And that is your beneficial ownership defence, is it?

MR MARTIN: No, your Honour. I did not - I specifically said that my opposition to possession is not based on beneficial ownership. I am not basing - I accept that the beneficial ownership went through the whole range. It is not based - it is based on statutory provisions. It is based on equity provision. And could I just refer to one of the issues, your Honour, is ACT Supreme Court Act, sections 25, 27, 29, 31, 32, 33 and 36. Basically, what they say is, your Honour, that it is now - Justice Higgins' order is a common law order. In the ACT Supreme Court Act that it is statutory provision that once equitable and statutory right has to be considered concurrently. Justice Higgins did not. He made a summary common law order without taking consideration that the statutory provisions and the equitable issues, and that is -

Your Honour, I have got 15 minutes and if I could refer your Honour to my - a stay is applied on the basis, your Honour, not just on the basis of Jennings v Burgundy, there is also an added issue is that a common law order for possession has been now converted into a criminal warrant of possession. That makes it a different issue. I have got a diagram setting out what I am saying in that. That the execution of that common law order was acquired under ACT Supreme Court Rules as per Part 40 to 44 of the New South Wales Supreme Court Rules. In my view, what - the order that was made was a common law order for possession and then it has been converted - and this is why if I could now refer to your Honour the two judgments, two copies of the judgment that was sent to your Honour. If your Honour could see - if I could refer to that. The orders Justice Higgins made:

(1) The plaintiff have leave to enter judgment for possession.

Now, if you look at the bottom of that - this is on the 20th on it:

The judgment of the court is that the plaintiff has leave to enter judgment for possession.

Now, the judgment that was finally two days later entered says:

The plaintiff recover vacant possession.

Now, it is my submission, your Honour - and I refer to what Justice Toohey's reasoning in Mabo and Wik, both cases, that a common law order for possession is actually an order for re-entry.

Now, this issue of leave to enter possession converted into recover vacant possession, it is my submission, it is not in agreement with Justice Higgins' order. The next one: the writ of possession alleges judgment creditor in the endorsement. The writ of possession which I believe your Honour was sent in the endorsement. Now, the hearing before Justice Miles, Mr Purnell admitted that was an error. There was some doubts raised yesterday by Justice Emmett that anyone who has got a judgment is a judgment creditor, even a common law judgment for possession is a judgment creditor.

Now, my submission, I said I am not able to elaborate on that other than that an admission was made that there is - accepted there is no judgment creditor and it was a mistake. Now, the issue I am making is a common law writ of possession, there is no - I agree with Justice Miles and the Full Federal Court that the notice to vacate and the warrant of possession is procedural. It has got no force but it is null and void. The writ of possession has not been served on us. It is a writ to the Sheriff.

The notice to vacate is null and void because, (a), apart from everything else, is based on a judgment creditor; (b), it is on behalf of Individual Homes Ltd. There is no entity as Individual Homes Ltd, it is Individual Homes Ltd (in Liquidation). Now, the third one: the warrant of possession is unsealed - unsigned, unsealed. It, in the face of it, claims a trespass be violated. Now, in my diagram - your Honour, if I could refer your Honour to a diagram that I gave - one-page diagram - in my 6 July affidavit - no, it will not be in 6 July. It will be in my affidavit of the 13th, there is a diagram setting out the difference between a common law writ of possession and equity writ of possession and what my understanding of warrant of possession is. Your Honour, it is annexure CC in my affidavit of 13 July, filed in this Court.

HER HONOUR: Yes, I have it.

MR MARTIN: Your Honour, an equity writ of possession, a disobedience is a contempt of court. A warrant of possession is, as the Sheriff has pointed out, criminal trespass. Now, the order that Justice Higgins made was a common law which is the sheriffs who are executing that is not trespassing themselves, is not breaking the peace, but the slightest use of force to evict an occupant is an assault on the occupant. And I have read out the cases from my applicants' summary of argument, the three cases. Your Honour, there are four cases in the UK on it based on the statutory forceful entry which was a statute that was in the UK which has been repealed, I believe, only as recently as 1975. Your Honour, I have got the photocopy. It is referred there. I have got those cases here, your Honour.

HER HONOUR: Yes. But why are we concerned about this?

MR MARTIN: Because, your Honour, that is what is going to happen today.

HER HONOUR: Well, I know that is what is going to happen if a stay is not granted. Whether or not a stay is granted depends entirely on your demonstrating that there is some prospect of your obtaining a grant of special leave which is to say that there is an arguable case, at least, of error in the judgment below. It does not depend at all on the warrant of possession or an equity order of possession. The warrant does not come to you in any event, does it?

MR MARTIN: It has been issued to us. Warrant of possession has been served on us.

HER HONOUR: I think a copy may have been given to you. The warrant goes to the Sheriff.

MR MARTIN: The writ of possession goes to the Sheriff. The notice to vacate is given from the Sheriff to us and a warrant of possession is given from the Sheriff to us, and that has been unsealed, unsigned.

Your Honour, just before I conclude, in my summary of argument, last page, our equitable right is based on a licence to remain in property arising from an oral promise which it would be unconscionable for the property order to depart from, and it is Sharpe (a bankrupt); Ex parte Trustee of the Bankrupt (1980) 1 All ER 198, (1980) - - -

HER HONOUR: Was this raised before Justice Higgins?

MR MARTIN: I think it was. It was suddenly - I am pretty dead certain it was put in my affidavits or my written submission of the 31st. If not, it certainly was raised at the - - -

HER HONOUR: Well, can you take me to those to show whether or not it was raised. Was it addressed before Justice Higgins?

MR MARTIN: Your Honour, it was addressed in the affidavits that I referred to, your Honour.

HER HONOUR: Well, what paragraph? What part of the affidavits?

MR MARTIN: Your Honour, can I complete those authorities? Your Honour, there are a few more authorities. The first one was that. The second one is licence to remain in property, Brown, Trustee in Bankruptcy,

Greasly v Cooke (1980) 3 All ER 710, (1980) 1 WLR 1306 CA.

Your Honour, could you just bear with me? If your Honour could refer to paragraph 32 of my affidavit of 13 July.

HER HONOUR: Yes.

MR MARTIN: It annexes my affidavits of the dates I said. It is annexure EE.

HER HONOUR: No, paragraph 32 refers to an affidavit by Mr Taylor.

MR MARTIN: No, your Honour, I think paragraph 32 refers to affidavits of mine, your Honour.

HER HONOUR: Affidavit of 13 July?

MR MARTIN: Yes, your Honour.

HER HONOUR: Paragraph 32?

MR MARTIN: Paragraph 32.

HER HONOUR: Well, paragraph 32 in the document I have says, "Annexed hereto and marked with the letter "K" is a copy of the said affidavit of Barry Anthony Taylor of 22 December 1999."

MR MARTIN: Your Honour, that is affidavit of 6 July filed in the ACT Supreme Court.

HER HONOUR: I see, thank you. Yes, I see what has happened.

MR MARTIN: My apologies for the interconnection, your Honour. It is not your fault.

HER HONOUR: That is right, paragraph 32 says, "Annexed with the letters `EE'", yes, I have that. I now have that affidavit of 25 March 1999. Now, what do you rely on in that affidavit as an equitable promise?

MR MARTIN: Your Honour, that affidavit also referred to a written submission of 31 March and it referred to all the annexures which are not in this enclosure. Now, I am pretty certain this particular issues that - - -

HER HONOUR: Well, you will have to show it to me. You will have to show me in the affidavit where it is. This is an action in which you are plaintiff. I am looking at the affidavits filed in the proceeding that came before Justice Higgins.

MR MARTIN: Yes, your Honour. These affidavits in action SC182 were consolidated at the request of the respondent with SC404 and all the affidavits that were filed and the written submissions that were filed in SC182 were incorporated in it. Justice Higgins himself - - -

HER HONOUR: Yes. Well, where does this talk about an equitable promise which it would be unconscionable for the respondents to depart from? This is what prompted this inquiry in the first place.

MR MARTIN: Your Honour, all I could say, I cannot place it in the affidavit - in the bulk of the affidavits. The annexure - the written submission of the 31st, with the affidavit of 31 March refers to. It would have been in that written submission or in the annexures and affidavits filed in the ACT Residential. If your Honour would see that the annexures - - -

HER HONOUR: The question is you have to establish that is was a matter that was there before Justice Higgins by way of defence to the claims of possession.

MR MARTIN: Your Honour, it was - if I could put it to you in a slightly separate fashion. It certainly was before the Federal Court and I can show you where it was. It was in the supplementary notice of appeal, the last paragraph.

HER HONOUR: Where will I find that? That still does not say it was a matter in issue before Justice Higgins.

MR MARTIN: Your Honour, you will find that in the applicants' - it is in the supplementary notice of appeal, paragraph 59.

HER HONOUR: Where do I find the supplementary notice of appeal?

MR MARTIN: Your Honour, that is in the Federal Court file from which the special leave is being - - -

HER HONOUR: I do not have the Federal Court files. I have to act on the material you filed in this Court.

MR MARTIN: Can I fax it to you, that one piece?

HER HONOUR: No, we are dealing with this matter now. Because, even on that basis, it does not establish that the issue was there before Justice Higgins to be determined, does it?

MR MARTIN: Your Honour, in a such complex and profuse one that issues have been raised and if it was in the - - -

HER HONOUR: Look, Mr Martin, you will tell me that there was an arguable case for the grant of special leave because Justice Higgins did not consider a defence that was before him. That is the primary basis of your application, is it not?

MR MARTIN: Yes, your Honour. If I could then - I mean, I will overcome - - -

HER HONOUR: And to say it was in the supplementary notice of appeal to the Full Federal Court does not mean that it was before Justice Higgins.

MR MARTIN: Your Honour, I can only overcome my problem by referring your Honour to my special leave application.

HER HONOUR: Well, that is basically what I am working on. What do you wish me to look to in your special leave application?

MR MARTIN: Your Honour, the first one in my special leave application, the ground was that this should not be decided on because the judgment from A44 was not - has not been delivered.

HER HONOUR: Yes. Well, that has nothing to do with the correctness or otherwise of Justice Higgins' decision, has it?

MR MARTIN: Okay. I will quickly flip through - paragraph 4, page 2; paragraph 4, I refer to that.

HER HONOUR: You referred to what?

MR MARTIN: Paragraph 4, your Honour, that is action - - -

HER HONOUR: You refer to what?

MR MARTIN: I refer to the fact that SC182 of 1999 was consolidated with SC404 of 1999.

HER HONOUR: Yes, but that does not say that you raised - or that there was material before Justice Higgins raising this defence of equitable promise that it would be unconscionable to allow the respondent to depart from. That is what you put to me when this debate started, Mr Martin.

MR MARTIN: Your Honour, there is somewhere around in my - I leave the Federal Court - I mean, at the moment, I am left with nothing but my special leave application and if what I have to put is not covered by my special leave application, I have got nowhere to fall back on, your Honour.

HER HONOUR: I will adjourn for 10 minutes. If there was affidavit material before Justice Higgins raising this matter you should have it faxed to me from the Registry in Canberra within the next 10 minutes, but if there was not affidavit material, you have been wasting my time.

MR MARTIN: Your Honour, I do not have all of it. I will try my level best. I will try my level best to read up - - -

HER HONOUR: No, you know what was before Justice Higgins. You know perfectly well what was before Justice Higgins.

MR MARTIN: Your Honour, I do not want to waste your time and I would go and go through my special leave application. If I have not covered it, I have to take whatever comes.

HER HONOUR: It is not a question of - perhaps I can speak to Mr Purnell. Is Mr Purnell there, please?

MR PURNELL: Yes, your Honour.

HER HONOUR: Do you have the affidavits that were put before Justice Higgins in opposition to the grant of summary judgment or to any of them?

MR PURNELL: We have some of them, your Honour. The matter that has been raised by Mr Martin this morning is something that we have heard for the first time this morning and I cannot assist in pointing to that issue being raised by Mr Martin in front of Justice Higgins at all.

HER HONOUR: Well, have you copies of the affidavits that you could show to Mr Martin and he could go through them and see if there is - - -

MR PURNELL: He is more than welcome to go through all the material we have, your Honour.

HER HONOUR: Very well.

MR MARTIN: I just want that and my written submission of the 31st, your Honour.

HER HONOUR: Yes. Well, Mr Purnell, do you have a copy of his written submission of the 31st?

MR PURNELL: Yes, your Honour, it is attached, I think, to the special leave material and it is part of the annexure to the 13 and 14 July material, and it SC182 where the Martins are plaintiffs.

HER HONOUR: Is that annexure EE?

MR PURNELL: Yes.

HER HONOUR: And the written submissions, you say, are annexed to that?

MR PURNELL: They seem to come through the 25th on to 31st.

HER HONOUR: Well, I am having great difficulty finding the papers.

MR PURNELL: They flow on under EE, as we understand it, your Honour.

HER HONOUR: They flow on under EE?

MR PURNELL: Yes. The first affidavit is 25 March under EE. Then, as we understand it, the next one is 31 March and then, lastly, there is one 22 June.

HER HONOUR: That is an affidavit? They are not the written submissions, are they?

MR PURNELL: If you keep going, there is an affidavit of 2 July.

HER HONOUR: An affidavit in support of winding up. Sorry?

MR MARTIN: I think 2 July make reference to the written submission of the 31st, your Honour.

MR PURNELL: That is all we have, your Honour.

HER HONOUR: Very well. I will still adjourn for 10 minutes to give Mr Martin a chance to locate any material in the affidavits before Justice Higgins that he says revealed the defence and was not taken into account. I am to take it that this document that says - I am sorry, I still cannot find anything that looks like written submissions of 31 July.

MR PURNELL: No, we cannot either, your Honour.

MR MARTIN: Could you bear with me, your Honour? I am reasonably sure it is on 2 July, at the end of it, I think - at the end of it - - -

HER HONOUR: Well, I will adjourn now and you can tell me in 10 minutes time and please have all the material together by then and ask the Registry to fax me anything you want me to take account of.

AT 10.22 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.35 AM:

HER HONOUR: Yes, Mr Martin?

MR MARTIN: Your Honour, Mr Purnell nor Mr Brennan has got copies of the - full copies of my affidavits or the written submission. I have to depend only on - I just want to mark quickly what the points in respect of that I have made. There is only one point in my affidavit of - in annexure EE we are talking about - 25 March 1999.

HER HONOUR: Yes.

MR MARTIN: Paragraph 13, your Honour.

HER HONOUR: Yes. Now, what is the point of that?

MR MARTIN: That it was brought in that we had done improvement for 270,000 under the ACT Landlord and Tenant Act, that you cannot give eviction unless that sum is paid to the court or paid to us.

HER HONOUR: Sorry, you cannot get eviction - - -?

MR MARTIN: You are not entitled to ask for an eviction order unless you are paid for the improvements to the improver or paid the money to the court.

HER HONOUR: Now, what section is that?

MR MARTIN: Those were the sections of the ACT Landlord and Tenant Act - ACT Land Titles Act I referred to you earlier on.

HER HONOUR: Yes, but I need to know what particular section.

MR MARTIN: Your Honour, I cannot - I have not looked at it for nearly six or eight months. There is 58 to 153 but there is about only six sections specifically interrelated, your Honour. It is interrelated and those sections were given to you this morning. If I could just go back before I push your Honour's patience. The only other affidavit I want to refer to is my affidavit - this again in EE, your Honour. My affidavit of the 31st is in EE, without the annexures. I have marked down all the paragraphs I just want to quickly refer your Honour to. Your Honour, paragraphs 6 and 7.

HER HONOUR: Yes. Well, how do you say they are relevant?

MR MARTIN: Because that is again under the ACT Land Titles Act. Your Honour, if I could just divert quickly: paragraph 6 is the only reference Justice Higgins made in his reasons and he made a comment that it was unnecessary - the affidavit of 2 July was unnecessary. Justice Higgins made no reference to any of the affidavits and I think, again I go by memory, in his reasons he only made reference to paragraph 6 of this affidavit. Now, your Honour, I thought I had it listed here - 6 and 7. If I could go down to paragraph 11, your Honour. This is the affidavit of 2 July again, still on that. Paragraph 11, your Honour.

HER HONOUR: What does that have to do with this matter, other than the balance of convenience?

MR MARTIN: Your Honour, the proper place to take it is under the ACT Landlord and Tenant - the respondent took it there and, under the ACT Landlord and Tenant Act and now coming back and say, "That's not applicable." If I could just leave it at that without - now, paragraph 20, your Honour. Your Honour, I have been misleading your Honour. Gee, your Honour, I have been misleading your Honour. Your Honour, the ones that I was referring - the first one I referred was 25 March, the first point.

HER HONOUR: Sorry, I am not following you. The first - yes, I have your affidavit of 25 March, yes.

MR MARTIN: Okay. Paragraph 13, your Honour, and the next one is actually affidavit of 31 March, your Honour. In that it is paragraphs 6 and 7. My apologies for confusing your Honour. The only reference in Justice Higgins' reasoning he has given was reference to paragraph 6 and nothing else, that we have had possession from 23 October 1979 and we registered it in the name of the other company on 27 November. That is the only reference. Justice Higgins makes the reference that that is not being disputed. Thereby comes in the paramountcy of the tenancy under the ACT Land Titles Act, I think section 58.

HER HONOUR: But what do you mean, "the paramountcy"? That does not mean it cannot be terminated, does it?

MR MARTIN: Your Honour, the termination - the statutory provisions in relation to tenancy at will, Justice Higgins has not considered any statutory provisions. Justice Higgins just - - -

HER HONOUR: And the statutory provisions you rely on are the ones where improvement has been carried out, is that right?

MR MARTIN: Improvement, yes, and tenancy at will of less than - paramountcy of tenancy at will that predates registration.

HER HONOUR: Well, I do not follow what you are saying there.

MR MARTIN: Your Honour, in every other State of Australia, if you have possession for 12 years, you have got prescriptive title.

HER HONOUR: Yes, but under the ACT law you do not get it against the registered proprietor.

MR MARTIN: No, you do not, because the Crown is the ultimate proprietor. The lessor is the Crown. In the ACT there is no prescriptive or adverse title. Justice Higgins in his reasons in SC182 confused the issue. He has still confused it in his decision of 16 December. He is quoting from the English law and the New South Wales case history which does not take into consideration the special nature of the ACT Land Titles Act. Your Honour, we are still in the affidavit of the 31st, paragraph 11.

HER HONOUR: Yes.

MR MARTIN: Paragraph 20, your Honour.

HER HONOUR: Yes.

MR MARTIN: Your Honour, we now go to the affidavit of 22 June. I make no reference other than I did refer, under paragraph 10, to all the matters - - -

HER HONOUR: What is the affidavit of 22 June? That is EE?

MR MARTIN: Yes, that is also - it following one after the other, your Honour.

HER HONOUR: Well, I am not sure. Wait a moment. Yes, I have that. Paragraph what?

MR MARTIN: In paragraph 10, your Honour, I just refer to all the cases which are - the parties are the same and I hold nothing on that, just to make a passing reference, your Honour, nothing else.

HER HONOUR: Yes.

MR MARTIN: Then my affidavit of 2 July, your Honour.

HER HONOUR: Of this year?

MR MARTIN: , your Honour.

HER HONOUR: Where do I - - -

MR MARTIN: In EE. It is following - the next affidavit in EE.

HER HONOUR: Yes.

MR MARTIN: Your Honour, this is where - paragraph 2, in particular, is where I wasted your Honour's time just now. I did depend on my submission of the 31st, written submission, your Honour. In paragraph 2, if your Honour could read that. Mr Purnell and Mr Brennan, like me, did not think we were going into that. The point I am trying to make is, your Honour, in that written submission I was aware of the fact that my affidavits cannot be argumentative so in my written submission of the 31st I enclosed - and in my affidavit I enclosed all the submissions that was made in the Residential Tenancy - and submissions made in the Residential Tenancy was an issue of - court appointed liquidator is not an officer of the corporation. A solicitor cannot say he is acting for a company in liquidation, et cetera, and I am absolutely certain that the cases I was referring to you were submitted to Justice Higgins - I am sorry, Justice - - -

HER HONOUR: Yes, but it is not the cases - it is not sufficient for you to refer to the cases. You have to establish facts. What I am concerned about is the facts referred to - facts with respect to which there was affidavit evidence which disclosed a possible defence to the proceedings which was before Justice Higgins which was not taken into account by him. It has to be facts.

MR MARTIN: Your Honour, paragraph 4. In fact, your Honour, from paragraph 2 to paragraph 20 - from paragraph 2, right down to paragraph 25, your Honour, of that affidavit.

HER HONOUR: Yes. Well, I do not see anything in particular there that would constitute something that might have been a defence before Justice Higgins. If there is anything, you had better draw my attention to it.

MR MARTIN: Your Honour, if I could just - the reason that particular affidavit did not have any annexures, your Honour, because the annexures were already put in affidavits of 25 March, 31 March and 22 June. I think, from memory, the affidavit of the 25th and the 31st - the affidavit of the 25th was 85 pages and the affidavit of the 31st was 150 pages with all the annexures supporting it and so, when I came to 2 July. Now, your Honour, paragraph 4, that the application under the Landlord and Tenant Ordinance - the respondent made the application under Landlord and Tenant Act 1925 . It was dismissed on 30 June and it was based on the Landlord and Tenant Act. It cannot now be argued it is not applicable as Justice Higgins is applying under the Interpretation Act. It is arguable at the very least.

Now, paragraph 5: Justice Higgins has accepted we have had possession a month before it and the respondent has not argued no. Paragraph 6: I do not think paragraph 6 is anything that would help me in front of your Honour anyway. Paragraph 7 is vital, your Honour: that Justice Higgins had ignored the fact that a specific order for entitlement for vacant possession made by Justice - - -

HER HONOUR: Yes, well I am familiar with that but what you have stated there does not accurately reflect the situation. You told me earlier that the Full Federal Court set it aside because they were not certain, so what has happened is, is it not, that the Liquidator has gone to the Magistrates Court. That has been dismissed. So, to cover all bases, he has come back to the Federal Court. Is that not the correct situation?

MR MARTIN: No, the Liquidator went - your Honour, the Liquidator did not want to go to the Magistrates Court; wanted to go to the Residential Tenancy Tribunal and it was dismissed there because Justice Higgins said they do not have jurisdiction.

HER HONOUR: Very well, yes.

MR MARTIN: Okay.

HER HONOUR: I think you have probably had sufficient time to make a case that there is an arguable case for the grant of special leave, considering that you would be allowed 20 minutes to persuade the Court that you should be granted special leave.

MR MARTIN: I would only refer to paragraph 2 to 25 of my affidavit of 2 July, 2 to 25.

HER HONOUR: Yes, thank you. Thank you, Mr Martin. Mr Purnell.

MR PURNELL: Thank you, your Honour. Your Honour, this year on 18 May in the Full Federal Court constituted by Justices Wilcox, Burchett and Marshall, we commenced the appeal at about 2.15 and we finished it about 6, and the question that was put to Mr Martin on more times than I can recall was the same question that your Honour has put to him this morning, namely, what is the arguable grounds in relation to the special leave application or the arguable grounds to demonstrate error by Mr Justice Higgins.

HER HONOUR: Mr Martin has said that his Honour has failed to have regard to the fact that he and his wife claimed to have effected improvements and the ACT - I think it is the Land Titles Act - prevents his being evicted without the improvements being paid for. Now, what do you say about that?

MR PURNELL: The first one, your Honour, relates to a decision of Justice Higgins dated 27 May 1999 and that is No 182 of 1999. Does your Honour have that?

HER HONOUR: No. I have - look, I cannot believe that I have been asked to determine this matter with the papers I have. I have no idea what I have. I am not the Federal Court. It is no use quoting numbers at me. I just do not know what they are.

MR PURNELL: This was a decision or a reason for rulings brought about because Mr Martin asked Justice Higgins to consider six questions. The second question was this:

whether the first and second defendant is entitled to a writ of possession until the first and/or second defendant -

and that is Individual Homes and/or Mr Taylor in that -

pays into court for the use of the plaintiffs the value of the improvements done by the plaintiffs on the said 8 Grund Place, Kambah, namely, the sum of $270,000 in accordance with sections 58(1)(d), 85(1), 89, 152, 153 and 154(1)(b) and (c) of the Australian Capital Territory Land Titles Act?

And his Honour answered that question, "No."

HER HONOUR: Yes. Well, now, what happened then? I do not know what that proceeding was.

MR PURNELL: It was a peculiar proceeding, your Honour. There was no cause of action that grounded it. Justice Higgins was trying to assist, in my respectful submission.

HER HONOUR: Well, that is not judicial power. What was that directed to?

MR PURNELL: That is what is going to be decided by the Full Federal Court in the matter that has been referred to as A44.

HER HONOUR: Well, is that not necessarily tied up in what is here asserted?

MR PURNELL: No, your Honour, that was looked at yesterday.

HER HONOUR: Well, it may have been looked at yesterday but as I understand it, Mr Martin is asserting that there was material before Justice Higgins to raise a claim that the Liquidator was not entitled to possession until he paid for the improvements.

MR PURNELL: Yes. Well, that argument was not run in relation to the order on which there is now an application for special leave.

HER HONOUR: That is beside the point, is it not? That is beside the point. The matters were consolidated?

MR PURNELL: No, they were not, your Honour. There was an application for it. They were heard together. The matters were not consolidated.

HER HONOUR: Well, how did these matters get split like this?

MR PURNELL: Well, because - - -

HER HONOUR: Were the affidavits read? The affidavit opposing summary judgment of 2 July?

MR PURNELL: Yes, that was read, your Honour.

HER HONOUR: That was read, and that refers to the affidavits of 31 March and 22 June.

MR PURNELL: Yes, your Honour.

HER HONOUR: And those affidavits, do they not, assert that the plaintiffs have effected improvements to the land?

MR PURNELL: Yes, that is so.

HER HONOUR: And it was known at the time that Mr Martin was asserting that the Liquidator was not entitled to possession unless those improvements were paid for?

MR PURNELL: Yes, that was what was being asserted, your Honour.

HER HONOUR: Well then - - -?

MR PURNELL: That was addressed on - - -

HER HONOUR: Now, is that an arguable ground?

MR PURNELL: We say no, your Honour.

HER HONOUR: Well, I know you say no. Is that the law or not in the ACT?

MR PURNELL: It is not the law in the ACT, for the reasons that his Honour set out in - - -

HER HONOUR: Well, I have not seen the reasons that his Honour set out. I do not know where they are. If that is on appeal, I do not understand why these matters have been dealt with separately. If that is on appeal and it goes to the question of your entitlement to possession or, alternatively, Mr Martin's entitlement to possession, why is it not part of this case?

MR PURNELL: Well, because Mr Martin amended that matter to seek an order to wind up the company and it was that aspect - - -

HER HONOUR: That does not make sense. Perhaps he sought an order to terminate the winding up.

MR PURNELL: Yes, he did, your Honour, and that is the matter that was dealt with by Justice Emmett yesterday in the judgment that you should have, I think, your Honour.

HER HONOUR: All right. Well, leave that aside. What has happened to this question whether or not he is entitled to remain in possession until the improvements are paid for?

MR PURNELL: It is in - does your Honour wish me to read the - - -?

HER HONOUR: I wish you to tell me what has happened to that.

MR PURNELL: It is on appeal as a ruling on a question of law posed by Mr Martin in the Full Federal Court and it is - - -

HER HONOUR: Well, I do not understand how it can go on appeal. What is the matter?

MR PURNELL: There is not one as such.

HER HONOUR: No, because it was - - -

MR PURNELL: That is what the Federal Court is going to address, your Honour.

HER HONOUR: Yes, but should it not properly have been - I mean, you at least are a legal practitioner, I take it. I do not understand how these matters have gone off in leaps and hops, skips and jumps in separate directions to the confusion of everyone, to the cost of court time. Now, is there a possibility that there is an arguable case under the ACT Land Titles Act that a registered proprietor or a lessor is not entitled to possession without paying for improvements effected by the lessee?

MR PURNELL: We say no, your Honour. It was addressed as a - - -

HER HONOUR: I know you say no, but help me by telling me what the legislation is.

MR PURNELL: Section 153 of the Land Titles Act was the section that Justice Higgins addressed.

HER HONOUR: Well, what does that say?

MR PURNELL: I will just turn that up. Just whilst the legislation we are trying to locate, your Honour, I will just read what Justice Higgins said, that that section "assumes that the second defendant would otherwise be entitled to possession but that the plaintiffs have personally made improvements to the property". However, what the plaintiffs in this case assert is that the second plaintiff provided to the second defendant the moneys used by the later to purchase the Crown lease, including the improvements then and currently erected upon. It has already been authoritatively determined that the provision by the second plaintiff of funds towards that purchase did not confer any caveatable interest on the plaintiffs or either of them. It has also been determined that the unregistered mortgages asserting the existence of a charge over the Crown lease in consequence of the provisions of such funds were void and of no effect. This section does not provide any relief to the plaintiffs. They have provided no evidence that, as tenants, they have made any improvements to the property.

HER HONOUR: Well, the document I am reading says that the first plaintiff designed and physically built the house.

MR PURNELL: Well, that is the assertion, I think, that is in the affidavit, your Honour.

HER HONOUR: Yes. Now, what does section 153 say?

MR PURNELL: I am just trying to find it.

HER HONOUR: Now, Mr Purnell, it is clear beyond argument that this litigation is a mess, absolutely clear beyond argument. You do not seem to be able to answer my questions. Mr Martin has not been able to deal effectively with the issues. I do not understand why the litigation was ever disjoined in the way it was. I cannot see that the matter has been - the question of section 153 has been dealt with although, prima facie, it seems to have been raised.

I have given the parties a very considerable time and I find I am not getting answers. I think the only course that I can sensibly take to allow the parties to consider their position and get their arguments in order is to adjourn this application and, because of my other time commitments, it will have to be adjourned until Monday, 31 July. I can deal with it in Canberra. Now, I do not seem to be getting any assistance at this stage in dealing with the matter. So, will that give you time to deal with it?

MR PURNELL: Yes, your Honour.

HER HONOUR: And I would propose that there would be a stay in the meantime. It is not to say it will be continued further but I need by 31 July to have all relevant documents and a proper chronology of all the proceedings and an account as to how they went forward in the way in which they did.

MR PURNELL: You have a chronology, your Honour.

HER HONOUR: Well, it does not seem to explain anything about this question of law.

MR PURNELL: No, it does not, that is true.

HER HONOUR: Which I cannot, for the life of me, understand how there could have been questions of law in a vacuum, but so be it. I take it there is no great hardship if the stay is continued until 31 July.

MR PURNELL: No, your Honour.

HER HONOUR: Very well. If a stay is ordered, I am sorry, until 31 July.

MR PURNELL: No, I knew what your Honour meant.

HER HONOUR: Yes, very well. I will stay the execution of the writ of possession until 4 pm on 31 July. I will list the matter for hearing in Canberra at 2 pm on that day. But, please, I need to have the documents and a sensible account of these proceedings and an indication of what these proceedings are in the Full Federal Court. Do you understand what I am - - -

MR PURNELL: Yes, your Honour.

HER HONOUR: And the critical issue is whether, so far as I can presently see it, there was material before Justice Gallop to indicate a claim with respect to improvements and I would also need to know exactly what the terms of the Act are.

MR PURNELL: Yes, your Honour, I understand.

HER HONOUR: Very well. I will adjourn it until 2 pm in Canberra on 31 July.

MR MARTIN: Thank you, your Honour.

MR PURNELL: May it please the Court.

AT 11.08 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 31 JULY 2000