Von Risefer & Anor v Permanent Trustee Company [2003] HCATrans 354 (12 September 2003)

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Von Risefer & Anor v Permanent Trustee Company [2003] HCATrans 354 (12 September 2003)

Last Updated: 19 September 2003

[2003] HCATrans 354

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B67 of 2000

B e t w e e n -

EUSTACE VON RISEFER and ELIZABETH VON RISEFER

Applicants

and

PERMANENT TRUSTEE COMPANY LIMITED

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 SEPTEMBER 2003, AT 12.59 PM

Copyright in the High Court of Australia

MRS E. VON RISEFER appeared in person.

MR M.J. DRYSDALE: If the Court pleases, I appear for the respondent. (instructed by MacGillivrays)

MRS VON RISEFER: Your Honours, I like to have the leave of this Court - - -

KIRBY J: What is your name?

MRS VON RISEFER: I have to request the leave of this Court to file an affidavit for the notice of motion before this Court.

KIRBY J: I am not hearing you, I am afraid, Mrs von Risefer. You are Elizabeth von Risefer?

MRS VON RISEFER: Yes, your Honour.

KIRBY J: You are one of the applicants in these proceedings?

MRS VON RISEFER: Yes.

KIRBY J: I think that Mr Eustace von Risefer, the other applicant, is unwell, is that correct?

MRS VON RISEFER: Yes, and he is - - -

KIRBY J: Does he know that the proceedings are before the Court today?

MRS VON RISEFER: Yes, your Honour.

KIRBY J: Has he asked you to speak on his behalf as well as on your own behalf?

MRS VON RISEFER: Yes, your Honour.

KIRBY J: Yes, very well. Now, I think, Mr Drysdale, you are up in Brisbane and we can see you here on the video link and you are opposing the grant of special leave?

MR DRYSDALE: Yes, your Honour.

KIRBY J: Yes, very well. Yes, Mrs von Risefer. Would you raise your voice because it is otherwise very difficult for me to hear and it is important that Justice Hayne and I should hear you.

MRS VON RISEFER: Thank you. Your Honour, I will request first that the notice of motion to be heard and the leave of the Court to file those affidavits.

KIRBY J: What page is it?

MRS VON RISEFER: It is an affidavit sworn today and I need the special leave of the Court to file those. They have been faxed this morning to the other side.

KIRBY J: You have some documents you wish to hand up?

MRS VON RISEFER: Yes.

KIRBY J: Very well, hand up the additional documents, please. Have you sent a copy of these to the solicitors for the respondent so that Mr Drysdale could have these documents?

MRS VON RISEFER: Yes, your Honour, they have got all those documents.

KIRBY J: Have you seen an affidavit of Elizabeth von Risefer which is sworn 12 September 2003, Mr Drysdale?

MR DRYSDALE: Yes, your Honour, I was given a copy by the Registry of this Court.

KIRBY J: Yes, very well, thank you. We will just take a moment to have a look at that affidavit.

MRS VON RISEFER: Thank you.

KIRBY J: Now, you and Mr von Risefer are seeking special leave to appeal against the dismissal by the Court of Appeal of an application staying the judgment of the trial judge. That is correct, is it?

MRS VON RISEFER: Correct, your Honour, but before that leave to appeal, I like the notice of motion to be heard because we are in the process of instructing a solicitor to act on our behalf and request an adjournment.

KIRBY J: Yes, but can I explain this to you: As I understand the record of the Court, you are seeking special leave to appeal from an order refusing to stay a judgment of the trial judge, and in the meantime the property which was the subject of that stay application has been sold in October 2000. So the respondent says there is no point in getting a stay to prevent the sale of the property because the property now has been sold. So the High Court does not need to get involved in the matter because it has been overtaken by events. What is your answer to that suggestion?

MRS VON RISEFER: Your Honour, before the High Court in Brisbane, were not sufficient documents that the house ever been sold. The house never been sold and there is not any contract or stamp duty paid. The house never was transferred by the mortgagee, never proved, and today I will demonstrate my right to prove that there were not agents, there were not mortgagee, they never have the right to transfer the house, nor to sell the house. So, therefore, there are grounds today that back in that application before the High Court there was a misrepresentation, miscarriage of justice and the respondents never proved that they were a contract, a sale. They never been the agents, they never been authorised and today I have got proofs that the supposed beneficiary or the mortgagee or the credit provider for Permanent Trustee are not even registered in Australia, not even have a local agent and according to the High Court, in my affidavit sworn today, the representation that the agent had no authority to enter behalf of a company into a contract of the kind sought to be imposed was made to the contractor.

According to the High Court, there are four different requirements of the trustee or the credit provider to act as agents of another trustee. Therefore, I deal today all those proceedings been without any authority them to act, La Trobe to act on behalf of Permanent Trustee, Permanent Trustee to act on behalf of Overseas Chinese Banking Corporation. Permanent Trustee today, Permanent Trustee’s statute is that been merged with the trust company, been taken over by the trust company and they does not have any right to represent or to construct any solicitor. In several times we have requested that authority which never been.....or which never been presented, proved or they never satisfy the court or us that they are the agents or they can represent the Permanent Trustee any more.

The Permanent Trustee are not existing any more as a corporation and this is against the duty of care, even for the High Court Judge because that was before him. We did bring in the High Court’s attention that Permanent Trustee against the public interest, they have given thousands of home loans to foreigners. They have transferred their securities related with Australian mortgages. This is against the foreign acquisition. This is through the clear house. On 28 February they have assigned their security interest for $400 million to IBJ in Melbourne. They have assigned the mortgages to Overseas Chinese Banking Corporation.

They did state through the solicitor of Permanent Trustee, Mr Watson, that “No, we are not the credit providers, we are not the mortgagee, we have authorised Overseas Chinese Banking Corporation to
use our name and.....their own mortgages in Australia”; and I have today filed in the Court exhibit B sworn today that Overseas Chinese Banking Corporation, it is the beneficiary for the trustee and not even registered in Australia. The local agent who was appointed in 2001, that was only four years after we obtained our loan, so whose funds, who is the mortgagee, never been proved.

According to the....system, the clearance house, all those securities they been assigned to IBJ or to Overseas Chinese Banking Corporation, according to the Permanent Trustee. There are exhibits, there are deeds been filed as exhibits in the court procedure that the credit provider was not Permanent Trustee. Therefore, never proved that they were the mortgagee. According to his Honour Justice Shepherdson who order that, you have to prove that you are the mortgagee, you have to prove the mortgage.

We have here another party who act as agents, La Trobe Home Loans, acting as agent without any authority. La Trobe Home Loans are the ones they started the action. They are the ones they transfer illegally to the property to someone else; by coincidence, again, it is the same solicitor who did the deed with the Overseas Chinese Banking Corporation, Minter Ellison. The same solicitor transfer the house without a contract, without stamp duty, therefore it is void.

Justice Byrne, there was another judgment in the same writ which was permanent set aside by Justice Wade on 12 February 1999. Justice Byrne against the.....estoppel, he never have the right and this is in the court transcripts, that he got the difficulty to start the trial in the same jurisdiction, not Full Court, not been Appeal Court and I have to clear here is that the notice of motion we have got today are available of appeal.

KIRBY J: Yes. What is your response to this motion, Mr Drysdale?

MR DRYSDALE: Your Honour, I oppose the notice of motion, the grounds contained therein. In respect of the - - -

KIRBY J: When were you first given notice of this motion?

MR DRYSDALE: Yesterday afternoon, your Honour.

MRS VON RISEFER: It was filed before three days, that - - -

KIRBY J: Just a moment, please.

MRS VON RISEFER: Sorry, your Honour.

KIRBY J: Mr Drysdale listened to you in silence, so I think you should do the same.

MRS VON RISEFER: I do apologise.

KIRBY J: Yes, we do not need to hear you further on the motion, Mr Drysdale.

MR DRYSDALE: Thank you, your Honours.

KIRBY J: You can take it that the motion to remove the matter to Melbourne is refused. It was sought at a very late stage when this matter had been before this Court for a very long time and it is in any case futile in the light of the matters that you seek to argue. So do you wish to say anything further on the substance of the matter?

MRS VON RISEFER: On the notice of the motion, yes, I do have and if this Court insist on not to grant me with an adjournment, regardless if that will be in Brisbane, in Canberra or in Melbourne, I have today requested again an adjournment due to that a solicitor is instructed now and I do not need that again to represent myself and my husband. This is for the Court as well. Waters & Tims Solicitors, they have been instructed - - -

KIRBY J: You want to hand that up to us now?

MRS VON RISEFER: It is with you, your Honour. It is exhibit C with the affidavit sworn this morning.

KIRBY J: I see, exhibit C, yes, I have that. Yes, this is a letter from Waters & Tims Lawyers of Cranbourne in Victoria saying that they are happy to act for you in this matter and await your instructions. The letter is dated 11 September 2003, that is to say yesterday, and this matter was pending in this Court for several months to be heard today and we get a letter from the solicitor saying they are waiting for instructions yesterday.

MRS VON RISEFER: Yesterday, your Honour, and I was informed for 12 September only on 18 August. That was received days later and it is very complicated matter, it is a lot involved for a solicitor and for funds. That was when - - -

KIRBY J: I realise it is complicated but you have brought two Justices of the High Court of Australia, you have brought Mr Drysdale, counsel for the respondent, and no doubt his instructing solicitors, perhaps his clients, the Court Registrars, the Court officers and everybody here today to hear your case and on the basis of a letter which you procure yesterday from solicitors in a matter that has been so long pending, you are asking for an adjournment of the case. There is no basis on which you could have that adjournment.

MRS VON RISEFER: Your Honour, that adjournment - - -

KIRBY J: That is not the way the courts in this country operate or should operate.

MRS VON RISEFER: If the Court will not grant me as my fundamental right to be represented, if the Court is not going to grant an adjournment due to that a solicitor will act on my behalf, then I will go to the issue whether Mr Drysdale can sit there and represent the respondent, because I have proved this morning with documents, exhibits A, B and C, that that company is not existing any more. So, therefore, they have to bring us an authority from the trust company, from the board of the directors and we have to see - they have to demonstrate - they have to think of the time of this Court because it was not pleasant for me to be before this Court along with the same lack always with my English.

KIRBY J: Yes.

MRS VON RISEFER: Now, according to whether they can - your Honour, they have to prove today I have requested - I have proved that Overseas Chinese Banking Corporation is not incorporated in Australia. They never have any local agent to represent them, that is against the foreign acquisition, the Constitution, of holding securities over urban land, residential loans; but, most of all, Mr Drysdale represents La Trobe who is a manager of Permanent Trustee. Permanent Trustee is the manager of Overseas Chinese Banking Corporation who is not incorporated in Australia. Permanent Trustee been taken over by a trust company. All the board members they been resigned. We do not have the authority today, we have in the Court - - -

HAYNE J: Mrs von Risefer, the case against you at trial was that Permanent Trustee Company Limited was the mortgagee. You seek to go behind that and refer to these other matters. Why should we be concerned with anything more than who was mortgagee?

MRS VON RISEFER: Because my company, your Honour, stopped having any rights when they deregistered the company and, therefore, today Permanent Trustee is not existing. They have transferred, they been merged.

KIRBY J: There are many problems in what you are trying to do, but one of them is that this is not a matter which you litigated in the courts below.

MRS VON RISEFER: It is. The status - - -

KIRBY J: It is not a matter which you have disputed and it is not a matter relevant to the issue on the record before us. As well as that, in order to make it such a matter, you would have to tender evidence to the Court such as the certificate that you are now putting before us, and this Court has said it will not receive fresh evidence in an appeal. So the whole thing is a very lately conceived idea which is completely futile.

MRS VON RISEFER: Your Honour, if I am sitting before this Court and try to demonstrate whether I have grounds to have leave to appeal, so that means if I may succeed, one of a million - if I will succeed to have the leave of appeal today, they will have the liabilities and they will have the opposite of the liabilities. So that means that Court needs to be satisfied whether there is a Permanent Trustee as legal entity.

So this is not for me, this is not for the party sitting before you trying to demonstrate whether I have any grounds to have the special leave to appeal. But this is whether they have the right to stand before that Bench and represent the respondent because today I have not put any fresh evidence. This is an old – the Overseas Chinese Banking Corporation been fired by the respondent as that they are the mortgagee. This is not new finding, that finding was before Justice Byrne. That was an exhibit been filed on behalf of the plaintiff then.

So today I do not have any fresh evidence or findings, but I demonstrate here that Permanent Trustee is not incorporated. Therefore, they cannot stand before this Court to represent that matter and La Trobe, they cannot act as agents of another agent of another agent without any authority. I am giving this Court something is not new. A trustee cannot – it is a common law, a trustee cannot act or start procedures as a third party on behalf of beneficiaries and beneficiaries that they are in overseas, not incorporated in Australia. They supposed to do that for the tax purposes, they are supposed to be without any profits. They were worth $96 billions in securities and today they did not have even the costs to make the.....with the trust company. This is the big issue here before I will start the special leave to appeal. Permanent Trustee does not have the right - - -

KIRBY J: Yes, very well. I think your time has expired, Mrs von Risefer.

MRS VON RISEFER: Permanent Trustee does not have the right to stand before this Court - - -

KIRBY J: Yes, you have said that and we understand the point that you are trying to make. Thank you very much, your time has expired. Just resume your seat, please.

MRS VON RISEFER: Your Honour, that was the notice of motion, I believe.

KIRBY J: Yes, we have the notice of motion before us.

MRS VON RISEFER: That was the notice of motion.

KIRBY J: When this matter was called this morning, Mrs von Risefer, who speaks with the knowledge and at the request of Mr Eustace von Risefer, the other applicant, presented a notice of motion purportedly on behalf of herself and her husband. By that notice of motion she sought orders that the appeal, as it was described, in this matter be transferred from Brisbane to Melbourne due to the fact that the applicants are now living permanently in Melbourne and that the hearing be adjourned until a further date before this Court in Melbourne.

In support of the notice of motion Mrs von Risefer tendered an affidavit sworn by herself. To that affidavit were attached a number of documents. One of them was a letter of yesterday’s date from a firm of solicitors in Cranbourne in Victoria merely stating that “I am happy to act for you in this matter and await your further instructions.”

This application for special leave has been listed before this Court for several months. The applicants have been aware of that listing. The application by the notice of motion for transfer of the case and for adjournment of the hearing is refused. It comes too late and, in any case, as I will indicate, to grant it would be futile.

The applicants’ formal proceedings challenge orders of the Court of Appeal of Queensland which heard the appeal by the applicants on 6 August 2000, 30 August 2000 and 13 September 2000. The Court of Appeal ultimately dismissed the applicant’s application for orders staying a judgment of a primary judge. By that judgment, after a trial of 19 days duration, the primary judge had held that the respondent trustee company, as mortgagee, was entitled to recover property in which the applicants were interested for default in the payment by the applicants of their mortgage payments. The applicants seek special leave to appeal from the refusal of the stay.

Such an interlocutory issue of practice and procedure would rarely attract a grant of special leave from this Court. It does not here because it has been rendered unnecessary by supervening events. According to the document filed by the respondent, the property in question was sold to a third party in October 2002. Accordingly, there would be no point in this Court’s becoming involved in a consideration of the application for special leave in respect of the refusal of the Court of Appeal to grant a stay on that sale.

In the course of the argument of the application, Mrs von Risefer for the applicants also sought to challenge the orders made by the primary judge, or perhaps the orders of the Court of Appeal, dismissing the orders against those orders at trial. Even if the application is understood in that enlarged way, it would enjoy no prospects of success.

Various other matters irrelevant to the issue in the application were raised by Mrs von Risefer for the applicants. No ground was shown for the grant of special leave. Special leave is therefore refused. The applicants must pay the respondent’s costs.

AT 1.27 PM THE MATTER WAS CONCLUDED