Vasiliou v Westpac Banking Corporation & Ors [2007] HCATrans 713 (21 November 2007)

Last Updated: 3 December 2007

[2007] HCATrans 713

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M71 of 2007

B e t w e e n -

PANAYIOTA VASILIOU

Applicant

and

WESTPAC BANKING CORPORATION

First Respondent

LACHLAN IAN FENWICH

Second Respondent

REGISTRAR OF TITLES

Third Respondent

Application for expedition

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 21 NOVEMBER 2007, AT 10.05 AM

Copyright in the High Court of Australia
MR A. VASILIOU appeared in person.

MR D.J. CHRISTIE: May it please your Honour, I appear for the first respondent. (instructed by Minter Ellison)

MR A.M. FLOWER: If your Honour pleases, I appear for the second respondent who is the applicant before you this morning. (instructed by Hunt & Hunt)

MR S.M. HORGAN: If your Honour pleases, I appear for the third respondent. I should also mention that, in fact, Mr Vasiliou appears on behalf of his daughter. (instructed by Victorian Government Solicitor)

HER HONOUR: On behalf of his daughter.

MR HORGAN: His daughter is the applicant.

HER HONOUR: His daughter is the applicant. Yes. I will next hear from the moving party in relation to today’s application.

MR FLOWER: If your Honour pleases, it is an application brought by way of summons dated 8 October that the application for special leave be expedited. In support of that application I rely upon the affidavit of Lachlan Ian Fenwick sworn on 3 October 2007 and I read that affidavit.

HER HONOUR: Yes, thank you.

MR FLOWER: Can I take your Honour to that affidavit?

HER HONOUR: The material has been read, Mr Flower, and you can proceed on that assumption.

MR FLOWER: Your Honour, it is a short affidavit and the basis for the desire of the second respondent to expedite the special leave application relates to the proposed development, the property the subject of the proceeding. Your Honour will note from paragraph 8 that there are various unregistered dealings that are currently lodged with the third respondent which are relevant to the development of the property going forward. The third respondent has lodged a notice of action on the property which is a device by which it notifies parties that it is exercising its discretion not to register the dealings for various reasons.

The affidavit reveals the fact that my instructing solicitors requested the third respondent to remove the notice of action and that request is pursuant to the letter which is LIF3. That request was met by a refusal and reasons for that refusal which are exhibits LIF4 and LIF5. LIF5 is a reasonably learned dissertation both on the power and the reasons for the Registrar in seeking to maintain its notice of action. To that extent we submit to that action and do not quibble with the entitlement or the right of the Registrar to maintain that proceeding because, indeed, on one view, if this special leave application is successful and the appeal is successful, it is perhaps unlikely but it is possible that the transactions, the subject of the principle proceeding, could be overturned and - - -

HER HONOUR: It is not difficult to appreciate responsible grounds in relation to seeking the expedition. Can I ask you this question. As I understand it, there are no further preparatory steps which need to be taken in relation to the special leave application and that all the necessary paperwork has been completed?

MR FLOWER: I am not sure about that, your Honour. The special leave application is in a rather curious form in that it is almost a special leave application and a summary of grounds in itself.

HER HONOUR: That just conflates, I suppose, what one would normally expect to see, that is, to be apprised of both the application and the proposed grounds should leave be granted.

MR FLOWER: Yes, indeed, and to the extent that this application purports to do so, it seems to do so in fairly comprehensive terms. So, from the point of view of the second respondent, the second respondent has filed a submitting appearance and that was done on 26 June 2007 so, yes, your Honour, in terms of the preparation of the special leave application, there is very little that needs to be done. I am not sure if the Court would need an application book filed but that is something that could be accommodated in any proposed order.

HER HONOUR: Yes. Expedition would not result in a hearing this side of Christmas, in any event.

MR FLOWER: I understood that, your Honour.

HER HONOUR: It seems to me that perhaps what I ought to do is inquire of Mr Vasiliou, having regard to the fact that all the preparatory work is completed, about a proposed order which would result in as much expedition as the business of the Court would allow but would not result in a hearing of the application until some date, at the very earliest, in February of next year.

MR FLOWER: If your Honour pleases.

HER HONOUR: Thank you, Mr Flower. Mr Vasiliou, you have heard the rudiments of the application.

MR VASILIOU: Yes, Madam.

HER HONOUR: As I understand it, matters are thoroughly prepared.

MR VASILIOU: Yes. I have done what I have to do. There is nothing further I can do. I am waiting for the Court to direct me further.

HER HONOUR: Yes. What I am inclined to do, Mr Vasiliou, is to provide that your application for special leave be determined as expeditiously as the business of the Court will allow which I have already indicated would not result in a date for the hearing of that application until next year and I would also provide that the costs of today be the costs of the application for special leave to appeal. So they will effectively be reserved till that later time.

MR VASILIOU: No, I do not think that is right. I do not believe that is right, your Honour, because Mr Fenwick has chosen not to be a party of this hearing which I have wrote to the Court and said whatever the Court rules, I am happy with it. So this expedition thing that they are talking about is his call and not our fault at all and we do not want to pay for the costs for this application at all.

HER HONOUR: Right. I had not completed my sentence. I was going to say, postponed until a later time to be the costs of the appeal.

MR VASILIOU: Yes.

HER HONOUR: But, you are, of course, at liberty to make an application for the costs of today which I understand from what you have just said is what you now do?

MR VASILIOU: Yes. And, also, I must say that all the things that Mr Fenwick wants to do now are totally illegal.

HER HONOUR: That will be a matter to be dealt with at another time.

MR VASILIOU: Yes, because the documents, including the title, has been impounded by the Titles Office and Mr Fenwick has not disclosed that to the council. He has gone ahead and demolished the house. He went ahead and obtained a permit to build two houses there. He has already finished the houses. It is not a proposed development but it is a final development. He tried to transfer the property to his wife to avoid being detected for – you know, trying to confuse the court and - - -

HER HONOUR: Let me just ask you to pause for a moment. Did you file any material in relation to the present application for expedition?

MR VASILIOU: Yes, I did. I filed an affidavit and things like that.

HER HONOUR: That was after the application was made, was it?

MR VASILIOU: Yes, I did file it with the Registrar, personally. It is an affidavit.

HER HONOUR: Yes. I will just ask you to sit down. Mr Flower, you have heard what has been put. Why should I not order that Mr Vasiliou’s costs of today be paid by your client?

MR FLOWER: Because the application has been found to have merit. It is appropriate that the matter be expedited. The fact that there is a submitting appearance, in my submission, in terms of having the matter resolved is neither here nor there. We simply want the matter resolved. It is the usual order in these applications, as evidenced by the dozens of applications that are made for expedition each year, that they be costs in the special leave application. That does not shut him out down the track from arguing such costs as may be appropriate but I have, frankly, basically been successful today and therefore he should not be entitled to his costs.

HER HONOUR: I suppose the issue is, could you have been successful with a simple letter without the necessity to come to Court having regard to the precise order that you have succeeded in obtaining today.

MR FLOWER: Perhaps, your Honour, but we received an affidavit from Mr Vasiliou, most of which is inadmissible, but the relevant paragraph indicates opposition to the application:

My daughter the Applicant for Special Leave objects to have her application “pushed” through the Court -

So that opposition has been indicated. That is an affidavit sworn two days ago which requires us to be here. So, in my submission, the order proposed by your Honour is the appropriate one.

HER HONOUR: I will just revisit that affidavit. Thank you, Mr Flower. Yes, Mr Vasiliou, I am inclined to make the order as I originally indicated.

MR VASILIOU: Yes, I understand. I understand but you must - - -

HER HONOUR: It seems to me appropriate. What I was in the middle of saying when you rose to make your application for costs, which you are perfectly entitled to do, was that that issue will be determined at another time, not today.

MR VASILIOU: Yes, fine. I do not have an issue with that, your Honour, but we must all understand that everything that is pushed through in a hurry it does not get heard properly. You know, if you cook a steak in a hurry it is not cooked properly. If you bake a cake in the oven in a rush it still does not taste good.

HER HONOUR: As I indicated, the matter will be determined as expeditiously as the business of the Court will allow.

MR VASILIOU: Yes, I do not have an issue with that as long as the matter is being handled properly. There is a lot of issues of fraud here, your Honour. You must convey that to the Judges. There is a fraud issue here, about $650,000 and that is not including the loss of opportunity. Mr Fenwick has benefited $650,000 to date from my daughter.

HER HONOUR: Yes, very well. If you would take a - - -

MR VASILIOU: So my daughter needs to get at least $650,000 in order to release herself from that property. That is the minimum amount without the loss of opportunity. That is very important. It is a fraud here.

HER HONOUR: I understand that. Thank you.

MR VASILIOU: The issue here is that the Court must understand people like us, you know. There is two judges very, very criminal involving the Supreme Court, the original judge and also Justice Neave, that she is the wife of the banking ombudsman, right. She should not be allowed – she heard the appeal twice and we refuse her to hear the appeal and she is the one she make the decision. The other two judges they just went ahead for the other business and she made the decision, they just simply agree with her, which is wrong, very, very wrong.

HER HONOUR: Very well, Mr Vasiliou.

MR VASILIOU: It is very pathetic, very pathetic that we have to reach this stage to get some justice. The property has just been taken away, sold within a month to these people here for $400,000 when exactly the same block of land next door sold about three weeks later for 890,000. My daughter lost half a million dollars and then it is five years ago she lost $5 million that he is benefiting from and accumulating interest and all that, it is over 680,000 or more, just as it happened five years ago.

HER HONOUR: Very well, Mr Vasiliou.

MR VASILIOU: Now, we have got to make it clear. We are not here to play games.

HER HONOUR: You will have an opportunity to do that in due course.

MR VASILIOU: Thank you.

HER HONOUR: I am assuming that Mr Christie and Mr Horgan have nothing to add?

MR HORGAN: No.

MR CHRISTIE: Your Honour, in terms of that costs order you are proposing I would ask that the Bank’s costs also be picked up in the costs of the special leave.

HER HONOUR: If it is the costs of today, they are the costs of everybody appearing today.

MR CHRISTIE: Yes, thank you, your Honour.

HER HONOUR: It might be wise to reiterate the order, having regard to the debates which have occurred. The order is:

1. The applicant’s application for special leave to appeal dated 22 June 2007 be determined as expeditiously as the business of the Court will allow.

2. Costs of today be the costs of the application for special leave to appeal.

MR FLOWER: If your Honour pleases.

MR CHRISTIE: If the Court pleases.

HER HONOUR: Adjourn the Court.

AT 10.20 AM THE MATTER WAS CONCLUDED