Maher & Anor v Commonwealth Bank of Australia & Anor [2008] HCATrans 328 (18 September 2008)

Last Updated: 23 September 2008

[2008] HCATrans 328

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M54 of 2008

B e t w e e n -

DENNIS MAHER

First Applicant

ELIZABETH JOANNA MARIS MAHER

Second Applicant

and

COMMONWEALTH BANK OF AUSTRALIA

First Respondent

REGISTRAR OF TITLES

Second Respondent

Application for Stay

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 18 SEPTEMBER 2008, AT 9.32 AM

Copyright in the High Court of Australia

MS R.S. SLEETH: May it please the Court, I appear for the applicant. (instructed by Darron Nelson Solicitor)

MR R.D. SHEPHERD: If your Honour pleases, I appear on behalf of the first respondent. (instructed by AJ Mullumby)

HER HONOUR: Yes, Ms Sleeth.

MS SLEETH: Your Honour, I have been instructed to seek an adjournment in this matter on the basis that my client was of the view that his application would take a longer period to be called on and he only received notice of today’s sitting on the 9th of this month and he was unable to instruct his solicitor until Monday of this week.

HER HONOUR: We have received from Darron Nelson Solicitor a written response in relation to matters which would be ventilated today and that written response indicates that the applicant was seeking to amend his summons.

MS SLEETH: Yes, your Honour.

HER HONOUR: Do you have anything to say about that by way of assistance to the Court?

MS SLEETH: Your Honour, I have taken brief instructions this morning and it certainly was not the ambit of my brief to deal with the substantive matters. However, my client instructs me that for the interlocutory proceedings he only wishes a stay on the costs ordered by the courts below and that now that the land has been dealt with that he concedes that there is no need to stay the other orders made by the courts below.

HER HONOUR: Well, it would have no utility.

MS SLEETH: That is right, your Honour, yes.

HER HONOUR: I take it then there is no application this morning to amend the summons?

MS SLEETH: No, your Honour. My brief was to seek an adjournment so that he could receive legal advice in relation to the orders he would be seeking.

HER HONOUR: For how long was he seeking an adjournment?

MS SLEETH: Three weeks, your Honour. I have also been instructed this morning by my instructing solicitor that the second respondent wishes
an extension of time with which to file her draft notice of appeal and summary of argument for the special leave application.

HER HONOUR: Are you appearing for the second respondent or is she?

MS SLEETH: My instructing solicitor acts for both applicants and I am instructed to seek an adjournment on behalf of both applicants this morning, your Honour.

HER HONOUR: You are referring to Mr and Mrs Maher?

MS SLEETH: Yes, your Honour.

HER HONOUR: Yes. So you are referring to the applicants on the summons and the applicants in relation to special leave?

MS SLEETH: Yes, your Honour.

HER HONOUR: Yes. Yes, Mr Shepherd, what is your attitude to the adjournment application?

MR SHEPHERD: The application is opposed. The first applicant, Mr Dennis Maher, is a bankrupt, as appears from the affidavit of Mr Peter Pouki. My learned friend, with the greatest respect, does not take instructions from his trustee, nor does Mr Nelson. So the position with that application and the application for special leave is, in my submission, that they are stayed by operation of section 60(2) of the Bankruptcy Act. I have prepared a short outline which I have provided a copy of that to my learned friend. Only this morning was I provided with the alternative application which we understood would be an application, in effect, to abandon the summons as it presently stood and to amend it to, in effect, seek an injunction restraining us dealing with the proceeds of the sale of the property.

HER HONOUR: Ms Sleeth appears to have indicated that that is not being sought now and all that is being sought is an adjournment in relation to the need to give instructions and obtain some legal advice in relation to this matter and, no doubt, in relation to matters like section 60 of the Bankruptcy Act. There may be some utility in a short adjournment in relation to what is proposed, Mr Shepherd, particularly as the application for which you came prepared up until a very short while ago was one application, then you were put on notice of another application and now that appears to have been abandoned and there is this application for a short adjournment.

MR SHEPHERD: My instructions are to proceed, but if your Honour is against me on that point, I would contend that it should be a very short adjournment and that it be indicated perhaps on the return date that the applicants be ready to proceed. Of course, we raise the question of whether the first applicant can give instructions when, in fact, he is a bankrupt.

HER HONOUR: Yes. I dare say that Ms Sleeth has heard what you have said and I dare say some consideration will be given to section 60 of the Bankruptcy Act. The Court will be sitting in Canberra in the next two weeks. I am very concerned that this adjournment be as short as possible. What I am inclined to do, Mr Shepherd, is to adjourn it to the first possible sitting day after the Court has been in Canberra. Are you making an application for costs today?

MR SHEPHERD: Yes, your Honour.

HER HONOUR: So I would adjourn the matter on that basis with costs. That is my present inclination.

MR SHEPHERD: If the Court pleases.

HER HONOUR: Do you have anything further you wish to say, Ms Sleeth?

MS SLEETH: Well, your Honour, in relation to costs, I am instructed to submit that the respondent was put on notice that the adjournment application would be made today. Consent orders were drafted and it was requested that a short indulgence of three weeks be granted and in the situation where the bank has not agreed to that adjournment, I am instructed to submit that their costs should be borne by themselves today.

HER HONOUR: The negotiations in relation to a possible consent adjournment seem to have been subsequently overtaken by a new strategy, which was to apply to amend the summons in order to seek injunctive relief, but that is now withdrawn, as I understand it.

MS SLEETH: Yes, your Honour, but it was clear that my client had been an applicant in person up until Monday of this week when he instructed his solicitor and sought a three-week adjournment.

HER HONOUR: Yes. Thank you, Ms Sleeth.

The order will be, the matter be adjourned to 9.30 am on 7 October 2008 and adjourned with costs.

AT 9.41 AM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 7 OCTOBER 2008