Parras Holdings Pty Ltd (ACN 003 546 807) & Ors v Commonwealth Bank of Australia (ACN 123 123 124) [1998] FCA 1309 (14 October 1998)

Last Updated: 21 October 1998

CATEGORY: NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 664 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN:	PARRAS HOLDINGS PTY LIMITED (ACN 003 546 807) FIRST APPELLANT FULANGA PTY LIMITED (ACN 001 796 354) SECOND APPELLANT PHONTOS INVESTMENTS PTY LIMITED (ACN 000 870 762) THIRD APPELLANT ILANZ PTY LIMITED (ACN 001 885 392) FOURTH APPELLANT P & E PHONTOS PTY LIMITED (ACN 000 870 771) FIFTH APPELLANT DOVIZO PTY LIMITED (ACN 003 932 269) SIXTH APPELLANT PETER PHONTOS SEVENTH APPELLANT ELLI PHONTOS EIGHTH APPELLANT HARRY PHILLIP COSTAS NINTH APPELLANT MARY COSTAS TENTH APPELLANT MICHAEL PHONTOS ELEVENTH APPELLANT SIBARD PTY LIMITED (ACN 003 575 291) TWELFTH APPELLANT SHIMCOST PTY LIMITED (ACN 003 355 048) THIRTEENTH APPELLANT SPOTEK PTY LIMITED (ACN 050 325 212) FOURTEENTH APPELLANT
AND:	COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) RESPONDENT
JUDGES:	SPENDER, HILL AND MERKEL JJ
DATE OF ORDER:	14 OCTOBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an adjournment be refused with costs.

THE COURT DIRECTS THAT:

1. Written submissions on behalf of the appellants be filed by 4.00 pm five days before the first day of the hearing of the appeal.

2. Written submissions on behalf of the respondent be filed and served by 4.00 pm Friday 30 October 1998.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 664 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN:	PARRAS HOLDINGS PTY LIMITED (ACN 003 546 807) FIRST APPELLANT FULANGA PTY LIMITED (ACN 001 796 354) SECOND APPELLANT PHONTOS INVESTMENTS PTY LIMITED (ACN 000 870 762) THIRD APPELLANT ILANZ PTY LIMITED (ACN 001 885 392) FOURTH APPELLANT P & E PHONTOS PTY LIMITED (ACN 000 870 771) FIFTH APPELLANT DOVIZO PTY LIMITED (ACN 003 932 269) SIXTH APPELLANT PETER PHONTOS SEVENTH APPELLANT ELLI PHONTOS EIGHTH APPELLANT HARRY PHILLIP COSTAS NINTH APPELLANT MARY COSTAS TENTH APPELLANT MICHAEL PHONTOS ELEVENTH APPELLANT SIBARD PTY LIMITED (ACN 003 575 291) TWELFTH APPELLANT SHIMCOST PTY LIMITED (ACN 003 355 048) THIRTEENTH APPELLANT SPOTEK PTY LIMITED (ACN 050 325 212) FOURTEENTH APPELLANT
AND:	COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) RESPONDENT
JUDGES:	SPENDER, HILL AND MERKEL JJ
DATE:	14 OCTOBER 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

SPENDER J: This is an application by the appellants that the appeal appointed to be heard over five days commencing on 2 November 1998 be adjourned to the February 1999 sittings of the Full Court in Sydney. The application is opposed by the respondent. I indicate that on a consideration of all the material and the helpful submissions we have heard from counsel this morning, I would not grant the adjournment.

The basis for the application is to be found in the affidavit of Philip Thomas Robinson, particularly paragraphs 17, 18, 19, 21 and 22. The core of that is found in paragraph 19 where Mr Robinson says:

"I am informed by Mr Michael Phontos and verily believe that the Appellants are organising their resources but that it will take them further time. I have been informed by Mr Costas, the Ninth Appellant and verily believe that he is likely to be signing a sizeable building contract in the next month and, on that basis, it is anticipated that the resources will be in place at the time of the next Full Court Call Over in December 1998."

Of importance on the application for the adjournment is the information that was given by the parties at the callover after which the matter was set down for 2 November 1998. Of particular importance are paragraphs 3, 5 and 7 of the document put before the Court on that occasion. In paragraph 3 the parties stated that the matter was ready to proceed. Paragraph 5 acknowledged in respect of the degree of urgency in listing the matter, that it was an old matter. Paragraphs 5(d), (e) and (f) are as follows:

"(d) A stay of enforcement was granted over family homes and other properties, upon enforcement of money judgments and commencement of taxation of costs on 30 June 1998. The stay expires on 30 November 1998.

(e) A number of Appellants have been unable trade (sic) properly since 1992.

(f) The judgment debt significantly exceeds the value of the securities held by the Respondent Bank, and the Respondent Bank is not aware of any additional assets that will be available for the satisfaction of the judgment debt."

Paragraph 7 indicated that Mr D.F. Jackson QC with Mr C.J. Leggatt of counsel had been briefed to appear for the appellants.

In my view, there are a number of telling circumstances against the grant of the adjournment. First and most importantly, the reference in paragraph 19 of Mr Robinson's affidavit to the financial difficulties of the appellants gives me no confidence that those stretched financial resources are likely to be improved by any adjournment. The nature of the building contract referred to in paragraph 19, the cashflow and so on and details of the expected improvement in the financial capacity of the appellants to prosecute the appeal do not appear from the material filed on the application.

Secondly, much of the work in relation to the appeal has been done. The appeal books are available and Mr Robinson deposes that solicitors have been working tirelessly and that extensive written submissions have been prepared. There has been no satisfactory explanation, it seems to me, as to why the matter cannot proceed and I do not think that an injustice will be done by declining to grant the application for an adjournment. While I accept that it is not the ideal or the preferred situation, nothing, it seems to me, has been put before the Court to show that either Mr Robinson or Mr Phontos would, if it came to that, be unable adequately to put the appellants' case on the appeal.

A further and important consideration is that an adjournment would involve the foregoing of interest of $180,000, on my calculation, by the respondent if the appeal is ultimately unsuccessful. That is to say, further delay could work a significant injustice to the respondent.

On the whole of the material, and bearing in mind those particular considerations to which I have referred, in my opinion the application for an adjournment should be refused. I would disposed to direct that written submissions on behalf of the appellants be filed and served five days before the first day of the hearing of the appeal and the written submissions by the respondent be filed and served by 4.00 pm on Friday, immediately preceding the commencement of the hearing of the appeal on 2 November.

The application should be refused with costs.

HILL J: I agree with the reasons which Spender J has given and the orders which his Honour proposes. I should say that it is a relevant matter to note that no offer was made on the part of the appellants to have the stay released or to do anything which might affect such prejudice as there could be to the respondent if the appeal were not to proceed.

There may be some injustice to the appellants if an adjournment is not granted and I can see in particular advantage in having senior counsel appear as against perhaps the appeal not being prosecuted in that way. But such injustice as there may be to the appellants has also to be balanced against the prejudice to the respondent as well as such problems as may exist for the Court. I should say that the latter matter has not troubled me as much as the question that injustice clearly arises to the respondent if an adjournment is granted.

In the circumstances, I do not think that it is in the interests of justice overall that an adjournment should be granted.

MERKEL J: I agree that the adjournment should not be granted for the reasons given by Spender and Hill JJ and I also agree with the proposed directions.

SPENDER J: The Court directs that the written submissions on behalf of the appellants be filed and served five days before the first day of the hearing of the appeal, 2 November 1998 and the respondent's submissions be filed and served by 4.00 pm on Friday, 30 October 1998.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Hill and Merkel.

Associate:

Dated: 14 October 1998

Counsel for the Appellants:	Mr A J Sullivan QC
Solicitor for the Appellants:	Phontos & Associates
Counsel for the Respondent:	Mr R G Forster SC and Mr N Manousardis
Solicitor for the Respondent:	L E Taylor
Date of Hearing:	14 October 1998
Date of Judgment:	14 October 1998