Elders Trustee & Executor Co. Pty Ltd v E.G. Reeves Pty Ltd & Ors [1987] FCA 604

JUDGMENT No. 04/81. Nor FOR DISTRIBUTION

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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G. 419 of 1986

GENERAL DIVISION

BETWEEN: ELDERS TRUSTEE AND EXECUTOR COMPANY PTY LIMITED Applicant AND: E.G. REEVES PTY. LTD

First Respondent AND: EDWARD GEORGE REEVES Second Respondent

AND: DAPHNE JOAN REEVES

Third Respondent

JUDGE: GUMMOW J. DATE: 3 November 1987

Reasons for Judgment

On 29 September 1987 I delivered reasons for judgment in this matter. No formal orders were made. In those reasons I indicated that the applicant should fail and that the first respondent should succeed on the cross-claim. I stood the Matter over to enable quantification of the sum payable on the

cross—clain.

At the trial, on the 7th day, 24 March 1987, senior counsel for the parties had informed the Court (Transcript

p-p. 618-619) that they were agreed that there would p

issue between them as to the amount owing on the cross-claim. The cross-claim pleaded failure by the Applicant, Elders Trustee and Executor Company Pty. Ltd. ("Elders"), to pay E.G. Reeves Pty. Ltd. ("the first respondent") the principal sum of $490,000 secured by second mortgage from Elders to the first respondent on the "Booka" property. It also alleged that there had been a failure to pay certain interest on that principal

sum.

The reasons for judgment delivered on 29 September

1987 proceeded on the footing I have described.

Accordingly, as I have said, the matter was stood over for what should have been a simple arithmetical calculation. However, when the matter was next before the Court on 30 September and 1 October 1987 the parties informed the Court that senior counsel had both been in error in what they had said on 24 March 1987. It now appeared there was indeed an area of dispute between the parties as to the calculation of the monies due and owing and unpaid under the second mortgage. Further, it was now said that time was necessary in order to attempt a resolution of that dispute on the footing that if the sum could not be agreed between the parties it would be necessary for the first respondent to seek to re-open its case on its cross-claim and for the parties to obtain a curial determination as to the sum in question. The matter was further mentioned before the Court on 16, 27 and 28 October and

it is now stood over to today, 3 November 1987.

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I should also mention that there appear still to be on foot certain proceedings between the first respondent and Elders in the Supreme Court of New South Wales. I have now been informed from the bar table that in one or more of those proceedings there arise questions touching the quantification

of the claim under the second mortgage.

The proceedings in this Court were commenced on 30 September 1986. On 9 October 1986, a Judge of this Court made

the following orders:-

(1) Order that the first respondent E.G. Reeves Pty. Ltd. be restrained until further order from proceeding further in the Supreme Court of New South Wales in Action numbered 1078 of 1986 commenced by the First Respondent

herein ... (8) The Applicant pay to the ANZ Banking

Corporation, Martin Plaza the sum of $484,000 to be held in interest bearing

deposit in the joint names of Warren Walter Madgwick the Solicitor for the Applicant and Patrick Lawrence Campbell Solicitor for the Respondent pending final determination of the proceedings herein.

(9) Costs of this application to be reserved.

The Court is now asked to make orders implementing the reasons for judgment delivered on 29 September 1987 by dismissing the application. The parties also join in seeking further orders and directions dealing with the monies claimed on the cross-claim. It is not clear that these further claims

will in truth be part of the matter (including the cross-claim

4.

in the accrued jurisdiction) presently before the Court.

determination of this question requires production of draft

amended pleadings.

directions made today.

In addition, the Court is asked to note the following

agreement between the parties:-

(a)

(b)

(c)

(d)

The applicant will within seven (7) days pay to the first respondent the sum of $400,000 from the joint account in the names of the respective solicitors for the parties established pursuant to para 8 of the Short Minutes of Orders made 9 October 1986.

Subject to payment of the said sum, the respondents will consent to a stay of execution of the judgment entered upon the cross-claim until determination of any appeal brought by the applicant.

The funds remaining in the said joint account after payment of the said sum shall remain therein on the present terms and conditions.

In the event that any appeal brought by the applicant is successful, the second respondent undertakes to procure repayment to the applicant of the said sum of $400,000. Note that this undertaking is given also to the Court.

This I will provide for in the orders and

5.

(e) The applicant undertakes to institute any appeal within the period provided by the Rules (or such further time as the Court may on application allow) and to prosecute any such appeal expeditiously.

The parties also seek to have all questions of costs of the application and the cross-claim stood over to 18

November 1987 at 9.30am before me.

I now proceed as follows.

The Court notes the agreement between the parties in the terms set out above and accepts the undertaking in paragraph (d) thereof. The Court makes the orders and

directions set out hereunder:

(1) The application 1s dismissed.

(2) Direct the First Respondent to provide the Applicant on or before 10 November 1987 with draft amended cross-claim including claims for monies allegedly due to it pursuant to securities between it and the Applicant other than the mortgage dated 22 August 1984 between the Applicant as mortgagor and the First Respondent as mortgagee (being part of Exhibit V) and to include such additional

prayers for relief as it may be advised.

(3)

(4)

(5)

Direct the Applicant to provide the First Respondent on or before 17 November 1987 with draft defence to the said draft amended

cross-clain.

Direct that all questions of costs of the application and of the cross-claim, and that further proceedings on the cross-claim, be stood over before me at 9.30am on 18

November 1987.

Direct that exhibits may be returned.

I certify that this and the preceding five (5) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice

Gummow.

Associate: Mate Mow .

Date: 3 November 1987

Counsel and Solicitors for M.J. Finane Q.C. the Applicant. with G. Inatey and

R.N. Talbot instructed by Madgwicks, solicitors.

Counsel and Solicitors for the Respondents:

Date of Judgment:

W.H. Nicholas Q.C. with B.R. McClintock instructed by Messrs Cutler Hughes and Harris.

3 November 1987