George v Fletcher

The third paragraph of the notice of motion filed on 29 July 2011 is struck out.
Save to the extent of the stay granted by the orders of 10 August 2011 the application made by notice of motion filed on 29 July 2011 is dismissed.
The costs of each of the respondents in respect of that application be those respective respondents' costs in the appeal in any event.
The interlocutory application filed by the second and third respondents on 12 August 2011 is adjourned to a date to be fixed.
Liberty to apply to the second and third respondents to restore their application to the list on seven (7) days notice.
Costs in respect of the application by the second and third respondents are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT 1 On 10 August, I made orders in respect of that part of Ms George's application for a stay of the orders of the Federal Magistrates Court as concerned chattels: see George v Fletcher (Trustee) [2011] FCA 952. I stood over so much of the application as related to the Moggill property to today. 2 The principle to be applied in relation to the question of whether to stay the judgment of the Federal Magistrates Court under appeal to this Court or, for that matter, a judgment given in the original jurisdiction of this Court, is canvassed by me at paragraph 11 of those earlier reasons for judgment. I shall not repeat what I there stated. 3 The findings of the Federal Magistrate, insofar as they touch on the Moggill property, were, having regard to his Honour's reasons for judgment, based principally but, as the submissions today for the respondents emphasise, by no means exclusively on findings of credit. The findings of credit are prima facie matters peculiarly within the purview of a trial judge. 4 It is put that there was a denial of procedural fairness in the course of the trial. It is not immediately apparent to me that this aspect of the appeal has such a compelling prospect of success as to intrude upon other considerations which loom large in respect of the ability of respondents to enjoy the fruits of their judgment. These lie principally in the existence of a registered mortgage in favour of the National Australia Bank, the fourth respondent, over the Moggill property. The integrity of that mortgage is not in any way the subject of contention in the appeal. Nor, as between the trustee and the third respondent, Dr Ironside and his company, Dr Peter Ironside Pty Ltd, the second respondent, is there any question of an impeachment of heads of agreement between them and Ms George. Dr Ironside and his interests are left at the moment with the servicing of the loan which is secured by the mortgage from the National Australia Bank. That is an enduring burden whilst the property remains unsold. The question of the amount, if any, of a surplus over and above the value is at present unascertained. However, I am informed that the amount owing to the National Australia Bank is $790,665 plus some interest. The trustee has a valuation, one taken after the effect, if any, of the Brisbane floods, which puts the value on the property of $650,000. Irrespective of whether Ms George does or does not succeed in the appeal, the secured interest is one which will remain in place and she would take, in whatever capacity, the property subject to the burden of that secured interest. 5 This case is one which has been unresolved for a great length of time. Over the course of that time the second and third respondents, in one way or another, have had the burden of servicing the mortgage. Whilst it might be said that the National Australia Bank's interests are, in the short term, protected by that disposition to continue to service the mortgage, it is nonetheless an unresolved burden for the Ironside interests and also for the bank. That is to say nothing of the interests of the unsecured creditors in the estate, in whatever surplus exists, unlikely though it presently seems that there might be, once the property of the bankrupt is ascertained. The property of the bankrupt, in terms of the judgment below of course, includes the Moggill property. 6 I am not persuaded in this instance that there is, in terms of the authority which I canvass in paragraph 11 of my earlier judgment, occasion for the granting of a stay. The application is refused. 7 Insofar as the application also sought leave to appeal interlocutory decisions, it seems to me that any interlocutory procedural judgments would be encompassed, in an ability to appeal the same, in the final judgment. 8 Insofar as the notice of motion also makes reference to Justice Reeves' handling of this matter, it is an impertinence and I strike out that paragraph from the notice of motion. 9 The order that I make in respect of costs is that the costs of each of the respondents be those respective respondents' costs in the appeal in any event. Costs are otherwise reserved. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

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