Official Trustee in Bankruptcy v Udowenko

IN THE SUPREME COURT REVISED OF NEW SOUTH WALES EQUITY DIVISION

3999/04 - THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE PROPERTY OF MICHAEL & HELEN UDOWENKO v VALENTYN UDOWENKO & ANOR

1 These are proceedings in which the plaintiff seeks orders under s.66G of the Conveyancing Act 1919 in respect of property of which the plaintiff and the first defendant, Mr Valentyn Udowenko, are co-owners. The second defendant, Mr Volodymyr Udowenko, yesterday filed a notice of motion seeking various relief. He said that he had hoped, when he filed it, that it might be heard today when the adjourned hearing of the plaintiff's summons came back before me. The plaintiff is content for it to be dealt with now. I therefore directed, when the matter came before me today, that the notice of motion be heard instanter rather than on its specified return date. 2 The applicant under the notice of motion, Mr Volodymyr Udowenko, addressed me briefly and also confirmed that, so far as the matters raised by the notice of motion are concerned, his contentions are really contained in the lengthy affidavit sworn by him on 20 September 2004 and filed with the notice of motion. The affidavit contains some factual material of an evidentiary kind including, I might say, a good deal that, if subjected to scrutiny, would be found to be not relevant. At the same time, it goes beyond the normal function of an affidavit by incorporating matter in the nature of argument and submission which I have regarded in that light. There is also, I might say, matter of argument and submission in the notice of motion itself. I make no criticism of the inclusion of such matters in the affidavit and notice of motion. I merely say that the submissions in support of the applications in the notice of motion may be gathered from those sources. 3 Items 1, 3 and 5 of the notice of motion seek certain orders referable to an Imperial Act, the short title of which is the British Law Ascertainment Act 1859. 4 Item 1 of the notice of motion asks the court to proceed under that Act in respect of a number of proceedings, including not only the present proceedings 3999/04 but also 3813/90 in this court, 3483/91 in this court, 40242/92 in the Court of Appeal, 259/92 in the Wyong Local Court, 19/00 in the Newcastle District Court and various proceedings in the Federal Court of Australia. Item 3 in the notice of motion, by referring to the Conveyancing Act, can only have in contemplation the present proceedings in which the plaintiff seeks orders under s.66G of that Act. Item 5 refers to various sections of the Crimes Act 1900 and does not seem to identify any proceeding. 5 The opening words of s 1 of the British Law Ascertainment Act 1859 (Imp) are: "If in any action depending in any court within Her Majesty's Dominions, it shall be the opinion of such court, that it is necessary or expedient for the proper disposal of such action to ascertain the law applicable to the facts of the case as administered in any other part of Her Majesty's dominions on any point on which the law of such other part of Her Majesty's dominions is different from that in which the court is situate, it shall be competent to the court in which such action may depend …"

In view of the way in which that section is cast (and assuming that the Act applies), it would be open to me, as the judge trying 3999/04 in this court, to have regard only to that proceeding to the extent that I might consider making any order under the British Law Ascertainment Act 1859. Items 1, 3 and 5 of the notice of motion must, therefore, be regarded as otiose to the extent that they invite the judge hearing 3999/04 to deal with anything other than that proceeding. 6 The Act of 1859 created machinery by which a court in one part of Her Majesty's dominions might, by case stated, have a matter before it remitted to and determined by a court in another part of Her Majesty's dominions. The jurisdiction was exercisable where the court hearing the particular proceeding was of the view that it was necessary or expedient for the proper disposal of that proceeding to ascertain the law applicable to the facts of the case as administered in the other part of Her Majesty's dominions on any point on which the law of the other part of her Majesty's dominions was different from that in which the proceeding was being tried. 7 This part of the notice of motion as it affects proceedings 3999/04 in this court can be dealt with quite simply by saying that nothing has been put before the Court to show any need whatsoever for it to know and apply in a case arising under s.66G of the Conveyancing Act anything other than the law in force in New South Wales. The court is quite able to ascertain that law for itself. The need for which the Act of 1859 was intended to cater simply does not arise in proceedings 3999/04. 8 It follows that, even if I had jurisdiction to make an order under the Imperial Act of 1859 (which I do not consider I have, in light of s.8 of the Imperial Acts Application Act 1969 of New South Wales and the present status of Australia and New South Wales under the Australia Acts enacted by the United Kingdom and Commonwealth Parliaments in 1986 at the request of the States), no need has been demonstrated for the making of such an order. 9 Item 2 of the notice of motion seeks an order or direction which I interpret to be a direction that there be given, in respect of proceedings 3999/04, notice to the Attorneys-General of the Commonwealth, the States and the Territories pursuant to s.78B of the Judiciary Act 1903 (Cth). That section applies where a cause pending in one of several identified courts, including a court of a State, "involves a matter arising under the Constitution or involving its interpretation". 10 I do not regard anything in these straightforward proceedings under s.66G of the Conveyancing Act as entailing "a matter arising under the Constitution or involving its interpretation". In saying that, I do not lose sight at all of the various arguments referred to in the applicant's affidavit and notice of motion concerning the Treaty of Versailles, decisions of the High Court as to the status of the United Kingdom vis-à-vis Australia, some arguable lack of Australian sovereignty, the position of the Queen as Queen of the United Kingdom and Queen of Australia and related matters which have been thrown up from time to time and consistently rejected by courts: see Batten v Police [1998] SASC 6778, Joosse v ASIC [1998] HCA 77, Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302, Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383, McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation [2000] HCA 27, Matchett v Deputy Commissioner of Taxation [2000] NSWSC 975, Raby v AEC Electrics Pty Ltd [2001] QIRComm 68 and Sheppard v Commissioner of Taxation [2002] ACTSC 113. The proceedings under s.66G of the Conveyancing Act are proceedings to do with the title to and ownership of land in New South Wales. There is simply no even faintly plausible constitutional point raised. 11 Item 4 of the notice of motion, as I read it, seeks adjournment of the hearing of the s.66G summons. I shall return to that as a matter separate from the notice of motion. 12 Items 6 and 7 of the notice of motion seek orders altering or directing the alteration of the register kept by the Registrar-General under the Real Property Act 1900. The content of that register and procedures for its alteration are dealt with entirely by statute. The Registrar-General may be required by statute to recognise and give effect to orders in the nature of vesting orders made by courts but, of course, a vesting order or analogous order can only be made on cause shown. Generally speaking, a vesting order is made in the exercise of equitable jurisdiction so that the legal title to property can be made to correspond with the equitable ownership of it as found by a court of equity. Nothing in these s.66G proceedings at this stage presents any basis whatsoever for the making of a vesting order or an analogous order which, if regularly made, would cause the Registrar-General to come under an obligation to alter the register kept under the Real Property Act. 13 Items 8 and 9 of the notice of motion are concerned with costs and I shall come back to them in a wider context independently of the notice of motion. 14 Item 10 of the notice of motion seeks an order that the plaintiff's counsel, Mr Marshall, be "permanently stood down from these proceedings". I dealt with that application when it was raised orally at an earlier stage this morning. The applicant under the notice of motion complains that Mr Marshall acted for the petitioning creditor in the bankruptcy proceedings involving the applicant's parents the determination of which adversely to them led on to the situation where the Official Trustee in Bankruptcy became a co-owner of the land to which the Official Trustee's present s.66G claims relate. After sequestration orders had been made on the applications in which Mr Marshall was counsel for the petitioning creditor and the Official Trustee accordingly became the trustee of the bankrupt estates of the parents, Mr Marshall was separately retained by the Official Trustee to act in these s.66G proceedings. Such a course of action is not unusual or remarkable. It does not raise any prospect of conflict of interest or conflict between duty and interest of the kind which might cause a court of equity to seek to control the actions of a fiduciary. 15 Items 11 and 12 of the notice of motion are really no more than assertions that the principal relief in the s.66G proceedings should not be granted. That, of course, is a matter to be determined in due course when the hearing of the summons continues. Item 12 is cast as an application for an order that the summons be "set aside or struck out" but no basis for strike out in the conventional sense (or any other sense) could conceivably be said to have been shown. 16 It follows from what I have said that the claims in items 1, 2, 3, 5, 6, 7, 10, 11 and 12 of the notice of motion cannot be sustained. I order that they be dismissed. 17 That leaves the claims in items 4, 8 and 9. As I have said, I will deal with the matters of further adjournment of the summons and costs separately from and outside the notice of motion.

Last Modified: 09/28/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.