a> Saez Aeneiac! Kagishror " NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G345 of 1985 weve vew GENERAL DIVISTON BETWEEN: MARY MORTON Applicant DONALD ROSS BLACK Respondent 7 August 1986 EX TEMPORE REASONS FOR JUDGMENT BURCHETT J. This is an application for ex parte relief made by Mrs Morton and Mr Wiasak. I have previously dealt with an application for interlocutory relief made by Mrs Morton in the closing stages of her part heard case against Mr Black. In that case it was intended that Mr Wiasak, who is Mrs Morton's_ son, would give evidence, and it is clear that he was aware of the proceedings. The evidence before me indicated that he had played an active part in the negotiations and transactions with which those proceedings were concerned, and had either provided, or played a significant role in the provision of, a sum of $95,000 or thereabouts. The proceedings concerned negotiations, a document purporting to be a contract of purchase, and a document purporting to be a mortgage, all relating to land. There had been a caveat lodged on behalf of Mrs Morton in order to prevent a threatened mortgagee's sale by Mr Black. The caveat had, prior to the matter coming before me, been ordered to be removed by the Supreme Court of New South Wales. Indeed the judgment of Mr Justice Young, which was affirmed on appeal by the Court of Appeal Division of the Supreme Court of New South Wales, was referred to in the proceedings before me. Since those proceedings were adjourned part heard to a date in November, Mrs Morton and her son, Mr Wiasak, have lodged a further caveat or caveats, and proceedings have been launched in the Supreme Court on behalf of Mr Black for the removal of the caveat or caveats and for contempt of court in relation to their lodgment. I am now asked, those proceedings being due to be heard tomorrow, to grant urgent ex parte relief in order to prevent the matters proceeding in the Supreme Court. Mr Wiasak has also lodged a notice of motion, which is due to be heard in a couple of weeks time, to be joined as a party to the proceedings in this Court, which seek relief under the Trade Practices Act and also on the basis of various other allegations related to the respect of transactions in , which reliance is placed upon the accrued jurisdiction of the court. Apart from the matters I have mentioned, it does not us corey, ft =o. een tae Te ' ae _) 8 seem to me that there is anything different about the situation with which I am now confronted from the situation with which the Court was confronted at the time the principal proceedings in this Court were adjourned part heard. At that time, when of course the respondent, Mr Black, was also before me, detailed consideration was given to the question whether some interlocutory relief should be granted, and indeed partial restraint upon his power of sale was in fact accepted by Mr Black on that occasion. I refused to make further interlocutory orders which were sought on behalf of Mrs Morton. At that time I had well in mind the payment of the sum of money which was procured to be paid and which Mr Wiasak says was paid by him. Indeed the evidence which Mrs Morton had then given to me indicated that this sum had been wholly or substantially paid by her son. The proceedings at that stage were in her name only but the consequences of the payment were involved in so far as the proceedings were brought on the footing that she had procured by arrangement with her son the payment of the sum. Ido not think the considerations which had to be weighed are materially affected by the presence before the court now of Mr Wiasak, who previously appears to have been prepared to have his interests watched over by his mother. I do not think his appearing now to put personally what in substance he put before by proxy makes the case for relief any different. He has, (Det oermore as care > as I have said, been aware of the proceedings and, it is a fair inference, involved in the giving of instructions in them. The particulars supplied in the amended statement of claim make that clear. I do not think any ex parte order designed to enable the applicants to retain the benefit of the caveat is, in all the circumstances, appropriate. I consider that the question whether the lodgment of that caveat constitutes a contempt in relation to the order of the Supreme Court is clearly a matter that it is not appropriate this court should intrude upon. As the removal of the fresh caveats will merely return the situation to the condition which obtained at the-time of the interlocutory relief which I did grant, I cannot see that the prospect of that removal would justify me now making an ex parte order upon evidence which raises no new ground for the grant of a restraint upon the exercise by the mortgagee of his rights under the mortgage. Accordingly, I refuse the ex parte relief which is sought. I would just like to add once again what I have already said, both on the last occasion and in argument, that I urge the applicants to obtain legal advice on problems the legal aspects of which, it seems clear to me, they are quite unable to unravel for themselves or even to understand. The Court stands ready to hear applications which are presented with or without legal aid, Fa ™ fr t = 5 " vy forges ot We " ote Se ' Sa Sa eaaaiey and Xn ae v ee on rend aoe ten re Ore Cn sas D - ok - Vrorere = but the Court can only act on what is presented to it. If parties who do not understand the issues present applications, there is the gravest danger that the real issues will never he presented at all, and there is also of course the danger that substantial sums of money will be thrown away upon wholly misconceived issues. I reiterate what I said at the conclusion of the previous hearing that these remarks do not imply any view one way or the other about the issues concerning which I have not yet heard all the evidence. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. C. Arc lowe ——————— Associate Dated: 7 August 1986 oT oe — re yr ao oe neo fete aa "QQ renal beealear of, \ NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G345 of 1985 GENERAL DIVISION BETWEEN : MARY_ MORTON Applicant DONALD ROSS BLACK Respondent 7 August 1986 EX TEMPORE REASONS FOR JUDGMENT BURCHETT J. This is an application for ex parte relief made by Mrs Morton and Mr Wiasak. I have previously dealt with an application for interlocutory relief made by Mrs Morton in the closing stages of her part heard case against Mr Black. In that case it was intended that Mr Wiasak, who is Mrs Morton's son, would give evidence, and it is clear that he was aware of the proceedings. The evidence before me indicated that he had played an active part in the negotiations and transactions with which those proceedings were concerned, and had either provided, or played a significant role in the provision of, a sum of $95,000 or thereabouts. The proceedings concerned negotiations, a document purporting to be a contract of purchase, and a document Be pee gee yar soe tT .5 a purporting to be a mortgage, ail relating to land. There had been a caveat lodged on behalf of Mrs Morton in order to prevent a threatened mortgagee's sale by Mr Black. The caveat had, prior to the matter coming before me, been ordered to be removed by the Supreme Court of New South Wales. Indeed the judgment of Mr Justice Young, which was affirmed on appeal by the Court of Appeal Division of the Supreme Court of New South Wales, was referred to in the proceedings before me. Since those proceedings were adjourned part heard to a date in November, Mrs Morton and her son, Mr Wiasak, have lodged a further caveat or caveats, and proceedings have been launched in the Supreme Court on behalf of Mr Black for the removal of the caveat or caveats and for contempt of court in relation to their lodgment. I am now asked, those proceedings being due to be heard tomorrow, to grant urgent ex parte relief in order to prevent the matters proceeding in the Supreme Court. Mr Wiasak has aiso lodged a notice of motion, which is due to be heard in a couple of weeks time, to be joined as a party to the proceedings in this Court, which seek relief under the Trade Practices Act and also on the basis of . various other allegations related to the transactions shee ch reliance is placed upon the accrued jurisdiction of the court. Apart from the matters I have mentioned, it does not i eeneicaia wm geen ee eee rr we ws on) ay 7 on — seem to me that there is anything different about the situation with which I am now confronted from the situation with which the Court was confronted at the time the principal proceedings in this Court were adjourned part heard. At that time, when of course the respondent, Mr Black, was also before me, detailed consideration was given to the question whether some interlocutory relief should be granted, and indeed partial restraint upon his power of sale was in fact accepted by Mr Black on that occasion. I refused to make further interlocutory orders which were sought on behalf of Mrs Morton. At that time I had well in mind the payment of the sum of money which was procured to be paid and which Mr Wiasak says was paid by him. Indeed the evidence which Mrs Morton had then given to me indicated that this sum had been wholly or substantially paid by her son. The proceedings at that stage were in her name only but the consequences of the payment were invoived in so far as the proceedings were brought on the footing that she had procured by arrangement with her son the payment of the sum. Ido not think the considerations which had to be weighed are materially affected by the presence before the court now of Mr Wiasak, who previously appears to have been prepared to have his interests watched over by his mother. I do not think his appearing now to put personally what in substance he put before by proxy makes the case for relief any different. He has, rr aoe gain > se rears Mp ere peso Tero repr Sahai aeatiemetearer tenaddtat aed = - , yp as I have said, been aware of the proceedings and, it is a fair inference, involved in the giving of instructions in then. The Particulars supplied in the amended statement of claim make that clear. I do not think any ex parte order designed to enable the applicants to retain the benefit of the caveat is, in all the circumstances, appropriate. I consider that the question whether the lodgment of that caveat constitutes a contempt in relation to the order of the Supreme Court is clearly a matter that it is not appropriate this court should intrude upon. As the removal of the fresh caveats will merely return the situation to the condition which obtained at the' time of the interlocutory relief which I did grant, I cannot see that the prospect of that removal would justify me now making an ex parte order upon evidence which raises no new ground for the grant of a restraint upon the exercise by the mortgagee of his rights under the mortgage. Accordingly, I refuse the ex parte relief which is sought. I would just like to add once again what I have already said, both on the last occasion and in argument, that I urge the applicants to obtain legal advice on problems the legal aspects of which, it seems clear to me, they are quite unable to unravel for themselves or even to understand. The Court stands ready to hear applications which are presented with or without legal aid, oe ere ne ne oe aE — T man : Ts but the Court can only act on what is presented to it. If parties who do not understand the issues present applications, there is the gravest danger that the real issues will never be presented at all, and there is also of course the danger that substantial sums of money will be thrown away upon wholly misconceived issues. I reiterate what I said at the conclusion of the previous hearing that these remarks do not imply any view one way or the other about the issues concerning which I have not yet heard all the evidence. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. C. Maitlaw ——S= oO Associate Dated: 7 August 1986 Tey wee, st 7, ¢ mage eye oN