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