SMITH v AUSTRALIAN AND NEW ZEALAND BANKING GROUP LTD and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER JA 24 November 1997 [1997] NSWCA 289 Meagher JA This is a notice of motion bought by Mr Thomas Edwin Curtis Smith in respect of litigation which he has brought against the Australian and New Zealand Banking Group Ltd and others. The principle litigation was eventually decided by the Court of Appeal, and the bench consisted of Priestley, Sheller and Powell JJA, on 21 November 1996. I shall not set out the full orders of the court but I do set out O3(ii) and O6. They are as follows: "3(ii) Thomas Edwin Curtis Smith has the benefit of ANZ's rights under the said Registered Charge in respect of the said amount of $1,325,000.00, and ANZ's remedies for enforcing payment thereof "6. Liberty to any party to apply to a judge of the Court with respect to the quantification of the said moneys, costs, charges, expenses and interest." Apparently pursuant to those passages of the Court of Appeal order, Mr Smith now brings a notice of motion in which he seeks a "declaration and/or order as to claims and amounts set out in a schedule here to fall within the terms of the said declarations 3(i) and 3(ii) and 06 ". The schedule to the notice of motion consists of four paragraphs and is as follows: "(a) ANZ Bank Guarantee fees totalling $87,229.06 charged to Thanyule Pty Ltd and Daly Smith (Management Services) Pty Ltd by ANZ in respect of the guarantees provided by ANZ for the third defendant. "(b) Legal costs assessed on the solicitor/client basis incurred by the plaintiff in the following matters - (i) ED 4058/94; Gi) ED 1913/95 (iii) CA 40392/95; HC S12 OR 1006; "(c) Legal fees incurred by ANZ Bank in proceedings No 1913/95 and debited to YDSI Pty Ltd as a secured debt subject to Mortgage Debenture registered No 43368. "(d) Capitalised periodical interest additional to the principal sum of $1,325,000.00." It is clear as can be that the amounts listed in the schedule do not come within the terms of the Court of Appeal O3(i) and Mr Neil QC, learned senior counsel for the claimant did not claim that they did. It is however claimed with some vigour that they come within the provisions of the O3(ii). Mr Street of senior counsel for the opponents claimed the contrary. Tam afraid I am convinced by what Mr Street said that none of the four items in the schedule come within O3(ii) and am also convinced that 06 of the Court of Appeal's orders does not progress the claimants entitlement to the order he seeks in the present motion. 2 UNREPORTED JUDGMENTS Merely by way of example if one looks at the first item in the schedule it is in the following terms. "ANZ bank guarantee fees, totalling $87,229.06 charged to Thanyule Pty and Daly Smith (Management Services) Pty Ltd by ANZ in respect of guarantees provided by ANZ for the third defendant." It is not clear whether anyone has paid the amount of $87,229.06. In particular it is not clear, that Mr Smith has done so. What is more to point is that Thanyule Pty Ltd and Daly Smith who are the alleged debtors in relation to these accounts are not parties in this litigation and do not seem to have anything to do with it. The amount has not been paid by and there is no liability that it should be paid by Thanyule Daly Smith International Pty Ltd the company in liquidation and the company referred to in the Court of Appeal orders. Likewise if one dissects each of the other three heads in the schedule one comes, perhaps reluctantly to the conclusion, 'that none of them are within the terms of the court of appeal orders. For those reasons I would suggest that the notice of motion be dismissed with costs because the declarations sought in para2 of that notice of motion manifestly have no validity.