Brothel Gate Day 17

1MR DEVRIES:

That matter of Cressy and Johnson is still

2

proceeding Your Honour and once more it appears that

3

Mr Johnson, the defendant, is not present.

4HIS HONOUR:

No.

5MR DEVRIES:

Your Honour, I am indebted to Your Honour for that

6

break.

I needed to clarify my instructions on my

7

submissions.

8

I would give you the reference for the disposal of the

9

Land Rover and that was at transcript 863 to 864.

Your Honour, I had indicated yesterday that

At the

10

bottom of 864, "How much did you dispose of the Land

11

Rover for?

12

disposed of for about $10,000."

13

page he refers to it being disposed of in September 08.

The Land Rover, I think the Land Rover was And at the top of the

14HIS HONOUR:

Yes.

15MR DEVRIES:

Whilst I'm backtracking, Your Honour, if I could

16

just draw Your Honour's attention to paragraphs – sorry,

17

p.233 to and following where my client's being

18

cross-examined and Mr Johnson puts to her at Line 29 of

19

233, "Ms Cressy, I put it to you that you and I and your

20

three children lived under the same roof of my premises I

21

rent in South Yarra, 45 Nicholson Street, from about June

22

2001 up till the first week of March 2003."

23

he repeats the question at the top of p.235.

24

the two boys and Illyana are living under that common

25

roof from June 2001 to June 2003.

26

under that same roof at any stage?"

27

the reference to – sorry, at p.235 - - -

28HIS HONOUR: 29

And, again, "You and I,

Did anyone else live And, I've now lost

I don't think that he ever put in contest that

they lived under the same roof.

30MR DEVRIES:

Yes.

31HIS HONOUR:

He accepted in cross-examination that while he

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77

DISCUSSION

1

disputed that there was a domestic relationship between

2

himself and Ms Cressy during that period, nevertheless, a

3

reasonable view may be held to the contrary.

4

interesting concession.

5MR DEVRIES:

There's an

It is, Your Honour and I'll be coming back to that

6

in a moment but he then goes on at p.235 Line 17 to say

7

that, "All of those persons who I've mentioned moved into

8

No. 2 Dorrington Street in March - - -

9HIS HONOUR:

Yes.

10MR DEVRIES:

- - - and lived till 7 March 2003.

11HIS HONOUR:

Well, that was his evidence too.

12MR DEVRIES:

Yes.

I hadn't covered the Dorrington Street

13

period specifically yesterday so that I'd – for the sake

14

of - - -

15HIS HONOUR:

Well, he said he moved out after a few months and

16

then took up residence at Bourke Street and you say, that

17

is not so, that in fact I should prefer your client's

18

evidence - - -

19MR DEVRIES:

Yes.

20HIS HONOUR:

- - - that he remained at Dorrington Street and

21

that's backed by a plethora of financial documents in

22

which he stated that to be his address.

23MR DEVRIES:

And the evidence that he called to that submission

24

doesn't support his evidence.

25

from - - -

26HIS HONOUR:

Ms Briggs.

27MR DEVRIES:

Ms Briggs.

The lady that he called

The best she could do is to say, "I

28

didn't see a bed there.

29

office."

30

I think she also conceded that people do use premises

31

such as that for - - -

1.LL:CW 17/02/09 2Cressy

It was all set-up like an

But, it was leased as a residential premise and

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78

DISCUSSION

1HIS HONOUR:

For offices.

2MR DEVRIES:

- - - offices if the landlord has no objection.

3

Your Honour, I was going to turn to the counterclaim and

4

I - - -

5HIS HONOUR: 6

Before you do so, the formula that you put to me

yesterday - - -

7MR DEVRIES:

Yes.

8HIS HONOUR:

- - - leaves the defendant with Gibson Street in

9

Torquay.

10MR DEVRIES:

Gibson Street, Torquay and - - -

11HIS HONOUR:

And Dorrington Street - - -

12MR DEVRIES:

Dorrington Street.

13HIS HONOUR:

- - - so far as that is not – so far as that still

14

remains in his hands.

15MR DEVRIES:

Yes.

16HIS HONOUR:

We don't really know much about the sale of that

17

or anything.

18MR DEVRIES:

No, we were led to believe that the mortgagee was

19

seeking possession by way of the other rent that

20

Mr Johnson, on resumption, gave evidence that is

21

consistent with him retaking possession but I'll be

22

seeking orders that that property be sold and also I'll be

23

seeking orders, Your Honour - - -

24HIS HONOUR:

Which property?

Dorrington Street?

25MR DEVRIES:

Dorrington Street.

26HIS HONOUR:

Well, why would you be seeking orders for the sale

27

of that if you're not seeking anything out of the equity

28

of it?

29MR DEVRIES:

Because, Your Honour, I'll be asking Your Honour

30

to make orders that preserve such moneys as Mr Johnson

31

will be getting, pending an application for costs.

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79

Your

DISCUSSION

1

Honour, with respect, I'm not presupposing Your Honour's

2

judgment or presuming that I – If I can say this, Your

3

Honour - - -

4HIS HONOUR:

So, you've just put the cart before the horse,

5

you're almost seeking a form of mandatory mareva relief to

6

protect your costs before we -

7MR DEVRIES:

Sorry.

I get to judgment.

Your Honour, it's not the costs that arise

8

out of Your Honour's judgment that I'm seeking to protect

9

but what I'm foreshadowing Your Honour, is that – I'll put

10

it in - irrespective of Your Honour's judgment, I'll still

11

be seeking costs for the time wasted during the course of

12

these proceedings by Mr Johnson.

13HIS HONOUR:

Well, I understand that.

14MR DEVRIES:

And, it's an – I can make – I can foreshadow that

15

without - - -

16HIS HONOUR:

Yes.

17MR DEVRIES:

- - - being presumptuous about what Your Honour's

18

going to do on - - -

19HIS HONOUR:

You say even if your client loses - - -

20MR DEVRIES:

I'll be still - - -

21HIS HONOUR:

- - - I dismiss her application, you've got a good

22

argument for costs - - -

23MR DEVRIES:

Yes.

24HIS HONOUR:

- - - based on the principals which are referred

25

in Lawless v. Wilatsis.

26MR DEVRIES:

That's correct, Your Honour.

I will at an

27

appropriate time, I will be submitting to Your Honour that

28

there are a number of days of hearing that were totally

29

wasted.

30

subpoenas to witnesses which subpoenas were set aside by

31

Your Honour, just one example, Your Honour.

For instance, the day that we spent on his

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80

Then there DISCUSSION

1

was the time wasted because he thrust at me that

2

counterclaim.

3HIS HONOUR:

Counterclaim, yes, I think you already have an

4

order for solicitor client costs for the last day of last

5

year, don't you?

6MR DEVRIES: 7

on so if you leave that aside there's some other - - -

8HIS HONOUR: 9 10

Yes, that was because he wasn't ready to continue

Well that – we will not leave that aside.

adds a little bit of weight to your application.

That You've

already got an order you want to protect.

11MR DEVRIES:

Yes.

Sorry Your Honour, yes.

12HIS HONOUR:

Yes.

13MR DEVRIES:

So, the concern is that if he gets any money out

14

of these properties it will be dissipated or put out of

15

reach and - - -

16HIS HONOUR:

Is there any evidence as to the status of

17

Dorrington Street?

The evidence is extraordinarily

18

sketchy.

19

has moved on that property and that's using that word

20

deliberately - - -

There have been suggestions that the mortgagee

21MR DEVRIES:

Yes.

22HIS HONOUR:

- - - in a very broad meaning.

23MR DEVRIES:

The only - - -

24HIS HONOUR:

I don't know whether it's gone further than serve

25

a notice on the defendant or whether it's put it up for

26

sale or what.

27MR DEVRIES:

There's not much evidence - - -

All that my instructors and I are aware of and of

28

course, the mortgagee is not giving us information because

29

we're not the registered proprietor - - -

30HIS HONOUR:

Yes.

31MR DEVRIES:

- - - but all we know is that the mortgagee has

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81

DISCUSSION

1

gone to the extent of issuing a writ seeking possession of

2

the property.

3

counterclaim that Your Honour - - -

That's the writ that has led to the

4HIS HONOUR:

Of course, yes, it's contested.

5MR DEVRIES:

And, excuse me Your Honour.

6

unaware of any further steps that the mortgagee - - -

7HIS HONOUR: 8

Beyond that, we're

Well, the mortgagee would have a lot of difficulty

selling without possession - - -

9MR DEVRIES: 10HIS HONOUR:

Yes. - - - so that I would have thought it's unlikely

11

selling.

You're quite right, that's the property in the

12

other proceeding - - -

13MR DEVRIES:

And - - -

14HIS HONOUR:

- - - to which the other proceeding relates.

So

15

that it's probably that it hasn't moved any further than

16

that.

17MR DEVRIES:

It may be that the mortgagee is trying to clarify

18

the possession position because pursuant to earlier orders

19

in these proceedings, my client was given possession of

20

those premises but after the write came to her notice, she

21

vacated those – or commenced to vacate the premises and

22

then before she had vacated the premises, Mr Johnson seems

23

to have retaken possession.

24HIS HONOUR: 25

Retaken possession.

That's – I understand that's

in the evidence.

26MR DEVRIES:

Yes.

27HIS HONOUR:

Sad, but there's no evidence apart from that as to

28

what's happening with the property at all - - -

29MR DEVRIES:

No, Your Honour.

30HIS HONOUR:

- - - to my recollection.

31MR DEVRIES:

And it's not possible for my instructors to find

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82

DISCUSSION

1

out unless - - -

2HIS HONOUR:

Yes.

3MR DEVRIES:

- - - the mortgagee or its legal representatives

4

were subpoenaed.

5

be likely to claim legal professional privilege because

6

their instructions – they can say what steps they've

7

taken - - -

8HIS HONOUR: 9

You can instruct them to say what steps have

occurred.

10MR DEVRIES: 11

I think its legal representatives would

But, they probably can't give evidence without the

mortgagee's agreement to - - -

12HIS HONOUR:

He was pretty unhelpful because in his own

13

evidence, the defendant says that, "As a result of

14

the" – this is at p.632, "As a result of the orders of

15

Justices Kavanagh and Hansen, I was evicted from

16

Dorrington Street, the locks were changed, I do not know

17

what is the position in relation to that property now."

18

He said, "There had been a contract to sell Dorrington

19

Street and Inverloch Street in January 2008 with

20

settlement due to March.

21

those sales."

I do not know what happened to

So, he's pretty unhelpful on that.

22MR DEVRIES:

Yes.

23HIS HONOUR:

You may be right.

Did those orders of Justices

24

Kavanagh and Hansen require him to vacate, did they not?

25

These are all matters we may need addressing on further

26

once I've come to my decision but – yes, it divert from

27

the principal relief that you're seeking.

28MR DEVRIES: 29

Mr Justice Cavanough, being Order 6.

30HIS HONOUR: 31

Yes, one of the orders is by His Honour, It's - - -

Yes, give the plaintiff vacant possession.

the plaintiff to remain in that possession.

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83

Permit

The DISCUSSION

1

plaintiff give Perpetual Trustees vacant possession of

2

Queen Street.

3

Justice Cavanough for that purpose made Order No.6.

4

Justice Hansen, the defendant give the plaintiff vacant

5

possession of the property at Dorrington Street and

6

Inverloch Drive.

7

sold out of court.

8MR DEVRIES: 9 10

Yes.

And obviously Then

Orders 3 and 4 that those properties be We've got orders already for sale.

The difficulty is that the Registrar of

Titles doesn't accept that those orders are sufficient to transfer the title to my client to - - -

11HIS HONOUR: 12

Yes, well that's occurred.

The best thing you can do in that respect is this.

This really goes more to ancillary relief.

13MR DEVRIES:

Yes, Your Honour.

14HIS HONOUR:

If and when I deliver judgment you'll need to

15

persuade me to make further orders.

16

Bar was whenever I got anything that touched on title or

17

on conveyancing I would have on elbow, an experienced

18

conveyancing solicitor, usually from my instructor, and

19

often that solicitor would have had contact with the

20

Registrar of Titles and I'd have formulated an order for

21

the judge.

22

orders.

23

My experience at the

And that means the judge makes effective

Now, what I suggest you do is after I've retired to

24

deliver my judgment in the event you're able to persuade

25

me to make further orders to make efficacious what

26

Justice Hansen ordered, if you could have that process

27

undertaken.

28MR DEVRIES: 29

Yes.

I had that – something along those lines in

mind.

30HIS HONOUR:

Yes.

31MR DEVRIES:

I hadn't turned my mind to the specific orders.

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84

DISCUSSION

1HIS HONOUR:

No, but you'll need to have probably a

2

conveyancing solicitor liaise with the registrar.

3

a technical area and the registrar is careful about these

4

matters and properly so.

5MR DEVRIES:

Yes.

6HIS HONOUR:

And I usually found as a barrister very few

It is

7

members of counsel really had much understanding as to

8

the technicalities of what had to take place.

9

certainly an expertise I haven't got, Your Honour.

10HIS HONOUR:

Well it's

No, very few do and I think that it's an area

11

where we do have experts in the profession and it's worth

12

getting hold of one.

13MR DEVRIES: 14

the mortgagee some concern.

15HIS HONOUR: 16

And it may be that those orders too are causing

Yes, I follow that.

Well I would have thought

that's a matter that you flag really for me.

17MR DEVRIES:

Yes.

18HIS HONOUR:

And which you would be well advised to have proper

19

orders available in the event that you are able to

20

persuade me that I should be making that type of order

21

which would be really a quasi Mareva type order.

22MR DEVRIES: 23

With respect, Your Honour, we may also have a

better idea of what's happened with our property.

24HIS HONOUR:

Well I agree with that.

25MR DEVRIES:

I must say we had assumed that between the end of

26

last year and the beginning of this year, things would

27

have been far more advanced than they are.

28HIS HONOUR: 29

properties, you were about to move to the counterclaim.

30MR DEVRIES: 31

Now, I think I disturbed you about those

Counterclaim, Your Honour.

And we'd left it

yesterday in respect to the other items that Mr Johnson

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85

DISCUSSION

1

claimed my client had taken from him.

2HIS HONOUR:

Yes, your client's Answer 255 really refers to his

3

to complaint that your client had failed to comply with

4

the other matter section of Justice Whelan's order.

5

he gave evidence he found further documents responding to

6

that order on Boxing Day.

7

evidence where your client has said well you can come and

8

get them, there are other documents in the rack.

9MR DEVRIES: 10HIS HONOUR:

And

And you've pointed out

Yes. What about the documents taken from Dorrington

11

Street and the modem which he says he found on Boxing

12

Day?

13MR DEVRIES:

Well my client - - -

14HIS HONOUR:

And that's really the subject of the claim for

15

trespass to goods that he's made in the counterclaim.

16MR DEVRIES:

I was going to move onto the modem in a moment,

17

Your Honour.

18

there are further documents, I don't know what they are.

19

There are shelves still there at Dorrington Street and

20

they've still got files in that you left there when you

21

vacated the premises", and he says, "I'm talking about

22

the records, all of the documents relating to the first

23

purchase of those four properties, the construction of

24

those three houses", and she says, "Yes".

25

"They were sitting on shelves in that computer room at

26

Point Cook, Dorrington Street", and she says, "If you say

27

so".

28HIS HONOUR:

But she makes it quite clear to him, "Yes,

And he says,

So she's effectively agreeing they're still there. I agree with that.

She's simply saying well if

29

they're there they're there.

30

though that respond to Justice Whelan's order.

31

say well that's an explanation in relation to that

1.LL:CW 17/02/09 2Cressy

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86

They're the documents And you

DISCUSSION

1

aspect.

What about the documents taken from Dorrington

2

Street when he said that overnight that they were

3

extracted while he was asleep, the documents and the

4

modem.

And he produced a green shopping bag.

5MR DEVRIES:

Well what I'm putting to Your Honour is that those

6

documents that he produced at the beginning of this year

7

are the documents that she said were at 2 Dorrington

8

Street and untouched by her.

9

nor did she ever take possession of those.

So she hasn't taken those So insofar as

10

his counterclaim refers to the documents which are 1A to

11

G - - -

12HIS HONOUR:

Yes.

13MR DEVRIES:

1A to G, "It's my submission that those are

14

already covered by that answer and they were never taken

15

by her".

16HIS HONOUR:

And he says - - -

But he says they were.

He gave evidence that this

17

year that the items in the green bag were taken and now

18

that evidence has not been put in issue.

19

his - - -

20MR DEVRIES: 21

He says that they were found by him in the mess at

Dorrington Street.

22HIS HONOUR:

I'll just check

And it's interesting that - - -

But he says that they were the goods that were

23

actually extracted from Dorrington Street.

24

find his evidence on this.

25

already given you 1A to K before that at p.1280 and

26

following, saying where he found three bags of documents

27

in a garage at 2 Dorrington Street which was discussed

28

before Whelan J on 12 March and he tendered those

29

documents.

30

bag.

31MR DEVRIES:

It's p.1292.

I'll just See, he's

Then at 1292 he moved to the green shopping

I will just access the transcript. And he says, Your Honour, in answer to a question

1.LL:CW 17/02/09 2Cressy

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87

DISCUSSION

1

from you, this is 1292 at line 15:

2

find those documents?"

3

2 Dorrington Street when I went for an inspection on

4

Boxing Day."

5HIS HONOUR:

"Now, where did you

"I found these in the garage at

But you've got to go back a step.

Yes, I agree,

6

but he says this, you go to line 5:

"This bag is

7

substantial documents and other materials that were taken

8

from my home in the aggravated burglary that the

9

plaintiff committed on the evening of 16 November 2006."

10

Then I identified what he was producing as a green

11

shopping bag and I say:

12

documents taken from Dorrington Street, is that right?"

13

"That's right."

14

simply weren't collected pursuant to the order of

15

Whelan J, as I understand it, these are the documents

16

that he refers to as having been taken, which your client

17

said she had returned everything that had already been

18

taken.

19MR DEVRIES:

"Now, you say they were the

Now, that's not the documents that

Her evidence is that everything I had is either

20

sitting in the exhibits or subpoenas area of the Federal

21

Magistrate's Court, or were comprised by the letter from

22

my present instructors with a whole lot of original

23

documents enclosed.

24

which exhibit that was, Your Honour.

It will take me a moment to indicate

25HIS HONOUR:

It was Exhibit 20 or thereabouts wasn't it?

26MR DEVRIES:

Yes, Exhibit 20, and she said - repeatedly said

27

this, and cross-examined up and down dale by Mr Johnson:

28

"Everything I had is in a combination of those two

29

bundles of documents.

30

are sitting on the shelves in the garage at 2 Dorrington

31

Street."

1.LL:CW 17/02/09 2Cressy

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There are other documents but they

88

DISCUSSION

1HIS HONOUR: 2

Where did she say that?

In the passage you have

just taken me to?

3MR DEVRIES:

Yes.

4HIS HONOUR:

That's in a different context.

5MR DEVRIES:

She says:

"There are more documents which meet

6

the same categorisation that Mr Johnson gave them.

7

are the documents relating to the purchase and

8

construction of dwellings on his properties."

9

"Well, there are boxes of those at 2 Dorrington Street,"

10

which she was no longer in receipt, Your Honour, saying:

11

"You've still got them."

12

they were in a mess."

13

were never taken because they remained there.

14

access to 2 Dorrington Street to go back and say to the

15

court, well, here they are.

16

didn't even go through, I don't know precisely what I

17

took but here they are, I've given them all over to him.

18

There was a car so full his passenger and helper couldn’t

19

go back in the car and they have ended up in the Federal

20

Magistrates Court, apart from attachments to Exhibit 20,

21

and that is as far as I can take that part.

He says:

These

She says:

"I found them there,

That is the explanation.

They She had no

She says what I took I

22HIS HONOUR:

Yes.

23MR DEVRIES:

But more importantly, Your Honour, in the context

24

of the counter-claim, Mr Johnson has given no evidence

25

of - - -

26HIS HONOUR:

Of loss.

27MR DEVRIES:

- - - of loss, and indeed has admitted that he has

28

failed to mitigate his loss.

29

documents that were taken ended up at the Federal

30

Magistrates Court, I know they're there, I've inspected

31

them but that's as far as I've gone.

1.LL:CW 17/02/09 2Cressy

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89

He says:

"Some of the

If they were of DISCUSSION

1

value to him he hasn't taken any steps to either have

2

them brought over to this court if he needed them for

3

these proceedings or photocopied them."

4

He had photocopied them.

He may have had a claim.

5

May have. But save for the fact that he says, I went to

6

the trouble of photocopying other documents that were in

7

the possession of Mr Ioannou he has demonstrated no loss,

8

he hasn't said well, that cost me so-and-so such money or

9

so-and-so such time, or anything like that.

His evidence

10

isn't well, I suffer any loss in damage because there are

11

documents that Mr Ioannou didn't have that I needed for

12

some purpose.

13

from Mr Ioannou.

14

suffered any loss through her taking those items.

15

the modem, her evidence was I know nothing of the modem,

16

never seen it, don't know what he's talking about.

He said, well everything I needed I got So his evidence is that he hasn't As for

17HIS HONOUR:

Where is that?

18MR DEVRIES:

He asked her about that, Your Honour it will take

19

me a moment to find the reference.

20HIS HONOUR: 21

I'm sorry, we can come back to it or I can look

for it myself.

22MR DEVRIES:

Page 186 I believe, Your Honour.

23HIS HONOUR:

Thank you.

24MR DEVRIES:

Line 9.

"Do you know anything about a mobile

25

modem card?

26

anything about any other telephony communications and

27

data storage devices?

28

unopened mail addressed solely to Mr Johnson.

29

you take any personal, business or client mail or

30

documents addressed solely to Mr Johnson?

31

intentionally, no.

1.LL:CW 17/02/09 2Cressy

I know nothing about that.

FTR:1-2A

No.

Do you know

Did you take or retain any No.

Did

Not

Everything was handed back and 90

DISCUSSION

1

everything was handed back to the police anyway.

2

the documents, records and items other than mobile phones

3

and telephone equipment, all that came into your

4

possession at 2 Dorrington Street, was all that handed to

5

Victoria Police?

Yes it was.

6

after that?

Did you get any of it back from

7

Victoria Police after that?

8

say it's at the Family Court.

9

by Mr Johnson.

No.

All of

Did you retain any of it

No."

Then she goes on to

She wasn't pressed on that

10HIS HONOUR:

Yes.

11MR DEVRIES:

And, whilst Mr Johnson indirectly – or referred to

12

the fact why he didn't cross-examine her on the further

13

finding of it – two things arise out of that in my

14

submission.

15

from my client and secondly, it was open to Mr Johnson to

16

apply to Your Honour to have my – to further

17

cross-examine my client on those documents now that he's

18

found them and he chose not to that.

The first is we've already got the evidence

19HIS HONOUR:

Yes, well.

20MR DEVRIES:

That's a two edged sword, it works both ways - - -

21HIS HONOUR:

A two edged sword as I continue to recall your

22

client but you say her evidence unchallenged on the

23

modems - - -

24MR DEVRIES:

Yes.

25HIS HONOUR:

Yes.

26MR DEVRIES:

Again, what loss has he suffered?

27HIS HONOUR:

Yes.

28MR DEVRIES:

He hasn't demonstrated any loss.

I'm not going to

29

make any submissions on my client's claim of rights to

30

the documents concerned, Your Honour.

31

conceding that point, my submission is that whether or

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Whilst not

DISCUSSION

1

not she had the right to them, whether or not she stole

2

them as he claims, whether or not it was an aggravated

3

burglary.

4

suffering any loss or damage so the determination of that

5

matter, in my submission, is not necessary.

6

There is no evidence led by him as to he's

Now, there are some other aspects of his

7

counterclaim which I would like to take Your Honour to.

8

He repeats the denials, admissions and positive averments

9

contained in his defence and apart from being bad

10

denials, there's nothing in his defence that requires any

11

answers - - -

12HIS HONOUR:

No.

13MR DEVRIES:

- - - from my client.

The second defendant, third

14

defendant – sorry Paragraphs 5 and 6 don't relate to my

15

client and Your Honour's already, with respect,

16

determined those issues.

17HIS HONOUR:

Well, his claim, which I must say is a bit

18

difficult to understand in Paragraphs 7 to 14 alleged a

19

misrepresentation by your client which induced him to

20

enter into an agreement that your client have occupation

21

of the premises at Dorrington Street and Inverloch Drive

22

and then Altona and your mother – and her mother of Lisa

23

Court.

24

misrepresentation.

25

he suffered loss and damage.

26MR DEVRIES: 27

He doesn't actually specify the He says they were fraudulent and that

And, he says at Paragraph 13 that full particulars

will be provided - - -

28HIS HONOUR:

Yes.

29MR DEVRIES:

- - - prior to trial.

30

Those particulars have

never been provided - - -

31HIS HONOUR:

No.

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DISCUSSION

1MR DEVRIES: 2

fraudulent misrepresentation.

3HIS HONOUR: 4

- - - nor has he given the evidence of the

There's been a suggestion he's misled or that it

was his expectation or hope - - -

5MR DEVRIES:

Yes.

6HIS HONOUR:

- - - your client wouldn't continue to work as a

7

sex worker but I would have thought the ready retort to

8

that is well, he said it was a constant bone of

9

contention that she was doing that so he full well knew

10

it and it could hardly have been misrepresented.

11MR DEVRIES:

And on his account, he knew the - - -

12HIS HONOUR:

Yes.

13MR DEVRIES:

- - - which he disagrees with.

14

He knew from the

first day he met her - - -

15HIS HONOUR:

Yes.

16MR DEVRIES:

- - - that that was her occupation - - -

17HIS HONOUR:

Her occupation and tat she was continuing with it

18

so it's hard to see any reliance, hard to see any

19

substance in the complaint that there was a fraudulent

20

misrepresentation.

21MR DEVRIES:

And certainly, not after the first property.

If

22

he says well, there was, that sort of belief on his part

23

that she induced him into it - - -

24HIS HONOUR:

Yes.

25MR DEVRIES:

Well, by the time the first property has been

26

occupied and they've moved from it, he knows and he says

27

but the agreement then extended to another property.

28

But, her evidence, in any case is that we lived in those

29

properties because we were in a domestic relationship.

30

If Your Honour finds that there is a domestic

31

relationship then that's the basis for her occupation,

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DISCUSSION

1

not some kind of agreement and she's denied the agreement

2

and he never really put that to her - - -

3HIS HONOUR:

No.

4MR DEVRIES:

- - - in any case.

He mentioned his own evidence

5

but he never put to her that we had an agreement.

At

6

best, he put to her that there was a – in an indirect

7

way, a child support agreement.

8

support agreement in his evidence and he puts to her a

9

list of payments - - -

He talks about a child

10HIS HONOUR:

Yes.

11MR DEVRIES:

- - - agency – non-agency payments that he says he

12

made by way of child support but he doesn't really go

13

beyond that and put to her that there was an agreement.

14

As for that part of the agreement that relates to her

15

mother, his own evidence is that the agreement was

16

between her and him.

17HIS HONOUR: 18

So Ms Cressy Senior and him.

Yes, and he did it because he wanted Ms Cressy

Senior and her children to have some stability.

19MR DEVRIES:

Yes.

20HIS HONOUR:

He said they hadn't lived in the same house for

21

the same Christmas for years or something like that.

22MR DEVRIES: 23

And that's not suggesting that it was pursuant to

an agreement.

24HIS HONOUR:

No.

25MR DEVRIES:

Between my client and him, and again,

26

Paragraph 14, James has suffered loss and damage, full

27

particulars of which will be provided prior to trial.

28HIS HONOUR:

He didn't prove any loss.

29MR DEVRIES:

No, no particulars have been provided, no

30

particulars were mentioned at trial.

31HIS HONOUR:

Yes.

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DISCUSSION

1MR DEVRIES: 2

Now, my client's caveat, I was going to deal with

this and, effectively, kill two birds with one stone.

3HIS HONOUR:

Yes.

4MR DEVRIES:

On Mr Johnson's own evidence and his own beliefs

5

at the time, a reasonable person might find that the

6

parties had a domestic relationship, at least during the

7

period of time that they cohabited under the one roof in

8

South Yarra.

9

fact that he toed and froed on that.

He knew that they had a child, despite the He knew that my

10

client did some work on some of these properties, because

11

he gave that evidence, where they differed was the amount

12

of help that she gave and the context in which she gave

13

it, and he must have known that – and knew that she was

14

the homemaker and parent during the time that they

15

resided in South Yarra.

16

So just on his own belief and his own information,

17

he knew that she had a claim under – or had the basis of

18

a claim under Part 9 of the Property Law Act.

19

arguments that, well, she wasn't on the title on any of

20

those properties, she didn't put any cash into any of

21

those properties, she couldn't prove that she put any

22

cash into those properties, it's not her complete answer,

23

and he, as a lawyer, would know that.

24

Your Honour on two bases, one is it's an answer to the

25

complaints that he makes about my client's legal

26

practitioners to make and maintain an application under

27

Part 9 of the property law act, and it's in answer to the

28

placing of the caveat.

29HIS HONOUR:

His

So that is put to

Well, not really, because my understanding of the

30

authorities is that a potential claim under Part 9 is not

31

a basis for a caveat.

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You do have show a claim, and in 95

DISCUSSION

1

fact the caveat was lodged pursuant to a claim to

2

entitlement under a constructive trust.

3MR DEVRIES:

Yes, with respect, that is correct, Your Honour,

4

and I'm well aware of some of the authorities, because I

5

was on the - - -

6HIS HONOUR:

- - - authorities on that.

7MR DEVRIES:

- - - on the wrong end of - - -

8HIS HONOUR:

Yes.

9MR DEVRIES:

One was Doherty v. Reppinak or Reppinak v.

10

Doherty, a decision of His Honour Mr Justice Beach, as he

11

then was, and there were at least two other decisions of

12

His Honour, and there have been some decisions since

13

then.

14HIS HONOUR:

Yes, Bell v. Graham, Goldstraw v. Goldstraw, which

15

is Justice Dodds-Streeton, Zen v. Mo last year, by

16

Justice Forrest, they're just a handful of them.

17MR DEVRIES:

Yes - - -

18HIS HONOUR:

But it has been also equally well held that

19

(indistinct) an arguable claim under a constructive trust

20

is sufficient.

21MR DEVRIES:

Yes, and he would have known that if a person

22

maintains a claim that we were in a domestic

23

relationship, and we had a joint financial arrangement

24

that the inevitability is that a constructive trust would

25

be claimed.

26HIS HONOUR:

M'mm.

27MR DEVRIES:

And that's sufficient to mount a caveat, and the

28

answer to the caveat too is that if a person lodges a

29

caveat, there is provision for the registered proprietor

30

to – I think it's section - - -

31HIS HONOUR:

Eighty-nine, yes.

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DISCUSSION

1MR DEVRIES:

A, 89A, that puts the caveator or caveators on

2

notice, and they're required to issue proceedings and to

3

justify by way of – and that's what she's done, and in my

4

submission, there is evidence before Your Honour where my

5

client quite clearly asserts a joint enterprise.

6HIS HONOUR:

Yes.

7MR DEVRIES:

And in – I might say she's put it in fairly

8

forceful terms when she was asked the question by

9

Mr Johnson, and again, insofar as he disputes that, my

10

submission is that you should prefer my client's evidence

11

to his, where there is such a difference, and I've taken

12

Your Honour to most of the bases for that contention on

13

my part.

14

Obviously, if Your Honour was to find that there was

15

no constructive trust and there was absolutely no basis

16

for my client to have that belief, then there may be a

17

problem, but he faces the same problem in that part of

18

his claim as he does in the rest of his claim, and it's

19

summarised in Paragraph 21 of his counterclaim, where he

20

says, "James has suffered loss and damage, full

21

particulars of which we will provide prior to trial".

22

particulars at all, much less full particulars were

23

provided prior to trial or during the trial.

24

No

So if she didn't have any basis for the allegation

25

of constructive trust and my submission is that Your

26

Honour ought not to find that and particularly as

27

Mr Johnson has pleaded fraud and malice.

28

the - - -

29HIS HONOUR:

And that raises

What is that cause of action anyway, which is the

30

other question I was going to ask you.

31

asked the same of Ms Sofroniou, I could not detect a

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97

And I think I

DISCUSSION

1

cause of action unless it's some type of intentional

2

infliction of economic injury or economic torts.

3

it's difficult to actually divine from this counterclaim

4

just what cause of action is relied on in relation to the

5

caveat.

6MR DEVRIES:

But

The best I can put to Your Honour, and I don't

7

really feel inclined to assist Mr Johnson, but the best I

8

can put is that what he's submitting is that the caveat

9

was lodged for some kind of ulterior purpose.

10HIS HONOUR:

Yes, well that's picked up by malice.

11MR DEVRIES:

Yes.

And the way he uses fraud maybe he's using

12

fraud as an alternative to malice.

But if my client

13

believes that they had a joint enterprise but her belief

14

is wrong, that doesn't amount to either malice or fraud.

15HIS HONOUR:

No.

16MR DEVRIES:

And again, as I said, he's established no loss or

17

damage even if he had a cause of action.

18

submission, covers his counterclaim.

And that, in my

19HIS HONOUR:

Does he - - -

20MR DEVRIES:

He goes back to making - - -

21HIS HONOUR:

Yes, he doesn't actually plead – he does plead a

22

cause of action against your client in issuing the

23

subpoena.

24

sort of claim in abuse of process because a subpoena is

25

an order of a court.

26

motive for that and it didn't seem to me to set out to do

27

that.

28MR DEVRIES:

That's at Paragraph 31 which I took to be some

But he has to prove an ulterior

And as the subpoena was issued out of the Federal

29

Magistrates' Court, if he says that the subpoena

30

was - - -

31HIS HONOUR:

An abuse of process, he could have had it set

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DISCUSSION

1

aside.

2MR DEVRIES:

Set aside and his cause of action is in that

3

court.

4

aside he would not be able to get damages out of that

5

court, I don't believe.

6HIS HONOUR:

Although I have to concede save for getting set

Although that court - - -

No, his cause of action I think would have been in

7

this court.

Well even assuming in his favour on that,

8

taking the trouble to decide that, you say well if it was

9

an abuse of process the remedy lay in his own hand.

But

10

certainly you say there's no abuse of process because

11

your client, it held has not been put that any of those

12

documents were patently irrelevant to the proceedings in

13

the Family Court.

14MR DEVRIES:

That's right, Your Honour.

And again no loss.

15

He's had access to them at all stages and in my

16

submission if you needed them for these proceedings that

17

would – it would not have been difficult for him to take

18

steps to have the documents produced to this court.

19

must say I haven't looked at the precise way of doing

20

that but I would imagine that this court could issue a

21

subpoena.

I

22HIS HONOUR:

I suppose it could issue a subpoena - - -

23MR DEVRIES:

Or a request.

24HIS HONOUR:

As a matter of comity you'd probably start with a

25

request and then move to a subpoena.

26MR DEVRIES:

I submit that it's unlikely that the Federal

27

Magistrates' Court would have refused a request from this

28

court for those documents to be brought over if

29

necessary.

30

which those documents were subpoenaed has been made by

31

that court Mr Johnson would have had, if he wished, the

1.LL:CW 17/02/09 2Cressy

And given that the decision in the matter for

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DISCUSSION

1

opportunity to ask for the documents on subpoena to be

2

released to him and chose not to do that.

3

likely the court would have held onto the documents

4

pending the appeal period.

Although it's

5

One other matter that I wish to go back to Your

6

Honour is on contributions and I had flagged it at an

7

earlier stage.

8

is also entitled to take account of negative

9

contributions.

And it's my submission that Your Honour

And my authority for that, Your Honour,

10

is a decision of His Honour Mr Justice Callinan in Burns

11

v. Hassan, which I've got a copy that I can hand up to

12

Your Honour.

13HIS HONOUR:

Thank you.

14MR DEVRIES:

Yes.

Burns v. Hassan?

Paragraph 90 probably summarises that part

15

of the decision and His Honour says at Paragraph 90, "I

16

accept that the behaviour of one party which has a

17

directly deleterious economic consequences" – that should

18

be consequence, "upon the property of the parties may in

19

appropriate circumstances be taken into account in the

20

valuation of the respective contributions of the parties

21

under s.285 of the Act.

22HIS HONOUR:

"However, the behaviour in question must be

23

related directly to the dissipation of or reduction or

24

minimisation of the value of such property before it is

25

relevant to the issue of contribution."

26MR DEVRIES:

And it goes on:

"It is clear there are no

27

sections under which an order for a just and

28

(indistinct) - " - - -

29HIS HONOUR:

Inappropriate or undesirable conduct.

30MR DEVRIES:

He quotes a decision of the Family Court which

31

says that if during the relationship one or other party

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DISCUSSION

1

goes into, shall we say, a poor investment:

2

parties would normally wear that, unless one of the

3

parties has embarked upon a course of conduct designed to

4

reduce or minimise the effect of value or worth of

5

matrimonial assets or one of the parties has acted

6

recklessly, negligently or wantonly with matrimonial

7

assets, the overall effect of which is reduced or

8

minimised their value."

9

that, so that the evidence for that is in - I think it's

10

Exhibit M.

"Both

Your Honour I rely on Part A of

Sorry, Exhibit L and N.

11HIS HONOUR:

"N" for Nelly?

12MR DEVRIES:

"N" for Nelly, or as previously said, "N" for

13

north, and these are the letters that Mr Johnson proudly

14

sent to various mortgagees.

15

establish that I had the means.

He said, I tendered them to

16HIS HONOUR:

You tendered them.

17MR DEVRIES:

He also tendered - - -

18HIS HONOUR:

L and N was your tender.

19MR DEVRIES:

L and N was my tender and I thought he

20

tendered - - -

21HIS HONOUR: 22

same sort of point.

23MR DEVRIES: 24

I think he tendered one you also relied on for the

Yes, and I think he relied - he gave a more

complete version.

25HIS HONOUR:

Yes, but it doesn't matter.

26MR DEVRIES:

35 was the same one but with a lot more

27

attachments.

28

Honour.

29

Corporation.

30

Mortgage Management, a different mortgagee.

31HIS HONOUR:

35 was the same.

I withdraw that, Your

I tendered letters to Royal Guardian Mortgage He tendered a similar letter to Challenger

You tendered Exhibit L and you rely on the last

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DISCUSSION

1

paragraph I take it.

2MR DEVRIES:

Yes, Your Honour.

3HIS HONOUR:

"While I have funds available to meet outstanding

4

mortgage payments, I have been advised that the prudent

5

course of action is to conserve my cash and allow the

6

mortgage payments to capitalise if the mortgagee will

7

agree."

8MR DEVRIES:

Yes, Your Honour.

9HIS HONOUR:

What is the other one, Exhibit 35 is it?

10MR DEVRIES:

35, Your Honour.

11HIS HONOUR:

Yes.

12MR DEVRIES:

A letter of 21 January.

It says exactly the same

13

thing.

14

sent some of it to a number of mortgagees.

15

nothing that can be more obviously under that sub-

16

paragraph A than that sentiment expressed by Mr Johnson.

17HIS HONOUR:

My recollection of his evidence is he said he There is

His explanation for that is in fact he wasn't

18

being square with the mortgagees, in fact he was covering

19

the fact that he wasn't able to pay the mortgages and it

20

was really to forestall them taking action against him.

21

There is a pretext here saying, well I just want to

22

capitalise the amount.

23

explanation.

24

matter.

25

his evidence, is it not?

26MR DEVRIES:

My recollection is his

Whether I accept it or not is another

But I'm correct in that is my recollection of

That was his evidence but in his address he put it

27

to you differently.

28

he had the means to meet these payments.

29

evidence he had lost two thirds of his income stream

30

prior to that.

31HIS HONOUR:

He submitted that it was proof that But on his own

Your argument is in fact the house of cards had

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DISCUSSION

1

come down by then and he couldn’t pay the mortgages, so

2

in a sense your argument supports his evidence on that

3

topic.

4MR DEVRIES:

It's another two edged sword, Your Honour.

5HIS HONOUR:

It is a two edged sword.

6MR DEVRIES:

But the way I put it Your Honour is insofar as he

7

may have had the means to pay some parts of some of the

8

mortgages, and we don't know whether he had no means at

9

all, there is a clearly expressed intention.

But the

10

difficulty I have with that argument is that I can't put

11

a figure or an amount, the damage that is caused by that

12

and it is yet another fact that I would be submitting

13

Your Honour should use in a global approach.

14HIS HONOUR:

It seems to me the most useful guide is - the best

15

use I can make of that is it seems to put a date on when

16

he ceased to pay the mortgages.

17

correspondence that he ceased to make his contributions

18

from January 2008.

19

that could be made of that bit of evidence.

20

line really at that point so far as his contribution is

21

concerned, or that part of his contribution.

22MR DEVRIES:

We know from that

That's probably the more reliable use It draws a

Your Honour, it puts the date, with respect,

23

slightly before that, because he says:

24

loan account was currently in arrears," that is the third

25

last paragraph.

26HIS HONOUR:

Yes.

27MR DEVRIES:

The next paragraph he says:

"I note that the

"Please advise if the

28

mortgagee are prepared to (indistinct) and allow the

29

outstanding mortgage arrears, as well as payments due

30

from January and February remain outstanding."

31

arrears probably were at least the December payment.

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So the

DISCUSSION

1HIS HONOUR:

Yes.

2MR DEVRIES:

I can't take it any further back than that - - -

3HIS HONOUR:

There's not much exactitude about the evidence on

4

these matters anyway but - - -

5MR DEVRIES:

No, Your Honour.

6HIS HONOUR:

- - - I think I will have to regard the evidence

7

with a slightly broad brush to try to get any sort of

8

picture of what the contributions are.

9MR DEVRIES: 10

Yes, Your Honour and with respect Your Honour

that's not an unusual - - -

11HIS HONOUR:

No.

12MR DEVRIES:

- - - characteristic of domestic relationship

13

matters and one of the great fears the plaintiffs have in

14

domestic relationship matters is that the defendant won't

15

play any part at all in the proceedings because more

16

often than not, a lot of their case has to come from

17

either discovery from the defendant or cross-examination

18

of the defendant.

19HIS HONOUR:

This case was set down on a two day estimate which

20

clearly, and I understand that decision was not entirely

21

yours, nonetheless it was in the expectation the

22

defendant might not attend.

23MR DEVRIES: 24

Yes and that would have created a lot of problems

for my client.

25HIS HONOUR:

Yes.

26MR DEVRIES:

A lot more problems.

27HIS HONOUR:

Seventeen days later - - -

28MR DEVRIES:

Yes.

29HIS HONOUR:

- - - and we're still here.

30MR DEVRIES:

But not Mr Johnson.

31HIS HONOUR:

No.

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DISCUSSION

1MR DEVRIES:

He's got the luxury of not being – just on that

2

point, Your Honour, I meant to raise this with Your

3

Honour yesterday.

4

receiving the transcript.

5HIS HONOUR: 6

I presume that Mr Johnson is still

I think – my understanding is it's available for

him.

7MR DEVRIES:

Yes.

8HIS HONOUR:

I do not know whether he is getting it or not.

9

I

think it's – the onus is on him to collect it.

10MR DEVRIES:

But, what I'm submitting, Your Honour, is it would

11

not be appropriate for the – whatever facilities had to

12

stop because he didn't – because he's ceased his

13

involvement on Friday.

14HIS HONOUR:

No, I agree with that.

15MR DEVRIES:

The less scope he has for complaint from my

16

client's point of view the better.

17

was going to finish by correcting a few things on the

18

record there and I concede at the outset most of them are

19

not relevant to Your Honour's decision in this matter but

20

it's clear that this transcript may be used - - -

21HIS HONOUR:

Yes.

22MR DEVRIES:

- - - in other proceedings.

Now, Your Honour, I

The first thing I

23

wish to correct, Your Honour, is that insofar as I'm

24

concerned, there is no special, unusual or different fees

25

arrangement between my client and myself.

26

accepted the brief on my usual terms and because of my

27

responsibilities under the Bar's cab rank rule and I've

28

entered into no special or different fees arrangement

29

with my instructors and I'm instructed by them that there

30

is no particular special or unusual fees agreement

31

between them and my client or our client.

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That I

DISCUSSION

1

I'm also instructed that the total fees that my

2

client's incurred in this and the other matters doesn't

3

go anywhere near $300,000 and they have no idea where

4

that figure's come from save that it's probably a figment

5

of Mr Johnson's fertile imagination.

6

a number of occasions into a rather theatrical

7

presentation of the number of family law assistants that

8

I had available to me.

9

gentlemen who sat there for a short period of time,

Mr Johnson went on

With the exception of the

10

behind Mr Johnson, who was Mr Obst, I have no knowledge

11

or understanding who all the other people were save that

12

I believe that they were employees of Harwood Andrews but

13

they played no part in my preparation of this matter and

14

the only assistance I've had has been from Mr Turnbull

15

and whatever facilities he had at Berry & Associates.

16

Mr Obst was here because he's the solicitor of the Legal

17

Professional Liability Committee, who my insurers have in

18

the counterclaim and he wished, apparently, to come and

19

see what the enemy looked like.

20

He argued that my client's case must fail

21

because she was not registered on title and I think I've

22

covered that.

23

Part 9 of the Property Law Act - Part 9 of the Property

24

Law Act and the equivalent provisions of the Family Law

25

Act.

26

Grandiose, wide-ranging statements in university style

27

debating histrionics are an inadequate replacement for

28

argument particularly when those are aimed at the speaker

29

rather than the content of the speaker's material.

30

Mr Johnson, right throughout these proceedings, has made

31

frequent repeat accusations about the conduct of my

If that was the case, there wouldn't be

Repetition doesn't add weight to an empty argument.

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1

instructor and myself.

2

specifically denied and at no stage have I ever – or my

3

instructors had any reason to believe that our client did

4

not have at least an arguable case and as Your Honour

5

said it would have been inappropriate for my instructors

6

and I to challenge, or not accept the client unless there

7

was reason to believe that there was some ulterior motive

8

as there was in what Mr Johnson kept calling incorrectly,

9

the Callinan case.

10HIS HONOUR:

Each of those accusations is

Well, Mr Johnson seemed to have extraordinary

11

difficulty understanding a principle which, I think we

12

all learned on about the day we entered the legal

13

profession, if not beforehand, that it is not for a

14

lawyer to stand in judgment of his or her client.

15MR DEVRIES:

Yes.

16HIS HONOUR:

To do that would corrupt and pervert the legal

17

system.

Every person in our community is entitled to

18

legal representation and within the bounds of the ethical

19

rules that we all know that bind both barristers and

20

solicitors, a barrister must act for a client, even if

21

the barrister has reservations about the client's claim.

22

I would have thought that Mr Johnson, who produced

23

physically in court and said he had read the book by

24

Mr Geoffrey Robertson, "Tyrannicide Brief", which

25

describes the life and death of the great English

26

advocate John Cooke would have illustrated that point to

27

him to the utmost.

28

enormous courage, to prosecute the monarch of the realm

29

who claimed a rule by way of divine right and he lost his

30

life as a result of that.

31

It fell to Mr Cooke, in an act of

He didn't want the brief, he might have had doubts

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1

about whether Charles I should have been prosecuted but

2

he took it on.

3

failed to have any appreciation that that type of

4

principle is very much a golden thread that binds you, Mr

5

Devries, although not in stated terms.

6

to observe that most solicitors in this State abide by

7

and adhere to this same type of principle and it is what

8

makes our legal system work.

9

And it amazes me that Mr Johnson has

I have been proud

I say that in the hope that Mr Johnson is reading

10

what I have just said because he seems to either not

11

understand it or, I apprehend, not to want to understand

12

it.

13MR DEVRIES:

I have to say to Your Honour that were it not for

14

the cab rank rule and the obligations that flow from that

15

it would have been very tempting very early on in this

16

proceeding for myself, and for my instructor, to say

17

look, this has all become too hard, I don't need the

18

grief and pull out of the matter.

19

suspect by making that clear to Mr Johnson very early on

20

he took it as a dare or a challenge to him.

21

Anyway, almost finished.

Unfortunately I

The other two matters I

22

wished to submit to Your Honour is that Mr Johnson has

23

sought to challenge the orders of His Honour Federal

24

Magistrate O'Dwyer, that unless he can establish

25

otherwise Mr Johnson is stuck with the concept that the

26

orders would not have been made by a court of that

27

standing without a good reason.

28HIS HONOUR:

We could always have appealed them in the Federal

29

Court structure, I assume, if he didn't think they were

30

appropriate.

31MR DEVRIES:

He could have.

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DISCUSSION

1

orders because I think he's still within time.

2

of time preparing the interim orders.

He's out

3HIS HONOUR:

He knows all about appeal.

4MR DEVRIES:

He certainly does, Your Honour, and the same goes

5

for the orders made by various honourable judges of this

6

court in interim matters, and again he is out of time to

7

appeal those if he felt they were inappropriate.

8HIS HONOUR:

Yes.

9MR DEVRIES:

On the question of - I think I've already said

10

this, in my submission to keep submitting to Your Honour,

11

with respect, that he is going to appeal your decisions

12

or that is another appeal point or matters like that is

13

not only discourteous, not only contemptuous and

14

contemptible behaviour, but it's a clearly planned threat

15

to Your Honour and it's not something that's worthy of a

16

practitioner of this court.

17HIS HONOUR:

It isn't but it's a waste of breath.

It doesn't

18

concern me, but I agree it's quite inappropriate

19

behaviour by any practitioner in the middle of a case to

20

keep trying to argue the toss with the judge or saying

21

he's going to appeal it.

22MR DEVRIES:

The same thing with respect to ignoring rulings.

23

City Hall has spoken and apart from all the ethical and

24

like considerations there is no practical benefit from

25

taking on City Hall, when City Hall has got the final

26

say.

27HIS HONOUR:

I don't know that I'm City Hall, but I make

28

rulings as a judge, the system would be unworkable if I

29

constantly changed my mind.

30

benefit of more rulings his way in many respects than

31

against him.

1.LL:CW 17/02/09 2Cressy

He, I must say, had the

Mathematically I ruled more against him

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DISCUSSION

1

simply because it was a constant repeat of the same

2

ruling, but if you avoid the duplication caused by his

3

conduct, I suspect that he actually had the benefit of a

4

lot of very favourable rulings.

5MR DEVRIES: 6

I wasn't, with respect, Your Honour, keeping count

but - - -

7HIS HONOUR:

There were many times I overruled objections by

8

you giving him the benefit of the doubt I would not have

9

given to a represented party.

10MR DEVRIES: 11

I must say once the rulings were made, Your

Honour, I moved on.

12HIS HONOUR:

Of course, quite properly.

13MR DEVRIES:

Did try to learn from them.

14

Your Honour, those

are my submissions.

15HIS HONOUR:

Yes, I thank you for that, Mr Devries.

I thank

16

you for your assistance.

17

instructor for your enormous endurance and forbearance in

18

what has been, in my observation, a most trying and

19

difficult case for those representing Ms Cressy, and I

20

don't say that with any disrespect to Ms Cressy, but you

21

have been put under extreme pressure by Mr Johnson and

22

you have both borne yourselves admirably.

23

for the assistance you have shown.

24

decision.

25

lot of ground to be covered and I need to give this

26

matter anxious consideration.

27

decisions I make.

28

of two things could occur, I could simply declare a

29

percentage and then come back and seek further

30

submissions on specific orders or alternatively I can

31

endeavour, if I do find in favour of your client, to make

1.LL:CW 17/02/09 2Cressy

Again I commend you and your

I am grateful

I will reserve my

I would hope not to be too long but there is a

Much depends on what

If I find in favour of your client one

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DISCUSSION

1

specific orders in relation to properties.

If your

2

client succeeds it is of course preferable, but simply

3

declaring that she has X interest in all the properties,

4

because I think that would condemn the parties to further

5

litigation.

6

particularly careful consideration if I get to that

7

stage.

But I will give that part of the case

8MR DEVRIES:

If Your Honour pleases.

9HIS HONOUR:

I think in the long winded way I am saying that

10

there may be need for further assistance or further

11

hearings, but I would try to avoid that if I can.

12MR DEVRIES:

I have already flagged, Your Honour, that even if

13

Your Honour finds against my client on the principal

14

matters, I will still be making an application for some

15

degree of costs.

16HIS HONOUR:

On the Dorrington Street property, as I said to

17

you, you ought to, if you wish to have some sort of

18

Mareva type order of the type that I think Hanson J made,

19

you will need to get some expert input, to ensure that

20

any order I make is more effective than the one that was

21

drafted on that occasion.

22MR DEVRIES: 23

am sure that will be attended to.

24HIS HONOUR: 25

Yes, I will raise that with my instructors and I

Yes, they will need to consult an experienced

conveyancing solicitor I would have thought.

26MR DEVRIES:

Yes.

27HIS HONOUR:

And also talk to the Registrar.

28MR DEVRIES:

If Your Honour pleases.

29HIS HONOUR:

Thank you, I reserve my decision and you will be

30

notified in due course and notification will also be

31

given to Mr Johnson.

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DISCUSSION

1MR DEVRIES:

If Your Honour pleases.

2HIS HONOUR:

Thank you Mr Devries.

3

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