FEDERAL COURT OF AUSTRALIA

von Risefer v Permanent Trustee Co Pty Ltd [2001] FCA 544

EUSTACE VON RISEFER, ELIZABETH VON RISEFER, SATOR AUST PTY LTD AND GOLD COAST BARRAMUNDI PTY LTD v PERMANENT TRUSTEE COMPANY PTY LTD AND LATROBE HOME LOANS AUSTRALIA PTY LTD

Q 106 OF 2000

DOWSETT J

27 APRIL 2001

BRISBANE

THE COURT ORDERS THAT:

1.         The third and fourth applicants be dismissed from the proceeding.

2.         The second applicant to pay the respondent’s costs of appearing today.

.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     These proceedings were commenced by application filed on 13 October 2000.  There are four applicants: Eustace von Risefer, Elizabeth von Risefer, Sator Aust Pty Ltd, and Gold Coast Barramundi Pty Ltd.  There are two signatures on the application, one of which is that of Eustace von Risefer.  I assume the other is that of Elizabeth von Risefer, although it is not clear.  I am told that it is so, and I accept that.  Order 4 sub-rule 14(2) provides:

Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor.

2                     There has never been a solicitor on the record for any of the applicants.  The matter has been before the Court on a number of occasions because of problems in serving the respondents.  They have been previously involved in lengthy litigation with the applicants, or some of them, and seemed reluctant to become further engaged.  However, they eventually appeared.  On 23 February I heard an application in which Mr and Mrs von Risefer appeared, seeking to join further respondent.  The application was unsuccessful.  At that stage the question of the conduct of the proceedings on behalf of the third and fourth applicants was not addressed.  I cannot actually recall why, but it seems likely that it was because Mr and Mrs von Risefer, as two of the applicants, were treated as making the application for the joinder on their own behalf.

3                     However, when the matter was before the Court more recently, the point was raised. With a view to regularising proceedings, Mr and Mrs von Risefer were given an opportunity to appear today to make an application for leave pursuant to Order 4 rule 14.  Although I cannot remember precisely what occurred, my recollection is that I explained that they would need some evidence of authority for them to act on behalf of the companies.  Today Mrs von Risefer has appeared.  She has also sought to appear on behalf of her husband.  The material which she has filed says nothing about her authority to act on behalf of the companies or the authority of her husband to do so. 

4                     The respondents have filed an affidavit setting out company searches conducted in respect of the 3rd and 4th applicants.  The third applicant has been de-registered, although Mrs von Risefer asserts that steps are being taken to reconstitute it.  It seems that Mr von Risefer is a director of the 4th respondent.  The third respondent, of course, has no current director, or at least so it would seem from the company search.  In any event, Mrs von Risefer has not taken advantage of the opportunity to demonstrate that either she or her husband is authorised to act on behalf of either company.

5                     It is submitted that if any part of the claim by the companies is statute-barred, it was so barred when these proceedings were commenced.  Some parts of the alleged cause of action arose more than three years prior to the date of commencement of these proceedings, while other aspects arose less than three years ago.  In those circumstances there is no irremediable prejudice to either company in dismissing their applications. 

6                     I really have no choice other than to do so, given that there has never been a solicitor acting for either of them, and Mrs von Risefer and her husband have failed to demonstrate any authority to act.  If it is possible for Mrs von Risefer to obtain such authority in the future, it will be possible for her to seek to have the companies joined as applicants.  In the circumstances I order that the third and fourth applicants be dismissed from the proceedings.

7                     I order the second applicant to pay the respondent's costs of appearing today.

Associate:

Dated:              10 May 2001