Alkan v Martin College Pty Ltd

FEDERAL COURT OF AUSTRALIA

Alkan v Martin College Pty Ltd [2004] FCA 828

HAKAN ALKAN v MARTIN COLLEGE PTY LTD

Q 53 OF 2004

DOWSETT J
1 JUNE 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 53 OF 2004

BETWEEN:	HAKAN ALKAN APPLICANT
AND:	MARTIN COLLEGE PTY LTD RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	1 JUNE 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the proceedings, including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 53 OF 2004

BETWEEN:	HAKAN ALKAN APPLICANT
AND:	MARTIN COLLEGE PTY LTD RESPONDENT

JUDGE:	DOWSETT J
DATE:	1 JUNE 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application pursuant to O 15A r 6 for discovery in advance of proceedings.  The application arises out of dealings between the present applicant and a company, Adnam Pty Ltd (“Adnam”), a subsidiary of Ariadne Australia Limited, which led to the grant of a lease by Adnam to Alkan Investments Pty Ltd (“Alkan”) over commercial premises in a Brisbane building (the “building”).  The present applicant was a director and shareholder of Alkan.  In about October 2001, representatives of Adnam disclosed to the applicant a letter dated 8 August 2001 from the present respondent, apparently written to an officer of Adnam.  It seems that the respondent conducted educational activities in other parts of the building.  In the letter, the writer said:

   ‘I am more than happy to provide the following information to you regarding the operations of the College in our beautiful new Campus at 119 Charlotte Street, Brisbane.

   Please be aware the nature of this information I am providing you is commercially sensitive.’

2. The letter goes on to supply information concerning the operating times of its educational activities, the numbers of students, their demographic make-up, and college programs.   These matters were of interest to Alkan and the applicant as Alkan proposed to operate a sandwich bar or similar operation in the building.  Alkan has gone into liquidation, and I infer that the present applicant attributes its financial difficulties to its having entered into the lease with Adnam in reliance upon the letter of 8 August 2001 from the respondent. 

3. The applicant asserts that he and his father, who were the directors and shareholders of Alkan, caused it to lease the premises, personally guaranteed funds advanced to it and invested money in it.  He claims to be entitled to damages pursuant to the Trade Practices Act 1974 (Cth) for breach of s 52, read with s 51A, damages for fraudulent misrepresentation and/or damages in equity.

4. Order 15A r 6 provides:

   ‘Where –

   (a)there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained;

   (b)after making all reasonable inquiries, the applicant…