Beciragic, B. v Benz Court Pty Ltd

[1988] FCA 639

IN THE FEDERAL COURT OF AUSTRALIA _ ___ . . . -- 1

QUEENSLAND DTSTR-RT REGISTRY 1 QLD G354 of 1988

DIVISION GENERAL 1

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BETWEEN:  BEBA BECIRAGIC

First Applicant

AND:  SAMIRA BECIRAGIC

Second Applicant

AND: JIGMERE PTY LTD

Third Applicant

AND:  BEN2 COURT PTY LTD

First Respondent

AND: BETACE PTY LTD

Second Respondent

AND:  ANTHONY TOSWELL

Thlrd Respondent

AND:  PAVO JURIC

Fourth Respondent

AND:	IVAN GUZAN	t -..
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Fifth Respondent

AND:  IWRCIA GUZAN

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Sixth Respondent

NINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	27 OCTOBER  l988
WHERE NADE:	BRISBANE
THE COURT ORDERS THAT:

1.    the injunction which has been granted, which would,

otherwise expire at 2.30 p.m. today, be extended

until further order;

2 .    a condition of its extension be that within seven

days the sum of $10,000 be paid to the second
respondent and $2,500 by way of current rental also
within a week, and $2,500 weekly thereafter;
3 .	the notice of motion for an interlocutory

injunction be heard on Monday, 14 November 1988 at

4.15 p.m.;

4.	any affidavits to be used on Monday, 14 November
1988 be filed and served on or before Wednesday, 9 I ,'

November 1988 and not later;

5. the costs of yesterday and today be reserved for

disposltion when the application an for

interlocutory injunction is heard. I

NOTE :  Settlement and entry of orders 1s dealt wlth in

- Order 36 of the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALI-A

QUEENSLAND DISTRICT REGISTRY	QLD G354	Of 1988
GENERAL DIVISION

BETWEEN:  BEBA BECIRAGIC

First Applicant

AND:  SAIURA BECIRAGIC

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Second Applicant

AND:  JIGMERE PTY LTD

Third Applicant

AND: BENZ COURT PTY LTD	i'
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First Respondent

AND: BETACE PTY LTD

Second Respondent

AND: ANTHONY TOSWELL

Third Respondent

AND: PAVO JURIC

Fourth Respondent

AND:  IVAN GUZAN

Fifth Respondent

AND: MARCIA GUZAN I . .

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Sixth Respondent

PINCUS J. 27 OCTOBER 1988

EX TEMPORE REASONS FOR JUDGMENT

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This is an application for an injunction for	a period of ,	I ,
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about two weeks. The circumstances are that an injunction has	!
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already been granted on short notice and the parties have been	! i

given	an	opportunity	to	came	before	me today	with	more	complete	i
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material. Although the injunction sought is for a short time

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only, the circumstances are so unusual that I think I should give	i '	-.
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reasons other than in mere outline.	I
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The applicant's case is that it took a lease of a hotel I

in Brisbane on a false representation as to turnover. The 1 .

statement of claim says that the lease was granted on 18 December

1987, the	third	applicant	being	the	tenant.	The	representation	as	1
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to turnover is said to have been oral, and when the matter first I I -

came before me, there was nothing in particular to support the i

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allegation that such representation was made.	,,
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There are now three Circumstances which tend to point in

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favour of the appllcants	on	that point. Firstly, there is	a	1 ,
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document exhibited to the affidavlt of Mr Zaghini, setting out the

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alleged trading and profit	loss	account of	a company called	!
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RilCKaft Pty Ltd, which formerly ran the hotel, which account, as	i
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Mr Robin Q.C.	(who appeared leading Mr Ulrick for one or more of	I
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the respondents) says, is not necessarily inconsistent wlth a t

turnover of $1.7	m.	.-
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Secondly, there is the circumstance that, as I ,

understood Mr Robin's submission just mentioned, he attempted

positively to urge upon me the view that the document was

consistent with such a turnover, rather than adopting a neutral

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position. From	that, I might deduce, sufficiently strongly for	'	1 -
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present purposes, that there is perhaps something in the

suggestion that $1.7 m. was represented.

Thirdly - and this is related to the second point - it

is a curiosity of the case that, although	I berated the applicants
yesterday for coming before me with such scanty material, giving	i
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me the barest outline	of what the matter was about, the boot is

rather on the other foot now; whereas the applicants have clearly

stated what their case is, I have nothing but bald denials on the

other side. That is, of course, unsatisfactory from the point of
view of the Court. I am not told whether the respondents' case

is, improbably, that the applicants entered into the transaction

with no idea what the turnover was, or whether some lower turnover

than $1.7 m. is going to be said to have been represented. The

respondents have kept their powder thoroughly dry and that has	a
cost.

AS to the other leg of the applicants' case, the

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assertion that the turnover was, in fact, $ 8 0 0 , 0 0 0 and not

$1.7 m.,	I have a document apparently sent from Benz Court, the
first respondent, to	a Mr Qulnn, which seems to say that, although

the licensing authorities were told otherwise, the turnover was, , .

in fact, about $800,000 per annum. Mr Robin, at one stage,

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suggested that he	was	desirous of obtaining some instructions	I. 1
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about the document, but when I asked him towards the end of the ,

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hearing	whether	he	wanted	any	time,	he	said,	"NO.". I think	that	8 .
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for present purposes	I should take the document	at face value.	; ,
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One has the rather unusual situation that, although the	1 . I, .
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case has just started, the applicants seem	to have two documents
to support them and there is nothing except the general denial	on

the other side. That,	however, is	by no means the end of the
matter, because, as	14r	Robin argued today and Mr Ulrick argued

yesterday, the relief sought is quite unusual. The tenant has

spent a lot of money on the premises. $93,000-odd has been

borrowed from the first respondent to pay off a part of the

licensing fee. A great deal of effort has been put into the

premises and the applicants say that if, pendente lite, they are put out of the premises but ultimately win the case, there is a lack of probability that they will be able to recover damages; they point to evidence in the respondents' material suggesting

financial difficulty there.

On the other hand, the applicants also seemed to be in

financial difficulty - in fact, in an impossible financial

position, if the lease stands. What the applicants want me to do

is to give them a perlod of time in which to mount a case with

more elaboration, to achieve the unusual result that for the
period of tlme until trial - it would have to be months - they are

obliged to pay only half the rent while remaining in possession;

this is an anticipation of their obtaining at trial such an order
as that, under	s.87 of the Trade Practices Act 1974.

Mr Robin Q.C. urged upon me the view that it has been ,

estabished ever since Walsh v. Lonsdale that such an order cannot

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be made. I quite agree with him about what the law was in the

19th century; it is clear enough that it is now different. I feel' considerable reluctance to accede to the applicants' submissions

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for a number of reasons, although it has to be conceded that their

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case,	question	the	on	respondents'	the	of	alleged	:
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strength. . I	unusual	misrepresentation	has	j t .$
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There are other possibilities available to meet the

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situation. For example, the material says that proceedings have

been brought by the first respondent to recover the	$93,000, and,
presumably, it would be possible to restrain the recovery of that	r. .
pending this suit. The	other, simpler, possibility is that they

move out and	pursue	their	monetary	remedies	against	the
respondents.

The applicants say that the respondents may all turn out

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to be insolvent, and whereas that is	a possibility, the applicants
may, on the other	hand, avoid a great deal of uncertainty and
anxiety if they	do move out.

The conclusion which I have come to, rather reluctantly,

is that I should accede to Mr Lyons' submission; I do so only

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because of the unusual strength of the applicants' case that they	i
were cheated and the unusual baldness of	the respondents' answer

to it. The order which I propose to make is as follows: I order

that the injunction which has been granted, which would otherwise

expire at 2.30 p.m. today, be extended until further order.

I order that a condition of its extension be that within

seven days the sum of $10,000 be paid to the second respondent

and $2,500 by way of current rental also within a week, and	$2,500
weekly thereafter.

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I would add that there have been some discussions

between the parties in this matter, as appears from the

correspondence had with 13r Zaghini, and attempts have been made to

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resolve it. If it goes to trial there could possibly be

repercussions beyond the order of this Court, and I refer

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particularly to the letter exhibit	"B" which suggests a serious	. .
illegality.	I would urge the parties, if it	is possible - I am
sure their lawyers will assist them	- to try to reach	a resolution

of the matter before it comes before the Court again.

The notice of motion for an interlocutory injunction

still remains to be heard and I propose to hear that in about two

weeks time. The hearing will be at 4.15 p.m. on nonday, 14

November 1988. , .

I have granted the injunction until further order, but	t
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it is	to	be	understood	that	on Monday, 14 November, if	the	!,'
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injunction is not	extended tlll trial (that depends upon matters	.	l l.
of the sort that	nr Lyons discussed, upon showing the long-term
practicability of	it) it will presumably then	be dissolved, unless	: ,

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some other, lesser, relief is granted on that day.

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I direct	that any affidavits to	be	used	on Monday, 14	'.
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November be filed and served on or before Wednesday, 9 November,	I
and not later.	:>
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I propose to reserve the costs of yesterday and today

for disposition when the application for an interlocutory

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injunction is heard.

1 cerfify tEBt this and the G preceding

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I pages ars a true copy of the reasons for

j	herein	judgment	of His Honour
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Mr. Justice Pincus

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Associate

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Dated a7 ohbe/. F I ~ S

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