Catalfamo, Antonio v Hersfield Holdings Pty Ltd

[1981] FCA 55

Re: ANTONIO CATALFAMO; VASSILIOS COLLIAS; JOHN and CATHERINE DOUNIS; GOLLIWOG
INVESTMENTS PTY. LTD.; JOHN NUNZIO GIACCHI
And: HERSFIELD HOLDINGS PTY. LTD.; HERSFIELD DEVELOPMENTS CORPORATION PTY.
LTD. and GEORGE HERSCU (1981) 52 FLR 343
Nos. VG 42, 44, 46 and 70 of 1981
Trade Practices - Contempt of Court

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.(1)

CATCHWORDS

Trade Practices - consumer protection - misleading and deceptive conduct - lease of shops - re-entry by Lessor - source and nature of power of court to grant interlocutory injunctions restraining Lessor - prima facie case - balance of convenience - discretion of court - right of set-off in absence of proceedings in court - repudiation of lease - acceptance of repudiation and re-entry.

Contempt of Court - effect of commencement of proceedings - subsequent direct action by respondent.

Federal Court of Australia Act 1976, ss.23, 31.

Trade Practices Act 1974, ss.52, 53A, 80, 82, 87.

Federal Court of Australia Rules, O.25 rr.1 and 2, O.40 r.5.

Crimes Act 1958 (Vic.), s.207.

Property Law Act 1958 (Vic.), s.146.

Supreme Court Act 1958 (Vic.), Part V111, Division 5.

Trade Practices - Misleading and deceptive conduct - Lease of shops - Rent and charges owing by lesees - Re-entry by lessor - Interlocutory injunctions restraining lessor - Prima facie case - Lessees' right of set-off - Preservation of property - Lessor's application for quia timet injunction - Trade Practices Act 1974 (Cth), ss. 52, 53A, 80, 82, 87 - Federal Court of Australia Act 1976 (Cth), s. 23 - Federal Court Rules, O. 25, rr. 1, 2.

Contempt - Commencement of proceedings by lessees - Subsequent self-help by lessor - Federal Court of Australia Act 1976 (Cth), s. 31.

HEADNOTE

The applicants, being lessees under four leases of shops in a shopping centre with the first respondent as lessor, commenced proceedings against the respondents seeking damages under s. 82 of the Trade Practices Act 1974 and variation of the leases pursuant to s. 87. The shopping centre had been unsuccessful for the applicants and substantial amounts of rent and charges were owing by them under the leases. The first respondent desired to use the areas occupied by the applicants to house a major tenant which it hoped to attract to the shopping centre. It offered to relocate the applicants. On 10th and 11th April, 1981, it served notices of acceptance of repudiation of the leases on the applicants; these notices recited the sums owing under the leases. On 11th and 12th April, 1981, persons acting at the direction of the respondents entered the applicants' shops, emptied them and rendered them unusable by the applicants. At that time directions for the future conduct of the actions of three of the applicants had been given. The fourth application had not been commenced. On 12th April, 1981, upon the applicants' ex parte applications, interim injunctions were granted restraining the respondents from taking further steps to recover possession of the shops.

Upon the hearing of three motions for orders that the respondents by their actions were guilty of contempt of court and of four motions by the applicants for interlocutory injunctions and mandatory injunctions requiring the respondents to reinstate the four shops to their former conditions and of a motion by the respondents seeking interlocutory injunctions restraining the applicants from entering upon or interfering with the respondents' occupation and possession of the shops,

Held: (1) None of the respondents had committed a contempt of court. Their conduct was not intended nor was it likely to interfere with or obstruct the fair administration of justice.

Brambles Holdings Ltd. v. Trade Practices Commission (No. 2) (1980), 44 FLR 182; Registrar of the Supreme Court v. McPherson, (1980) 1 NSWLR 688; Austman v. Bjarnason, (1932) 2 WWR 20; Thomson v. Times Newspapers Ltd., (1969) 1 WLR 1236, referred to.

(2) The court had power to grant the interlocutory injunctions sought by the applicants.

George MacGregor Auto Service Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd. (1980), 52 FLR 458, applied.

(3) Applying the principles applicable to interlocutory injunctions: (a) although there was evidence which if accepted would establish the applicant's claims for relief; (b) the applicants could not establish a prima facie case because for the purposes of the hearing: (i) the applicants owed to the lessor the moneys referred to in the notices of acceptance of repudiation; (ii) the applicants were not able to rely upon any claim of set-off; (iii) the applicants had not established a sufficient case that the lessor could not accept their repudiation of the lease, Dimond v. Moore (1931), 45 CLR 159; Highway Properties Ltd. v. Kelly, Douglas & Co. Ltd. (1971), 17 DLR (3d) 710, referred to; (iv) the applicants had not established a sufficient case that the respondents were not entitled to take possession of the shops and for that purpose to remove the property of the respondents, Hemmings v. Stoke Poges Golf Club Ltd., (1920) 1 KB 720, referred to; (v) O. 25, r. 2 of the Federal Court Rules did not assist the applicants as the lessee applicants' rights of property in the demised premises were not property within the meaning of that rule; (c) in any event the balance of convenience favoured the refusal of the interlocutory injunctions.

(4) The respondents' application should be refused as: (a) the court was not satisfied it had the power to make the orders sought, Firona Pty. Ltd. v. Hersfield Holdings Pty. Ltd. unreported (Federal Court of Australia, Smithers J., 13th February 1981), referred to; (b) it involved the grant of quia timet injunctions based upon threatened trespass but it had not been established that there was a real probability of imminent trespass by the applicants or that the applicants would cause substantial damage to the property of the respondents, Grasso v. Love, (1980) VR 163, referred to.

HEARING

Melbourne, 1981, April 15, 22-24, 27; May 11. #DATE 11:5:1981

MOTIONS.

Motions for interlocutory injunctions and that respondents be punished for contempt of court.

P.A. Liddell Q.C. and W.J. Martin, for the applicants.

C.L. Pannam Q.C. and H. Jolson, for the respondents.

Cur. adv. vult.

Solicitors for the applicant Catalfamo: Arthur Secomb & Co.

Solicitors for the other applicants: Rylah & Rylah.

Solicitors for the respondents: Strongman & Crouch.

T.J. GINNANE

Orders accordingly.

JUDGE1

A number of motions in each of the applications herein have been heard together with the consent of all parties. Hersfield Developments Corporation Pty. Ltd. (hereinafter called "the Developer") and Hersfield Holdings Pty. Ltd. (hereinafter called "the Lessor") are associated companies and each is a corporation under the Trade Practices Act 1974 as amended, (hereinafter called "the Act"). George Herscu is the Managing Director of each of those corporations. During the years 1978-1979 the Developer was engaged in developing a new shopping centre and market-place at Deer Park to be known as "Deer Park Shopping Centre" (hereinafter called "the Centre"). The Developer was seeking to attract persons to conduct their businesses in the Centre and for that purpose to enter into leases of shops within the Centre. More than one hundred shops were planned and a major tenant had agreed to conduct a Safeway supermarket in one of the shops. The Lessor was to be the landlord of the shops and for present purposes it is sufficient to say that the leases entered into by the various tenants were in a common form.

By a lease dated 5 November 1979 the Lessor granted a lease of Shop No. 23C to Antonio Catalfamo for a term of nine years with an option for a further three years at an initial rent of $19,032 per annum payable calendar monthly in advance on the first day of each month at the rate of $1,586. The lessee was required to carry on the business of a "Retail Butcher including Poultry".

By a lease dated 9 July 1979 the Lessor granted a lease of Shop No. 71 to Vassilios Collias for a term of two years with an option for a further two years at an initial rent of $13,394.64 per annum payable calendar monthly in advance on the first of each month at the rate of $1,116.22. The lessee was required to carry on the business of a "Jeanery". The Lessor allowed the lessee a rebate of $3,394.64 as an establishment allowance for the first year of the lease, and accordingly during the first year the lessee was required to pay $10,000 per annum ($833.33 per calendar month) in lieu of the $13,394.64 per annum ($1,116.22 per calendar month).

By a lease dated 7 May 1980 the Lessor granted a lease of Shop No. 90 to Golliwog Investments Pty. Ltd. (hereinafter called "Golliwog") for a term of six years with an option for a further six years at an initial rent of $8,060 per annum payable claendar monthly in advance on the first of each month at the rate of $671.67. The lessee was required to carry on the business of "Gift Shop and Jewellery".

By a lease dated 21 September 1979 the Lessor granted a lease of Shop No. 89 to John Giacchi for a term of two years with options for three further periods of two years, each at an initial rent of $5,690 per annum payable calendar monthly in advance on the first of each month at the rate of $474.17. The lessee was required to carry on the business of "Ladies' Fashion and Accessories".

Each of the four leases commenced on 27 November 1979. Pursuant to the leases, each lessee was required to install the fixtures, fittings, equipment, floor and wall coverings and stock as necessary to fit and equip the shop for the business to be carried on therein. Clause 5.00 of each lease required the lessee to pay the rent reserved by the lease, and by Clause 5.04 each lessee "covenants with the lessor to pay the aforesaid annual rent . . . by the payments on the dates and in the manner aforesaid . . . and to make such payments without any prior demand therefore and without any abatement, deduction or set-off whatsoever". Clause 6.00 of each lease required the lessee to pay or if necessary to reimburse the Lessor all apportioned outgoings as defined in the lease. Clause 16.00 of each lease required the lessee to become and remain a member of a Merchants' Association consisting of the tenants and other occupants of the Centre and to contribute towards the operations of that association an amount of not less than 4 cents per square foot per month of the area of the demised premises. Clause 14.00 of each lease contained provisions relating to default by the lessee and re-entry by the Lessor, c.f. Property Law Act 1958 (Vic.), s.146.

The commercial expectations for the Centre were not fulfilled. It is true to say that the Centre proved to be a financial disaster. A large number of shops remained vacant. The applicants, together with other tenants at the Centre, were unable to make a financial success of the businesses they conducted in shops leased from the Lessor. The applicants were unable to make, and in fact did not make, the payments to the Lessor of the amounts of rent, outgoings and contributions for the Merchants' Association which they were required to make under the terms of their leases. Attempts were made by the Lessor to assist the applicants and other tenants. By a letter in common form dated 20 February 1980 the Developer on behalf of the Lessor wrote to a number of tenants at the Centre, including the lessee applicants, as follows:
"Dear Tenant,

re: Shop No.
Deer Park Shopping Centre

Your Landlord recognizes the difficulties with the initial opening of a new shopping centre and the ability of Retailers to trade at a satisfactory level on commencement - particularly those who are new to shopping centre and perhaps to retailing generally.

In view of this fact and in order to provide retailers at our Deer Park Shopping Centre with an opportunity to establish continuity and development of trading, the Management of the Hersfield Group are prepared to allow you a rental abatement of 50% for a period of twelve (12) months from 27th November 1979, the date that the Centre opened.

We expect that traders will, in their own interests, make every effort to expand their businesses.

A meeting will be held in October/November 1980 between yourselves and our Management so that this Company may assess the level of your business activity at that time to review the abatement based on that activity and decide a repayment program.

As agreed, all outstanding rents from 27th November 1979 are abated by the above amount and the Centre Manager Mr. P. Morrissey, and Mr. E. Donald of this office will contact you regarding payment of the balance of half rent and the outgoings.

We would appreciate your acceptance of these arrangements by providing your signature in the space provided below. A copy is enclosed for your retention.

Yours faithfully,
HERSFIELD DEVELOPMENTS CORPORATION PTY. LTD.

M. M. Anderson,
FINANCIAL CONTROLLER."
There appears to be a latent inconsistency in the terms of the letter. In the second paragraph reference is made to "a rental abatement of 50% for a period of twelve (12) months from 27 November 1979, the date that the Centre opened", while the words used in the fourth paragraph seem to suggest that the "abatement" is in reality a deferred payment to be paid pursuant to a repayment programme decided upon following an assessment of the business activity assessed in October/November 1980. It is not necessary to determine that latent inconsistency for present purposes.

The commercial activity of the Centre did not improve and the applicants were not able to conduct their businesses on a profitable basis. They did not pay rent, outgoings or contributions.

On 1 August 1980 a letter written on behalf of the Lessor was forwarded to Antonio Catalfamo and John Giacchi as follows:
"I hereby confirm the arrangements made between us concerning your rental.

Hersfield Developments Corporation Pty. Ltd., agrees to abate your monthly rent by 100% for the month of July, August and September 1980.

You will be required to pay only your outgoings for those months plus any amounts you can manage against your existing arrears, if any.

The situation will again be reviewed at the end of this period."
This letter makes no reference to repayments of rent "abated" for each of the months July, August and September 1980.

On 23 October 1980 a letter written on behalf of the Lessor was forwarded to Vassilios Collias as follows:
"With reference to our discussions regarding the recent losses suffered by you as a result of robbery, I wish to advise as follows:-

This company will endeavour to assist you in any way that we can, to regain your ability to trade.

As an immediate gesture we will:-

1. Write off 50% of all monies owed to us by you as of 31.10.80.

2. Reduce your rental from $833.37 per month to $216.67 per month commencing on 1.11.80 and continuing until such time as we (Hersfield Developments Corp. Pty. Ltd.) lease space to a major tenant. It is anticipated that this will be some time around February 1981.

3. Reduce your outgoings costs from $273.58 per month to $136.79 per month. Once again this arrangement will be the same as for the rental in terms of time.

As you are aware, I am having further discussions with my Head Office regarding the possibility of further assistance and I will advise you as soon as possible of the result.

I trust that this situation will assist you in your time of trouble and I sincerely wish you good luck."
A further letter dated 31 October 1980 was forwarded to Vassilios Collias as follows:
"Further to my letter of 23.10.80, I wish to advise that, as a further concession, your new rent structure will remain in force until the 31.5.81.

It should be understood that this date may be further extended if the centre has not acquired another major tenant by that time."

Various tenants at the Centre have made allegations that the respondents had "engaged in conduct which contravened the Trade Practices Act" and that they were contemplating taking proceedings in the Federal Court under the provisions of the Act. Some proceedings had been commenced. The Lessor had threatened, and in some cases had commenced, legal proceedings in the County Court against some tenants seeking the recovery of unpaid rent. The Developer continued to explore ways to make the Centre commercially successful. One method adopted was to seek a major tenant to conduct a large retail outlet at the Centre. In order to enable that to be done, a large number of existing shops had to be demolished to enable a sufficiently large area to become available for the major tenant. A number of shops that would be demolished were already leased to tenants and accordingly, those tenants would need to vacate their existing shops and be re-located in other shops at the Centre. On 22 October 1980 a meeting of tenants at the Centre was held and attended by George Herscu and other officers of the Developer and Lessor. Some seventy people attended representing some forty tenants of shops. The meeting was informed of negotiations then underway to attract a major tenant, some names mentioned being Woolworths, Target and K Mart. Lengthy discussions occurred, particularly with respect to proposals for the re-location of shops of some tenants and how that would be effected and at whose cost. By letter in common form dated 31 October 1980 the Developer and the Lessor wrote to a number of tenants in the Centre, including the applicants, as follows:
"This letter is written on behalf of Hersfield Holdings Pty. Ltd. and Hersfield Developments Corporation Pty. Ltd.

You presently occupy shop no. at the Deer Park Shopping Centre under the terms of a lease granted by Hersfield Holdings Pty. Ltd. ("Hersfield") dated

Various allegations and complaints have been made by you or on your behalf in relation to the circumstances surrounding the granting of the Lease.

On 22nd October 1980 a meeting of tenants was held at which Mr Herscu, on behalf of Hersfield, put forward a number of proposals which, if accepted, would resolve the present situation and would obviate the necessity for contesting your various allegations in legal proceedings.

The purpose of this letter is to set out Hersfield's offer in a form which will enable you to accept it and so vary your obligations under the lease.

The offer is as follows:

1. Hersfield shall forgive 50% of all debts (including rent and outgoings) which you owed to it as at 31st October 1980.

2. In the event that any legal proceedings have been commenced against you in respect of your lease, Hersfield shall forthwith discontinue the same and shall not seek payment from you of any legal costs incurred in connection therewith.

3. As at and from 1st November 1980:

(a) the rental payable by you under your lease shall be reduced to $50 per week; and

(b) the outgoings payable by you under your lease shall be reduced by 50%

for a period ending on the date referred to in paragraph 4.

4. The date from which you will be again required to pay the full amount of the rent and outgoings provided in your lease shall be the date upon which a major tenant (i.e. a tenant who leases in excess of 20,000 square feet of floor space) opens for business at the Deer Park Shopping Centre.

5. You will, one month after receiving a written request from Hersfield, deliver up possession of the said shop occupied by you and a surrender of your lease as hereby varied to Hersfield. Hersfield shall, simultaneously, give you possession of a like shop at the Centre under a Lease to be then executed by both parties and containing terms the equal of those then applying to the residue of your lease as hereby varied. Hersfield shall pay all reasonable costs incidental to your relocation.

6. The offer is conditional upon your strict observance of the terms of paragraph 3. In the event that you do not meet your obligations under the lease as hereby varied, then Hersfield shall have the following rights:

(a) to require you to pay the full amount of the rental and outgoings provided for in your lease as if it were not varied;

(b) to take such legal proceedings against you as it may be advised, including matters dealt with in our legal proceedings that may have been discontinued against you under paragraph 2 above and in respect of the part of your indebtedness to Hersfield forgiven under paragraph 1 above.

7. By accepting this offer, you shall automatically release Hersfield and Hersfield Developments Corporation Pty. Ltd. and all of their directors servants and agents (for this purpose Hersfield makes the offer in this letter in part at their request and acts as their agent in securing this release) from all actions suits and demands (whether at common law, in equity, or under any statute - state or federal) which they may now have may have had or may hereafter have in relation to the circumstances surrounding the granting and acceptance of your lease or any claim for damages rescission or any other legal equitable or statutory relief in respect thereof.

If you desire to accept this offer then you may do so by executing the copy of this letter enclosed herein at the place indicated and returning it to the Centre Manager on or before 5th November 1980."

None of the applicants accepted the offer contained in the letter of 31 October. There appears to be a serious discrepancy between that letter and the two letters dated 23 October 1980 and 31 October 1980 respectively forwarded to Vassilios Collias. From subsequent events, it is apparent that neither the respondents nor Mr. Collias relied or acted upon the two letters first set out above, and insofar as it may be material for the purposes of determining the motions before the court, no reliance can be or is placed upon the contents of those two letters.

By letter dated 1l February 1981, the Solicitors for Antonio Catalfamo wrote a letter of demand to the Developer and the Lessor alleging that their client entered into his lease by reason of misrepresentations made by their servants and agents as a result of which he had suffered severe loss and damage. They denied their client owed any amount for rent of the shop, since the loss and damage suffered far exceeded what might otherwise be owing under the lease, and threatened to commence proceedings in the Federal Court seeking damages under s.82 of the Act and an order under s.87 of the Act to vary the terms of the lease by reducing the rent payable to the sum of $2,600 p.a. ($50 per week) with effect from 5 November 1979. In the meantime an offer was made, without prejudice, to pay $50 per week rent with a similar proportionate sum by way of outgoings until the hearing of the proposed application. On 26 February 1981 the Lessor served upon Mr. Catalfamo a fifteen-day notice under Clause 14.01 of the lease relying, inter alia, upon non-payment of rent from March 1979 to February 1981 ($19,510.75) and non-payment of outgoings from April 1980 to February 1981 ($4,173.73). No payment of the arrears was made, but within the fifteen days, on 13 March 1981, the application being No. 42 of 1981 accompanied by a statement of claim, was issued out of the Federal Court seeking damages and a variation of the terms of the lease. The Lessor is the only respondent to that application. An appearance was entered on behalf of the Lessor and on 27 March 1981 the court gave directions concerning the future conduct of the proceedings. The Lessor has not taken action pursuant to the notice under Clause 14.01 of the lease.

By letter dated 13 February 1981 the solicitors for Vassilios Collias, John Dounis and Catherine Dounis wrote a letter of demand to the Developer and the Lessor alleging that their clients entered into the business, and in particular Mr. Collias entered into the lease, as a result of various representations made by their servants and agents as a result of which their clients had suffered severe loss and damage. They denied their clients owed money for rent and stated that in the absence of receiving a satisfactory offer they had instructions to commence proceedings in the Federal Court under the Act seeking damages and an order varying the terms of the lease by reducing the amount of rent payable to the sum of $2,600 p.a. ($50 per week) and to reduce the other monetary obligations by a similar proportion with effect as so varied from 9 July 1979. To protect "the possession until the hearing of the proposed application" of their clients, they forwarded under protest, and on a 'without prejudice' basis, a cheque in the sum of $2,348.91 being rental at the rate of $50 per week to January 1981 ($2,031.66) and for the month of February 1981 ($317.25). Correspondence then followed between the solicitors for the parties with the result that the Lessor refused to accept that cheque and subsequent cheques on the condition claimed and in addition asserted a right to repossession of the shop or any other right arising from breaches of the unvaried lease. In subsequent letters the solicitors for the applicants alleged that officers of the respondent companies had told their clients that unless they did not take an alternative shop at the Centre, the respondents "would take a bulldozer" through the existing shop and also threatened to change the locks on the shop and a notice to quit would be served. On 13 March 1981 the application being No. 44 of 1981, accompanied by a statement of claim, was issued out of the Federal Court seeking damages and a variation of the terms of the lease. The statement of claim contained allegations concerning the "taking of a bulldozer" but no injunction was sought. The application named the Developer, the Lessor and George Herscu as respondents. An appearance was entered on behalf of each respondent and on Friday, 10 April an order was made by consent giving directions concerning the future conduct of the proceedings.

On 6 June 1980 judgment in the County Court in the sum of $4,673.10 and $200.80 costs was entered in default in favour of the Lessor against Golliwog for arrears of rent and other monies owing under the lease granted to Golliwog. The judgment debt was not paid and execution has not been had. In February 1981 negotiations took place between officers of the respondent companies and a director of Golliwog concerning the agreement by which Golliwog would be re-located in another shop at the Centre. The parties disputed whether any agreement was reached, but it is not necessary to determine that dispute for present purposes. Golliwog has taken steps to have the County Court judgment set aside. It has not paid rent, outgoings or contributions since at least November 1980. On 19 March 1981 the application being No. 46 of 1981, accompanied by a statement of claim, was issued out of the Federal Court seeking damages and a variation of the terms of the lease. The application named the Developer, the Lessor and George Herscu as respondents. An appearance was entered on behalf of each respondent and on Friday, 10 April an order was made by consent giving directions concerning the future conduct of the proceedings.

On 6 June 1980 judgment in the County Court in the sum of $2,045.79 and $149.30 costs was entered in default in favour of the Lessor against John Giacchi for arrears of rent and other monies owing under his lease. The judgment debt has not been paid. In February 1981 negotiations took place between officers of the respondent company and Mr. Giacchi, and by letter dated 24 February 1981 written on behalf of the Lessor a fresh offer concerning re-location of his shop was made to Mr. Giacchi. This offer was in similar terms to the offer contained in the letter of 31 October 1981. On 27 February 1981 Mr. Giacchi signed an acceptance of that offer. Mr. Giacchi claims that that agreement was subject to conditions precedent which have not been satisfied and he is therefore not bound by it. It is not necessary to determine that issue for present purposes. Mr. Giacchi has not paid rent, outgoings or contributions since at least November 1980. Although instructions had been given, the application being No. 70 of 1981 was not issued out of the Federal Court until Monday, 13 April 1981. By that application Mr. Giacchi is claiming damages, a variation of the terms of his lease and injunctions.

By the end of the year 1980 and in the early months of the year 1981, Mr. Herscu considered it essential for the future viability of the Centre that a major tenant be attracted to take a lease of shops at the Centre. To enable that to be achieved he considered it essential that the Lessor obtain possession of Shops 23C, 71, 89 and 90 then leased to and occupied by the lessee applicants. Those applicants had not accepted the offers contained in the letters of 31 October 1980 and for practical purposes were not acting on any subsequent agreements. They were making no unconditional payments of rent, outgoings or contributions and, apart from Mr. Collias, were making no payments whatsoever. By remaining in possession of their shops those tenants were preventing the respondents taking the action they considered essential for resuscitating the failing Centre. The Lessor sought legal advice which was subsequently confirmed by a written joint advice by counsel dated 13 March 1981. In substance, the advice sought was whether the Lessor was required to comply with the notice requirements contained in Clause 14 of the leases or the provisions of s.146 of the Property Law Act 1958 as a condition precedent to it determining the leases and re-entering the demised premises. The substance of the advice given was that if there was a sufficient factual foundation to establish that the tenants had repudiated their obligations under their individual leases, the Lessor could accept their repudiations thereby determining the leases and thereafter re-enter the premises as a matter of proprietary right and not pursuant to any express provisions of the lease in question. Alternatively, the Lessor could commence legal proceedings to recover possession following the giving of the requisite notice under Clause 14 of the leases. The Lessor had to determine which of these two courses he desired to take. The difficulties, uncertainties and dangers involved in exercising the power of self-help was referred to in that advice. As a matter of judgment George Herscu decided to act in accordance with the opinions expressed in the joint advice and to accept the repudiation of the leases by the lessee applicants. He gave directions to officers of the Lessor and of the Developer to prepare for the acceptance of the repudiation of the leases by the lessee applicants and to re-enter the shops concerned. There then followed what has been described as a military-type operation planned and put into effect with great secrecy and resolution. Notices of acceptance of repudiation of the leases were prepared. They were in common form with necessary variations having regard to the particular facts affecting each lease. The form of the notices can be illustrated by reference to the notice affecting Shop 23C leased to Antonio Catalfamo. The notice was headed as follows:
"NOTICE OF ACCEPTANCE BY HERSFIELD HOLDINGS PTY. LTD. OF THE REPUDIATION BY ANTONIO CATALFANO OF A DEED MADE BETWEEN HERSFIELD HOLDINGS PTY. LTD. AND ANTONIO CATALFAMO DATED THE 5TH NOVEMBER, 1979."
It was addressed to Antonio Catalfamo and identified the shop. Lengthy recitals were then set out. These referred to the lease and certain terms of the lease, including the covenants to pay rent, to pay outgoings and to pay contributions. Covenants contained in other clauses of the lease were recited also. The recitals alleged that those covenants had been broken and particulars were given. Some of those particulars are set out:
"C. That the abovementioned covenants and/or agreements have been broken and the particular breaches complained of are:-

(a) That the Lessee has failed to pay to the Lessor the monthly rental notwithstanding that the same became due and payable after the commencement date.

PARTICULARS

Balance February 1980 Rent 103.29
Balance June 1980 Rent 688.72
October 1980 Rent 793.00
Balance November 1980 Rent 691.49
Balance December 1980 Rent 1384.13
January 1981 Rent 1586.00
Balance February 1981 Rent 1436.00
March 1981 Rent 1586.00
April 1981 Rent 1586.00

$9854.63

(b) That the Lessee has failed to pay the Lessor the proper monthly proportion of apportionable outgoings as computed and notified by and/or requested by the Lessor.

PARTICULARS

Balance January 1980

Outgoings .37

February 1980 Outgoings 396.81

March 1980 Outgoings 396.81

Balance April 1980

Outgoings .40

May 1980 Outgoings 396.81

June 1980 Outgoings 396.81

July 1980 Outgoings 396.81

August 1980 Outgoings 396.81

Balance Outgoings 1979/1980

at 26th August, 1980 39.86

September 1980 Outgoings 462.95

October 1980 Outgoings 462.95

Balance November 1980

Outgoings 231.48

December 1980 Outgoings 462.95

January 1981 Outgoings 462.95

February 1981 Outgoings 462.95

March 1981 Outgoings 462.95

April 1981 Outgoings 462.95

$5,893.62

. . .

(f) That the Lessee failed to contribute towards the said Merchants Association and pay the levies properly required by it.

PARTICULARS

March 1980 Contribution 63.49

April 1980 Contribution 63.49

May 1980 Contribution 63.49

June 1980 Contribution 63.49

July 1980 Contribution 63.49

August 1980 Contribution 63.49

September 1980 Contribution 63.49

October 1980 Contribution 63.49

November 1980 Contribution 63.49

December 1980 Contribution 63.49

January 1981 Contribution 63.49

February 1981 Contribution 63.49

March 1981 Contribution 63.49

April 1981 Contributions 63.49

$888.86"

Particulars were given with respect to the other covenants referred to earlier in the recitals. The particulars set out in paragraph C.(a) were based upon the abatement of rent referred to in the letters of 20 February 1980 and 1 August 1980. The recitals then referred to those two letters, Recital D, and then continued:
"(c) The deferred abated rental amounting in all to $11,884.13 and made up as follows is now due and payable by the Lessee but is unpaid.

PARTICULARS

November 1979 104.28
December 1979 793.00
January 1980 793.00
February 1980 793.00
March 1980 793.00
April 1980 793.00
May 1980 793.00
June 1980 793.00
July 1980 1586.00
August 1980 1586.00
September 1980 1586.00
October 1980 793.00
November 1980 677.85

$11884.13"

The recitals then referred to the letter from the applicants' solicitors dated 16 February 1981 and the statement that the lessee did not intend to pay future instalments of rent and outgoings as and when they fell due, but in lieu to pay $50 per week together with a similar proportionate sum by way of outgoings before the hearing of the application in the Federal Court, which was proposed to be issued, and that as a consequence the Lessor anticipated future recurring breaches of the lease. The recitals then referred to the application issued out of the Federal Court on 13 March 1981 and the notice of default under Clause 14.01 of the lease and the non-payment of the sum therein referred to, and then continued:

"THE LESSOR NOW HEREBY GIVES YOU THE LESSEE NOTICE THAT:

1. Each of the matters referred to in Recitals C, D, E, F and G constitute a repudiation of your obligation as provided in the Lease; and also, of the relationship between landlord and tenant provided for therein; both of such a nature extent and degree as to make the continuation of the Lease and the relationship unacceptable to the Lessor.

1. The Lessor elects to and hereby does accept your repudiation of the obligations as provided for in the Lease; and, of the relationship between you as tenant and it as landlord; and on the basis thereof hereby determines the Lease and your right to possession of the premises as tenant thereunder.

1. Such determination is without prejudice to the Lessor's rights to sue you for damages in respect of the said matters referred to in the said Recitals and for your wrongful repudiation of the Lease.

1. The Lessor hereby demands and requires that you forthwith quit and deliver up possession of the premises.

1. That it is the intention of the Lessor to forthwith enter upon and take possession of the premises."

The notice was dated 9 April 1981 and was served on Antonio Catalfamo at his shop at the Centre at about 12 noon on Saturday, 11 April 1981.

A similar notice dated 9 April 1981 was prepared and directed to Vassilios Collias. The rent alleged to be unpaid on the basis of the abatement arrangements being in operation extended from September 1980 to April 1981 and amounted to $5,947.04. The outgoings alleged to be unpaid extended from a balance for the year 1979-1980 and from September 1980 to April 1981 and amounted to $3,149.65. The contributions alleged to be unpaid extended from July 1980 to April 1981 and amounted to $375.20. The deferred abated rental alleged to be owing extended from November 1979 to November 1980 and amounted to $4,966.83. The recitals included a reference to the proceedings in the Federal Court being No. 44 of 1981. The notice was served on Vassilios Collias at his shop in the Centre at about 12 noon on Saturday, 11 April 1981. He did not understand the nature of the notice. He attempted unsuccessfully to contact his solicitors before he left his shop later that afternoon.

A similar notice, the date of which is not certain, was directed to Golliwog. The rent alleged to be unpaid on the basis of the abatement arrangements being in operation extended from January 1980 to April 1981 and amounted to $6,665.53. The outgoings alleged to be unpaid extended from January 1980 to April 1981 and amounted to $4,160.34. The contributions alleged to be unpaid extended from December 1979 to April 1981 and amounted to $742.09. The deferred abated rental alleged to be owing extended from November 1979 to November 1980 and amounted to $4,025.35. The recitals included a reference to the proceedings in the Federal Court being No. 46 of 1981. The notice was served on Golliwog at its registered office, 5 Palmer Street, Jolimont, at about 5 p.m. on Friday, 10 April 1981.

A similar notice dated 9 April 1981 was directed to John Giacchi. The rent alleged to be unpaid on the basis of the abatement arrangements being in operation extended from March 1980 to April 1981 and amounted to $3,007.98. The outgoings alleged to be unpaid extended from April 1980 to April 1981 and amounted to $2,349.49. The contributions alleged to be unpaid extended from September 1980 to April 1981 and amounted to $182.08. The deferred abated rental alleged to be owing extended from November 1979 to November 1980 and amounted to $3,552.98. The notice was served on Mr. Giacchi at his shop in the Centre at about noon on Saturday, 11 April 1981.

On the afternoon, evening and night of Saturday, 11 April through to the morning of Sunday, 12 April persons acting at the direction of the respondents locked the entrances to the Centre and proceeded to break into and remove the contents of the shops occupied by the lessee applicants. The shops were emptied out. Fittings and stock in trade were removed and placed in storage. Walls of the shops were removed and the shops were rendered unusable for the businesses theretofore carried on. Armed security guards accompanied by large dogs patrolled the Centre preventing unauthorized persons, including some of the lessee applicants, from entering the Centre or their shops. There was a serious threat that the actions taken on behalf of the respondents would lead to physical clashes and possible violence and were likely to cause a breach of the peace. During the course of the night and early morning some of the lessee applicants came to the Centre accompanied by police officers, but the latter claimed that since the matter was a civil one they could do nothing. Reference should be made to s.207(1) and (3) of the Crimes Act 1958 (Vic.):
"207.(1) No person except where entry is given by the law shall make an entry upon land in a manner likely to cause a breach of the peace or reasonable apprehension of breach of the peace. Except as aforesaid it is immaterial whether he is entitled to enter upon the land or not.

. . .

(3) Every person who is guilty of a contravention of this section shall be guilty of a misdemeanour and liable to imprisonment for a term of not more than one year or to a fine of not more than $1,000 or to both such fine and imprisonment."
This section had been referred to in the joint advice given to the Lessor.

On Sunday, 12 April 1981 on the ex parte application of the applicants the court granted interim injunctions to operate until 4.15 p.m. on Wednesday, 15 April, in substance restraining the respondents from taking further steps to recover possession of the shops. On Monday, 13 April 1981 the Lessor forwarded a letter to each of the lessee applicants which, with necessary variations, was in the following terms:
"Up until 11 April 1981 you were a tenant of the abovementioned premises pursuant to the terms of a Deed of Lease dated the 5th day of November 1979 granted by this Company. On that date a Notice was served upon you whereby you were informed that the Company had elected to treat your repudiation of basic tenant's obligations as determining the Lease.

Subsequent to the service upon you of the Notice, the Company entered upon and took possession of the premises as owner.

All property which was in and upon the premises when the Company took possession of the same has been removed therefrom. Such property is available for collection by you; or by any other person who is entitled to it. If you contact Mr Bill Burke, he will direct you to the area where the property is stored and you can collect the same or make whatever arrangements are appropriate for its removal. You may contact Mr Burke by telephoning him on 62 4721 during ordinary office hours.

The Company makes no claim whatsoever to the property. It was necessary to remove the property from the premises to ensure the safety thereof.

You will recall that offers were made to you in relation to, inter alia, rent reduction and re-location within the Centre in a letter dated 31st October 1980. A copy is attached hereto. A major tenant has now been obtained.

The Company is still prepared to make available to you premises within the Centre upon substantially the same terms as were contained in the original offer. The word 'substantially' is used because in the events which have happened, certain terms of the original offer are no longer relevant. If you are interested, we would be pleased to discuss the same with you or your solicitors."

On Wednesday, 15 April the court commenced to hear seven motions. In each of application No's. 42, 44 and 46 of 1981 the applicants moved the court for orders that the respondents to those applications were guilty of contempt of court in that by forcibly entering the shop premises referred to in the various statements of claim, taking possession thereof and of the property and contents contained therein, and by damaging the same, were in contempt of court. In each of the four applications the applicants moved the court for interlocutory injunctions similar to the then existing interim injunctions and also for mandatory injunctions requiring the respondents forthwith at their cost and expense to reinstate the four shops respectively to the condition they were in at the close of business on 11 April 1981 and return all the property, including any sums of money, goods, stock, fixtures, fittings and equipment of the applicants to the four shops respectively and install the same therein.

The hearing of the motions continued on 22 April, 23 April, 24 April and 27 April when the court reserved its decision. On 15 April the court made certain interlocutory injunctions designed to maintain the then existing position until the hearing and determination of the four motions for injunctions. On 24 April the respondents gave notices of motion which, in the form as amended by leave of the court, sought interlocutory injunctions restraining the applicants from entering upon or interfering with the respondents' occupation and possession of the respondents' four shops, the subject of the applications. Despite objections by counsel for the applicants, the court determined that that motion be considered concurrently with the other seven motions.

The parties relied upon affidavits sworn by a large number of persons and the numerous exhibits to those affidavits. Two deponents only were cross-examined on their affidavits, namely George Herscu and Anthony Carnovale. The court does not find it necessary to express any opinion affecting the credibility of either of those witnesses, nor for that matter affecting any of the other deponents.

The court considers first the three motions for contempt. They do not involve interlocutory matters. The applicants are seeking penalties to be imposed on the respondents and the appropriate onus of proof is that applicable to criminal proceedings. The relevant facts are not in dispute. The substance of the claim made by the applicants can be stated. There are proceedings currently before the Federal Court. The relief sought in those proceedings includes orders that the terms of the leases be varied. In order to give effect to any orders so made, the subject matters must remain in existence and the premises demised to the applicants must remain in their possession. The respondents, with full knowledge of the proceedings in the Federal Court, deliberately and in defiance of those proceedings, entered upon the demised premises, took possession of the shops and thereby deprived the applicants of their lawful possession.

For the purposes of deciding this matter, it is not necessary to determine whether the applicants are likely to succeed in the claims made in their applications. Nor is it necessary to determine whether the re-entry by the Lessor was lawful or not. George Herscu, as the managing director of the Developer and the Lessor, knew of the legal proceedings in the Federal Court but was determined on the course of self-help to secure the area necessary to attract a major tenant to the Centre. The issue for determination is whether that conduct constitutes contempt of court.

Section 31 Federal Court of Australia Act confers an express power upon the Federal Court to punish contempts of its power and authority. The motions for contempt are brought under that section and 0.40 r.5 of the Rules of the Federal Court.

The contention made on behalf of the applicants has a simple attractiveness. It was submitted that the conduct constituted a criminal contempt in that it consisted of acts done outside the court which were intended or likely to interfere with or obstruct the fair administration of justice, see Halsbury's Laws of England, 4 Ed. para. 7, p.7. Reference was made to James v. Robinson (1963) 109 C.L.R. 593 at p.602 where a distinction is drawn between contempts in which the interference is with the administration of justice generally and contempts in which the interference has only a tendency to interfere with the fair trial of a particular case proceeding in the court. Different considerations apply with respect to the two classes. The present motions are with respect to the second class, and it is for that reason that there is no motion in Matter No. 70 of 1981 since those proceedings had not been commenced at the time of the forcible entry.

Forcible entry of itself, and in the absence of proceedings in a court affecting the land the subject of the entry, does not constitute a contempt even though it may constitute a criminal offence. It is a course of conduct which is not to be encouraged. No suggestion that such conduct could constitute a contempt was made in a powerful and wide-ranging judgment expressed by Lord Denning M.R. in McPhail v. Persons, Names Unknown (1973) Ch.447 at pp.456-460.

In Brambles Holdings Ltd. v. Trade Practices Commission (1980) 32 A.L.R. 328 Franki J. had to consider whether the Commission, by giving a notice under s.155 Trade Practices Act in relation to matters the subject of proceedings in the Federal Court, had committed a contempt of court. His Honour held that the notice was served for the purpose of obtaining information from the applicant in those proceedings which information could not be obtained by any process in the court because discovery and interrogatories were in law denied to the Commission. At pp.338-9 his Honour said:
"The function of the court is to determine issues according to law and the evidence presented to it and not to proceed in an inquisitorial manner to endeavour itself to ascertain the truth. It is clear, therefore, that the giving of the notice, which referred to the penalty provided by s.155(5), was an attempt to achieve by threats an advantage in proceedings already before the court which could not otherwise have been obtained and therefore, in my opinion, was a clear interference with the court."
His Honour then referred to a number of authorities, and at p.340 said:
"In my opinion the issue of the notice in this case was a clear interference with the ordinary course of justice. It was a clear attempt to procure an advantage by threatening a party with criminal proceedings if it did not do something which the law did not require it to do."

The essence of that case was that the Commission was attempting to obtain material which it could use in the proceedings before the court by a method which was lawful under s.155 of the Act, but which could not be compelled to be given by general law under the procedures of the court. To that extent the conduct was directed to the seeking of an order of the court in current proceedings by doing something whereby the court could be influenced in making its order by the respondents adopting methods and threats outside the powers of the court. This clearly was intended or was likely to interfere with the fair administration of justice and the power and authority of the court.

A similar result was reached by the Court of Appeal of the Supreme Court of New South Wales in Registrar of the Supreme Court v. McPherson (1980) 1 N.S.W.L.R. 688. In that case potential witnesses in proceedings before the Supreme Court destroyed documents relevant to issues arising in those proceedings at a time before subpoenas had been served on them. For present purposes it is sufficient to refer to the following parts of the headnote to that case:
"Held: (By Moffit P and Hope JA)

(1) (a) A court can perform its duty, to make a decision in a case in the exercise of its jurisdiction, only if it has access to relevant evidence and relevant documents.

(b) In aid of doing so, it has the power to compel evidence to be given, or documents to be produced to the court, so that they can be appropriately inspected to determine whether they should be available for use in the proceedings.

(c) By the subpoena, as with compelling of witnesses to answer questions, rights of privacy are invaded; but, without these compulsive powers, the processes of the law could not operate.

(d) To interfere with the exercise of these powers is to interfere with the administration of justice.

(e) In these circumstances, it is not to the point that the reason, or a reason, for preventing documents from being produced is to preserve their confidentiality.

(f) It is for the court, not the document holder, to decide what use shall be made of the document.

(2) (a) If a person who has been served with a subpoena to produce documents objects to production, and there is not a sufficient connection with the proceedings in relation to which the subpoena is issued, the court should decline to permit inspection.

Waind v. Hill and National Employers' Mutual General Association Ltd (1978) 1 NSWLR 372, at p. 382 et seq, followed.

(b) A party who is permitted to inspect a document is not entitled to make use of knowledge so acquired for purposes other than in connection with the proceedings. The court has power to make appropriate orders, or to exact undertakings, or to limit inspection, eg, to the legal representatives of a party, in order to ensure that a document to be inspected is not used for purposes other than in relation to the proceedings.

Church of Scientology of California v. Department of Health and Social Security (1979) 1 WLR 723; (1979) 3 A11 ER 97 and Kimberley Mineral Holdings Ltd (In Liq) v. McEwan (1980) 1 NSWLR 210, followed.

(3) (a) In the present case, the document destroyed had such an obvious relation to the proceedings in relation to which the subpoena was likely to be issued, that it was to be expected that the Court would have required, in answer to an appropriate subpoena, immediate production to, and inspection by, the legal representatives of the petitioners. It was equally obvious that the destruction of the document was intended to prevent this from happening.

(b) It should be inferred, therefore, that at least the dominant motive of the first defendant in destroying the document was to prevent its production to the Court, and its use thereafter in the proceedings initiated by the petitioners.

Apted v. Apted and Bliss (1930) P 246, at pp 262, 263 and Coward v. Stapleton (1953) 90 CLR 573, at p 579, applied.

Attorney-General v. Butterworth (1963) 1 QB 696, at p 723, referred to.

(4) (a) The non-production of the document had an inherent tendency, as a matter of practical reality, to interfere with the administration of justice.

(b) In these circumstances, (i) the fact that there were other copies of the document extant, and (ii) the intention or motive of the first defendant, whatever it was, were alike irrelevant.

Attorney-General v. Butterworth (1963) 1 QB 696, at pp 723, 725, 726, followed.

(5) (a) In the case of interference with a witness, or with the evidence to be given by him, there is no limitation, as a matter of policy or in principle, which requires that, before contempt can be found, the witness must already have been subpoenaed to give evidence.

(b) Equally, if the requisite knowledge and purpose in doing the relevant act exist, there is no reason why the destruction of a document to prevent its production in pending proceedings should not be found to be contempt, simply because no subpoena had been issued prior to the destruction."

The present motions involve a very different type of case. The essence of the submission made is that the commencement of proceedings in the Federal Court operates as an order that the respondents must not do anything which would affect adversely the subject matter of those proceedings. The submission involves a proposition that the issue of the proceedings operates as an order for the preservation of property under 0.25 r.2 of the Rules of Court or as a de facto injunction. This cannot be so, since the whole of the powers of the court to grant interim or interlocutory injunctions, either under s.80 of the Act or under s.23 Federal Court of Australia Act or under 0.25 r.1 of the Rules of Court or a preservation order under 0.25 r.5 would be unnecessary. Generally, see Austman v. Bjarnason (1932) 3 W.W.R. 20 (Sasketchewan Court of Appeal) and by analogy Thomson v. Times Newspapers Ltd. (1969) 1 W.L.R. 1236 per Salmon LJ. at 1240:
"I cannot, for myself, think why the fact that he has issued a writ for libel should preclude this newspaper, or any other, from making any further comment about him which they may think they are justified in making or which perhaps they may think it is their duty to make. It is a widely held fallacy that the issue of a writ automatically stifles further comment. There is no authority that I know of to support the view that further comment would amount to contempt of court. Once a newspaper has justified, and there is some prime facie support for the justification, the plaintiff cannot obtain an interlocutory injunction to restrain the defendants from repeating the matters complained of. In these circumstances it is obviously wrong to suppose that they could be committing a contempt by doing so. It seems to me to be equally obvious that no other newspaper that repeats the same sort of criticism is committing a contempt of court. They may be publishing a libel, and if they do so, and they have no defence to it, they will have to pay whatever may be the appropriate damages. But the writ does not, in my view, preclude the publication of any further criticism: it merely puts the person who makes the further criticism on risk of being sued for libel; and he takes the same risk whether or not there has been any previous publication."
See also Gabriel v. Lobban (1976) V.R. 689.

In my opinion the conduct of the respondents was not intended, nor was it likely, to interfere with or obstruct the fair administration of justice. The respondents have taken risks. They had been warned of the risks involved in exercising a forcible entry. They may have committed a criminal offence. If the leases had not been validly terminated, in all probability they would be liable to pay exemplary or punitive damages to the applicants. In addition, the applicants may obtain mandatory injunctions against the respondents. Those risks remain the same irrespective of the existence or otherwise of legal proceedings affecting the land at the time of the forcible entry. The powers and authorities of the court have not been affected by the conduct of the respondents.

During his submissions, counsel for the applicants referred to a large number of factors which he contended were relevant to whether the conduct constituted contempt. I have considered all those matters which, in essence, go to the extent and nature of the contempt if the conduct constituted contempt, and for that reason are not referred to in detail.

I am not satisfied that the respondents or any of them have committed a contempt of court, and accordingly the orders sought by the three motions for contempt are refused.

The court considers next the four motions for interlocutory injunctions. The power to grant injunctions of the type sought is not based on s.80 Trade Practices Act, but on s.23 Federal Court of Australia Act. For the reasons expressed in George Macgregor Auto Service Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd. (Federal Court of Australia V.G. No. 136 of 1980, 20 November 1980, Northrop J., unreported), the court has a power to make the orders sought including the mandatory injunctions. In the same case, the principles to be applied in determining whether interlocutory injunctions should be granted are discussed and I adopt and apply the principles therein referred to in considering the present motions. In particular, I refer to what was said by Lush J. in Slater Walker Superannuation Pty. Ltd. v. Great Boulder Gold Mines Ltd. (1979) V.R. 107 at p.110 and approved by the Full Court of the Supreme Court of Victoria in the Magna Alloys case, now reported, Magna Alloys and Research Pty. Ltd. v. Coffey (1981) V.R. 23, at p.28:

"The weight to be given to the various considerations shown by the authorities to be relevant will vary from case to case. All the authorities say in one way or another that the plaintiff must show that he has a chance of success before he will be granted an interlocutory injunction. The authorities refer to the use of the injunction for the purpose of maintaining the status quo, or establishing or maintaining a state of affairs which is on the balance of convenience appropriate to be maintained until the trial. They refer to avoiding irreparable harm to the plaintiff. There will be situations in which the plaintiff cannot expect to be granted an injunction unless he can show that he can prove positively the existence of his rights and the infringement of them. There will be other situations in which, though the plaintiff's proof of his rights or the infringement of them is not strong, an injunction may be granted because to withhold it would do the plaintiff irreparable harm, while to grant it would not greatly injure the defendant. The possible variety of situations is unlimited."

In the present cases there is evidence and material contained in the affidavits filed on behalf of the applicants which, if accepted at the trial of the proceedings would establish a contravention by the respondent companies of s.52 and s.53A of the Trade Practices Act and conduct by George Herscu on aiding, abetting, counselling or procuring those companies in that contravention, see s.80 of the Act. There is evidence also that the applicants have suffered loss or damage by that conduct and could thereby recover the amount of the loss and damage under s.82 of the Act. Likewise, the lessee applicants could obtain orders varying the terms of the leases under s.87 of the Act. The evidence and material contained in the affidavits filed on behalf of the respondents deny the conduct alleged to be in breach of s.52 and s.53A of the Act. It is not necessary for the court to determine on the hearing of these motions where the truth lies. It is sufficient to say that for present purposes there exists the factual basis on which the claim is made and the questions of law arise. For present purposes I find that the lessee applicants owed to the Lessor the monies referred to in the various notices of acceptance of repudiation of leases. Likewise, in my opinion, the fact that the notices referred to other grounds which were not expressly established for the purpose of the hearing of these motions does not affect the validity of those notices if otherwise they are valid and effective, see by way of analogy Gair v. Smith (1964) V.R. 814.

Counsel for the applicants contended that under 0.25 r.2 of the Rules of Court, the court should make a preservation order preserving the property, being the shops, on the basis that they constituted property under that rule. It was contended further that in considering whether to make such an order the court did not need to be satisfied that the applicants had made out a prima facie case in the sense necessary for obtaining an interlocutory injunction, nor need the court consider the balance of convenience in deciding whether an order should be made or not, Johnson v. Tobacco Leaf Marketing Board (1967) V.R. 427.

In my opinion, that rule and those principles have no application to the facts found for the purposes of these four motions. The power exercised by courts of equity to make preservation orders existed long before the Judicature Acts and the Rules of Court corresponding to 0.25 r.2, yet very few authorities were cited where that power was exercised. Reference was made to cases such as Daniel v. Ferguson (1897) 2 Ch. 27, Von Joel v. Hornsey (1895) 2 Ch. 774, Strelley v. Pearson (1880) 15 Ch.D. 113 and Steamship New Orleans Co. v. London Provincial Marine and General Insurance Co. (1909) 1 K.B. 943 where mandatory orders of various kinds were made.

I am not persuaded that 0.25 r.2 can be used to support the applicant's claim. If that rule applied, most cases where an applicant sought an interlocutory injunction would be based upon that rule and not on s.80 Trade Practices Act or s.23 Federal Court of Australia Act or equivalent powers in the State Supreme Courts. This is not the case. Novelty of an argument does not mean that it is necessarily wrong, but great caution should be exercised before departing from a long-established practice. In the present case the applicants are seeking remedies conferred by the Trade Practices Act. The relevant remedy relates to the variation of the leases. The subject matter of the proceedings is the conduct of the respondents and the remedies flow from that conduct. In my opinion, the demised premises, or rather the lessee applicants' rights of property in the demised premises, are not to be considered property for the purposes of 0.25 r.2(1). The proceedings do not concern that property within the meaning of the rule. The court does not accept the submission and refuses to make an order under 0.25 r.2.

As a first step the applicants must establish a prima facie case in the requisite sense. To do this they must establish that the forcible entry by the respondents constituted a breach of the terms of the leases. This is not a case where the Lessor relies upon a failure to comply with a notice of default under the lease. It is a case where the respondents claim that by their actions the lessee applicants have repudiated their obligations under the leases, that the Lessor has accepted their repudiation and has exercised its proprietary right to take possession of the shops.

The applicants, in their affidavits, have denied they are in breach of their obligations to pay rent, outgoings and contributions. As justification of that denial they have claimed that they have a claim for damages against the respondents which exceeds the amount of payments otherwise payable under the leases and that in any event they are entitled to a variation of the terms of the leases to reduce the amount of rent to an amount determined by the applicants. Only one lessee applicant has tendered some payment of that lesser amount; the other lessee applicants have not even tendered the reduced amount. By way of comment, it should be noted that by not paying the amounts of rent, outgoings and contributions provided by the terms of the leases the lessee applicants have engaged in a form of self-help outside legal proceedings. Such an action of self-help is not to be encouraged by the Court. The self-help has extended over a lengthy period from November 1979 to April 1981. The lessee applicants have made it clear they intend to continue to engage in that form of self-help. They have ignored and are ignoring their obligations under the leases. Antonio Catalfamo has not complied with the Clause 14.01 notice of default. In my opinion, for the purposes of these motions, I am satisfied that by their actions the lessee applicants are in breach of their obligations under the leases and have shown an intention of repudiating those obligations and an intention to continue to repudiate those obligations.

During the course of the hearing of the motions, lengthy and interesting submissions were put on the question of whether a claim for unliquidated damages exceeding the amount of the defaults under the leases prevented the Lessor from relying upon the lessee applicants' defaults constituting repudiations. Put another way, the issue was whether the possible existence of an equitable set-off could be used to counter the inference to be drawn that the conduct by the lessee applicants constituted a repudiation of their obligations. Arguments were put to the effect that a set-off, whether at common law or statute, or an equitable set-off, were matters of procedure and arose only against a person who had brought proceedings in a court. In the present case the respondents have not brought legal proceedings and therefore it was submitted that no claim for a set-off was applicable or effective. Special provisions apply with respect to actions to recover rent by way of distress and where a tenant seeks relief against forfeiture or where a mortgage exercises a power of sale against default. In the latter two cases if the relief is granted it is granted only if the amount in dispute is paid into court, see Division 5 of Part (V111) Supreme Court Act 1958 (Vic.) and Inglis v. Commonwealth Trading Bank (1972) 126 C.L.R. 161.

For the purposes of these motions I am not satisfied, in the requisite sense, that the lessee applicants are able to rely upon any claim of set-off whether by way of their claim for damages or their claim for variation of the terms of the lease.

Likewise, for the purposes of these motions I am not satisfied, in the requisite sense, that the applicants have established a sufficient case that the Lessor could not accept the repudiation by the lessee applicants, see Dimond v. Moore (1931) 45 C.L.R. 159 and Highway Properties Ltd. v. Kelly Douglas & Co. Ltd. (1971) 17 D.L.R. (3d) 710.

Likewise, for the purposes of these motions I am not satisfied, in the requisite sense, that the applicants have established a sufficient case that the respondents were not entitled to take possession of the shops and for that purpose to remove the property of the respondents, Hemmings v. The Stoke Poges Golf Club Ltd. (1920) 1 K.B. 720.

During the hearing of these motions, as well as the motions for contempt, a large number of authorities were cited and relied upon by counsel for all parties. It is important that a decision on the interlocutory matters be given as speedily as possible. In the time available I have been unable to state my reasons as fully as I would have liked, or to support them by express reference to the authorities referred to in the course of argument. To assist all interested, I append to these reasons a list of the authorities cited or referred to during the course of the hearing. It is sufficient to say that I have considered the submissions and the authorities cited and am not satisfied, in the requisite sense, that the applicants have made out a prima facie case that the respondents took possession of the leases in breach of the terms of the leases. Accordingly, the orders sought in the motions by the applicants for interlocutory relief are refused.

In these circumstances it is not necessary to consider the question of the balance of convenience, the Magna Alloys case (1981) V.R. 23.

However, in case the matter goes further, I should state that on the balance of convenience I would refuse to grant the interlocutory injunctions sought. These opinions are expressed on the basis that the applicants have made out a prima facie case, in the requisite sense. In the exercise of discretion I rely upon the facts that the lessee applicants have not paid their obligations under their leases for a long period of time and are refusing to pay those amounts in the immediate future. The applicants delayed a long time before commencing the proceedings in the Federal Court. The applicants have few assets and if, subsequently, they are ordered to pay damages the order is likely to remain unsatisfied. The business of the applicants have not been successful financially. The Centre has not been a financial success. It is not likely that in the immediate future there will be any improvement in the commercial activities of the businesses being conducted by tenants at the Centre and the business of the respondents at the Centre unless drastic steps are taken to attract more customers. The respondents are planning to attract more customers to the Centre by leasing a large area to a major tenant. Final agreement has almost been reached. They cannot do this unless they have possession of the four shops. Other tenants have agreed to be re-located, and on the facts of this case the interests of all tenants at the Centre are to be considered in the exercise of the discretion. The respondents have taken physical possession of the shops, and although a party should not gain any benefit from his unlawful acts, the fact of possession remains. To be effective, any injunctions granted would need to be mandatory and there is no probability that orders of that kind would assist the applicants to any real extent. The granting of injunctive relief is discretionary, and for present purposes I am assuming that the entry of the respondents into the shops was unlawful. The injunctive relief sought by the applicants apparently is sought on the basis that the terms of the lease be varied by reducing the amount of rent to be paid. That, likewise, is a discretionary matter. On the assumption made that the applicants would be entitled to damages, and probably exemplary damages, I am unable to say that on the material presently before the court there is a likelihood that the terms of the leases would be varied as sought. Certainly, I am unable to say that the court should grant the interlocutory injunction on the terms that the applicants pay rental at an amount determined by them and being far less than the amount specified in the leases. In all the circumstances, at this stage of the proceedings, the balance of convenience is in favour of the respondents.

There remains for consideration the motions for injunctive relief against the applicants. In an appropriate case the court has the jurisdiction and power to grant such an injunction, Firona Pty. Ltd. v. Hersfield Holdings Pty. Ltd. (Federal Court of Australia, Smithers J., 13 February 1981, unreported). On the material before me, I am not prepared to make the orders sought. The respondents have not yet filed defences in the proceedings. No cross-claim has been made against the applicants. In those circumstances I am not satisfied that at the present time the court has power to make the orders sought. Further, the orders sought are not based on s.80 Trade Practices Act. The respondents seek quia timet injunctions based upon threatened trespass. On the evidence I am not satisfied that there is a real probability of trespass by the applicants, and that this trespass is imminent or that the applicants will cause substantial damage to the property of the respondents, Grasso v. Love (1980) V.R. 163.

In conclusion, I express appreciation for the calm, careful and extremely competent submissions made by counsel in what was a complicated, difficult and volatile matter, highly charged with emotion which could have clouded the real issues for determination and made the determination of the issues so much more difficult.

In the result the following orders are made:

Application No. V.G. 42 of 1981:

1. Orders sought in applicant's motion for contempt of court refused with costs to be taxed.

2. Orders sought in applicant's motion for interlocutory injunctions refused with costs to be taxed.

3. Orders sought in respondent's motion for interlocutory injunctions refused with costs to be taxed.

Application No. V.G. 44 of 1981:

1. Orders sought in applicants' motion for contempt of court refused with costs to be taxed.

2. Orders sought in applicants' motion for interlocutory injunctions refused with costs to be taxed.

3. Orders sought in respondents' motion for interlocutory injunctions refused with costs.

Application No. V.G. 46 of 1981:

1. Orders sought in applicant's motion for contempt of court refused with costs to be taxed.

2. Orders sought in applicant's motion for interlocutory injunctions refused with costs to be taxed.

3. Orders sought in respondents' motion for interlocutory injunctions refused with costs to be taxed.

Application No. V.G. 70 of 1981:

1. Orders sought in applicant's motion for interlocutory injunctions refused with costs to be taxed.

2. Orders sought in respondents' motion for interlocutory injunctions refused with costs to be taxed.

LIST OF AUTHORITIES CITED OR REFERRED TO DURING HEARING

Absolom v. Knight (1743) Barnes 450; 94 E.R. 998
Andrew v. Hancock (1819) 1 Brod. & B. 37; 129 E.R. 637
Ansett Transport Industries (Operations) Pty. Ltd. v. Halton (1979) 25 A.L.R. 639
Air Express Ltd. v. Ansett Transport Industries (Operations) Pty. Ltd. (1981) 55 A.L.J.R. 107
Associated Newspapers Ltd. v. Bancks (1951) 83 C.L.R. 322
Attorney-General v. Butterworth (1963) 1 Q.B. 696
Attorney-General (N.S.W.) v. John Fairfax & Sons Ltd. (1980) 1 N.S.W.L.R. 362
Attorney-General (N.S.W.) v. Willesee (1980) 2 N.S.W.L.R. 143
Austman & Oddson v. Bjarnason (1932) 2 W.W.R. 20 (Saskatchewan Court of Appeal)
Bayview Quarries Pty. Ltd. v. Castley Development Pty. Ltd. (1963) V.R. 445
Brambles Holdings Ltd. v. T.P.C. (1980) 32 A.L.R. 328
British Anzani v. International Marine Management (1979) 3 W.L.R. 451
Brown and Benbow v. Jam Factory Pty. Ltd. and L. J. Hooker (Vic.) Ltd. (Unreported: VG No. 16 of 1980, Fox J. 26 March 1981, Melbourne)
Burgow v. Hornsey (1895) 2 Ch.
Butcher v. Poole Corporation (1942) 2 All E.R. 572
Campbell v. Payne (1953) 57 S.R. (N.S.W.) 537
Cannon v. Wood (1837) 2 M.& W. 500; 150 E.R. 1243
Chapman v. Honig (1963) 2 Q.B. 502
Daniel v. Ferguson (1891) 2 Ch. 27
Decro-Wall International S.A. v. Practitioners in Marketing Ltd. (1971) 1 W.L.R. 361
Dimond v. Moore (1931) 45 C.L.R. 159
Edward Ward & Co. v. McDougall (1972) V.R. 433
Federal Commerce & Navigation Co. Ltd. v. Molena Alpha Inc. (1979) A.C. 757
Firona Pty. Ltd. v. Hersfield Holdings Pty. Ltd.
(Smithers J., unreported, 13 February 1981)
Fong v. Cilli (1968) 11 F.L.R. 495
Fortuna Holdings Pty. Ltd. v. D.F.C. of T. (1978) V.R. 83
Fryer v. Plucis (1967) W.A.R. 161
Gabriel v. Lobban (1976) V.R. 689
Galambos & Son Pty. Ltd. v. McIntyre (1974) 5 A.L.C.R. 10 Gair v. Smith (1964) V.R. 814
George Macgregor Auto Service Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd. (Northrop J., unreported, 20 November (1980)
Gouriet v. Union of Post Office Workers (1978) A.C. 435
Grasso v. Love (1980) V.R. 163
Hemmings v. The Stoke Poges Golf Club Ltd. (1920) 1 K.B. 720
Henriksens Rederi A/S v. T.H.Z. Rolimpex (1974) 1 Q.B. 233
Highway Properties Ltd. v. Kelly Douglas & Co. Ltd. (1971) 17 D.L.R. (3d) 710
Inglis v. Commonwealth Trading Bank (1972) 126 C.L.R. 161
In re Hiram Maxim Lamp Company (1903) 1 Ch. 70
In re K.L. Tractors Ltd. (1954) V.L.R. 505
James v. Robinson (1963) 109 C.L.R. 593
Johnson v. Tobacco Leaf Marketing Board (1967) V.R. 427
Knockholt Pty. Ltd. v. Graff (1975) Qd.R. 88
Laycock v. Tufnell (1787) 2 Chit. 531
Lency & Sons Ltd. v. Callingham and Thompson (1908) 1 K.B. 79
Magna Alloys & Research Pty. Ltd. v. Coffey (1981) V.R. 23
McPhail v. Persons, Names Unknown (1973) Ch. 447
Nova (Jersey) Knits Ltd. v. Kammgarn Spinnerei G.M.B.H. (1977) 1 W.L.R. 713
Perrey v. Mordiesel Co. Pty. Ltd. (1976) V.R. 569
Pizzey Properties Pty. Ltd. v. Edelstein (1977) V.R. 161
Poort v. Development Underwriting (Victoria) Pty. Ltd. (No. 2) (1977) V.R. 454
Praznovsky v. Sablyack (1977) V.R. 114
Re Boswell (1906) 2 Ch. 359
Registrar of the Supreme Court, Equity Division v. McPherson & Ors. (1980) 1 N.S.W.L.R. 688
Rutile Mining Developments Pty. Ltd. v. Australian Oil Exploration Ltd. (1960) Qd.R. 430
Samuel Keller (Holdings) Ltd. v. Martins Bank Ltd. (1971) 1 W.L.R. 43
Sheppherd v. Felt & Textiles of Aust. Ltd. (1931) 45 C.L.R. 359
Slater Walker Superannuation Pty. Ltd. v. Great Boulder Gold Mines Ltd. (1979) V.R. 107
Sovereign Life Assurance Co. v. Dodd (1892) 2 Q.B. 573
Steamship New Orleans Co. v. London and Provincial Marine and General Insurance Co. (1909) 1 K.B. 943
Stehar Knitting Mills Pty. Ltd. v. Southern Textile Converters Pty. Ltd. (1980) 2 N.S.W.L.R. 514
Strelley v. Pearson (1880) 15 Ch.D. 113
Stewart v. Latec Investments (1968) 1 N.S.W.R. 432
Stockbridge v. Sussums (1842) 22 Q.B. 239, 114 E.R. 499
Stooke v. Taylor (1880) 5 Q.B.D. 569
Thomas v. Cross (1852) 7 Ex. 728; 155 E.R. 1142
Thomson v. Times Newspapers Ltd. (1969) 1 W.L.R. 1236
Total Oil v. Thompson Garages (1972) 1 Q.B. 318
United Dominions Corporation Ltd. v. Jaybe Homes Pty. Ltd. (1978) Qd.R. 111
Von Joel v. Hornsey (1895) 2 Ch. 774
Vowell v. Hastings Shire (1970) V.R. 764

Walters v. Cooper (1967) V.R. 583
Webster v. Bakewell R.D.C. (1916) 1 Ch. 300
Wilson v. Davenport (1833) 5 C.&P. 531; 172 E.R. 1095.