Horstmann, D. v Montcarnet P/L

[1992] FCA 967

JUDGMENT No. ..2 6..~...1.2..& .

IN THE FEDERAL COURT OF AUSTRALIA )

1 No. NG 642 OF 1992

S;ENERAL DIVISION i

BETWEEN :	DIETER HORSTHANN Applicant
AND :	MONTCARNET PTY LIMITED First Respondent
KURT SCHAEFER Second Respondent

CORAM:	WILCOX J
PLACE :	SYDNEY
DATE :	27 NOVEMBER 1992

WILCOX J: This is an application for summary judgment in a proceeding instituted by Dieter Horstmann against two

which the payment was made are set out in an affidavit sworn	by Mr Horstmann dated 6 October 1992 and the annexed statement
of evidence.
Shortly after the action was commenced, an application was made for a Mareva injunction against both respondents. At that time, the respondents were legally represented. A deal of evidence was put before me regarding the circumstances and the existence of a prima facie case. I reached the view that there was a prima facie case. This view has been reinforced by the material subsequently filed on behalf of the applicant.

rers;-.cnde"t.s, ?c-r 4r7e4 P;:' Limited and F 2 r t Sc'. :??er

Montcarnet Pty Limited is a company controlled by Mr Schaefer. The action is based on s.52 of the Trade Practices Act 1974 and arises out of a transaction which was entered into by Mr: Horstmann when he paid a sum of $1 million to the respondents following representations that he would thereby procure an / interest in some land near Byron Bay. The circumstances in

.At some stage after the proceedings commenced, Mr

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~chaefer returned to his native Germany. On 8 September 1992, I dire,cted that the hearing of the matter proceed on affidavit	,	.
. - .

evidence- subject to cross-examination; that the applicant file

.	all' affidavits upon which he would rely within three weeks;
,	,
' and that the respondents file all affidavits on which they

would rely within three weeks after that date.

These directio~s were communicc;"lcr.~ to the second

addressed to him at a place in Berlin which was his last known	respondent by a letter from the applicant's solicitors
address. The applicant subsequently sought an extension of time for filing affidavits and I extended the time until 16 October.
The matter came before me again on 13 November 1992 when the respondents were represented by Mr S. Dammholz, a

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solicitor. At that stage the respondents were in default in relation to their affidavits. ~t first, counsel for the

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,i	applicant sought summary judgment. However, on reflection, counsel withdrew this application; his reason being to give the respondents a further opportunity of filing evidence. Mr Dammholz had been instructed only a day or two previously and had little idea as to the course proposed to be taken by the respondents. Accordingly I stood the matter over until today.
I directed that, if either of the respondents proposed to defend the matter, they file and serve all affidavits on which they intended to rely by Monday, 23 November. I granted leave to file faxed copies, if so desired. I further indicated that if, on 27 November, either of the respondents failed to appear, or it seemed that there was no genuine intention to defend the matter, it is likely that summary judgment would be entered.1 requested Mr Dammholz to convey these directions to Mr Schaefer. Today Mr Dammholz has appeared; but only as a matter of courtesy. He informed me that he conveyed the previous directions to his client but
t.ht he has received no further instructions in the mzt+.%r.
He sought leave to file in Court a notice that he had ceased to act on behalf of both the respondents. I granted this leave and Mr Dammholz then withdrew. Following Mr Dammholz's withdrawal, M r Clarke sought summary judgment.
I think that I should accede to this application. It seems to me plain that Mr Schaefer has no genuine intention to defend the matter on behalf of either of the respondents.
detail. It sufficiently appears from Mr Horstmann's affidavit. I also note the affidavit of the applicant's solicitor, Mr Brad Hayden, of 9 October 1992 which sets out the detail of the transaction. This affidavit annexes the relevant documents. I further note the affidavit of Mr Hayden of 30 November 1992 regarding service of notice upon the respondents. 1 l
The amount claimed is $1 million. This amount was paid on or about 27 March 1987, but Mr Horstmann received interest for the first two years. Consequently, his claim for interest is confined to the period since 29 March 1989. I think it is proper to allow interest. I propose to allow 15 per cent for each of the first three years; that is until 29 March 1992. These years were a time when interest rates were either high or very high. Interest rates are lower this year. I propose to add a further 5 per cent for the period which has elapsed since 29 March. This will mean that the total interest will cuno~~.t o 50 per cent of the srincipal sum.
Accordingly there ought to be judgment for $1,500,000.
I order that judgment be entered in favour of the applicant against both respondents in the sum of $1,500,000. The respondents are to pay the applicant's costs of the proceeding including all interlocutory applications.
The existing order restraining the disposal of the payment in full of the judgment debt and costs.

= ,	I'	I certify that this and the preceding four (4) pages
are a true copy of the Reasons for Judgment of the Honourable Justice Wilcox.
Associate: Dated:

APPEARANCES

Counsel for the Applicant:	T Clarke
Solicitors for the Applicant:	Stone and Partners
Counsel for the Respondent:	No appearance
Solicitors for the Respondent:	No appearance
Dates of hearing:	27 November 1992