J and J Bone Pty Ltd and Ors v Quick Sign Shops (Australia) Pty Ltd and Ors Biscen Pty Ltd and Ors v Temsign Pty Ltd and Ors
[1996] FCA 521
•15 Mar 1996
LIMITED DISTRIBUTION
CATCHWORDS
PRACTICE AND PROCEDURE - Mareva injunction - application to vary or set aside Mareva injunction - discovery of documents revealing cash sales undisclosed by applicants - applicants' business turnover referred to in affidavits filed when Mareva injunction obtained - respondents had conceded, on basis of figures presented by applicants that there was a serious question to be tried - breach of applicants' duties - duty on party bringing an ex parte application for interlocutory relief - obligation on applicants' part to disclose cash sales - whether an obligation on applicants to correct false impression when matter before Court on a defended basis - whether new information might reasonably have been expected to affect the outcome of the application for the interlocutory injunction to continue.
PRACTICE AND PROCEDURE - Mareva injunction - variation or discharge - material non-disclosure - extent to which applicants defaulted - balancing the requirements of justice to the parties pending trial.
PRACTICE AND PROCEDURE - application for order enabling diversion of telephone numbers - whether damages adequate remedy.
Brink's Mat Ltd v. Elcombe & Ors (1988) 1 WLR 1350
J & J BONE PTY LTD & ORS v. QUICK SIGN SHOPS (AUSTRALIA)
PTY LTD & ORS
No. WAG 77 of 1995
BISCEN PTY LTD & ORS v. TEMSIGN PTY LTD & ORS
No. WAG 102 of 1995
CARR J.
PERTH
15 MARCH 1996
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 102 of 1995
GENERAL DIVISION )
BETWEEN: BISCEN PTY LTD
(ACN 060 843 245)
First Applicant
IAN STUART HUNGERFORD and
DARELLE CHRISTINE HUNGERFORD
Second Applicants
CLAIRE MICHELLE DARCY and
GRAHAM JAMES DARCY AS
TRUSTEES FOR THE C.M. DARCY
TRUST
Third Applicants
CLAIRE MICHELLE DARCY and
GRAHAM JAMES DARCY
Fourth Applicants
DARREL WAYNE DONOVAN and
PATRICIA ANNE DONOVAN
Fifth Applicants
MILLDON HOLDINGS PTY LTD
(ACN 066 779 726)
Sixth Applicant
PAUL DAVID COCHRANE
Seventh Applicant
AND:TEMSIGN PTY LTD (ACN 059 983 185) AS TRUSTEE FOR THE QUICK SIGN SHOPS (AUSTRALIA) UNIT TRUST
First Respondent
LISA JANE BAILEY
Second Respondent
SARAH ANNE BAILEY
Third Respondent
RODINGA PTY LTD (ACN 009 040 788) TRADING AS KROONENBURG MUMFORD & ASSOCIATES
Fourth Respondent
JOHANNES JACOABUS KROONENBURG
Fifth Respondent
FIRST, SECOND AND THIRD RESPONDENTS' MOTION
FILED 16 FEBRUARY 1996
ORDERS
JUDGE MAKING ORDER: CARR J.
DATE: 15 MARCH 1996
WHERE MADE: PERTH
THE COURT ORDERS THAT:
The injunctive orders made on 13 October 1995, as varied by the orders made on 15 December 1995, 21 December 1995 and 5 January 1996 be further varied by the addition of the following orders:
2B.The first, second and third respondents may exercise such legal rights, to which they may respectively be entitled, to withdraw $50,000 from the funds held in account number 260237709 standing in the name of "Quick Sign Shops (Australia) Pty Ltd ACN 059 983 185 ATF Quick Sign Shops (Australia) Unit Trust T/A Quick Sign Shop" at the Australia & New Zealand Banking Group Limited's branch at 940 Hay Street, Perth ("the Funds") and expend that amount as they see fit.
2C.Subject to sub-paragraph 2B hereof, the first, second and third respondents be restrained and an injunction is hereby granted restraining them whether by themselves or by their servants or agents from withdrawing any part of the balance of the Funds.
2D.The first, second and third respondents shall not make further application for orders allowing them to withdraw part or the whole of the balance of the Funds before the trial of this application.
2E.The second and third respondents shall exercise whatever rights, powers or capacities they may possess whether as directors or shareholders of Bowquest Pty Ltd or unit holders in the "Bowquest Unit Trust" or trustees of the "S & L Bailey Discretionary Trust" or otherwise to:
(a)ensure that, subject to compliance with paragraphs 2A(b) hereof any moneys payable to or to the order of Bowquest Pty Ltd pursuant to any transaction falling within paragraph 2A hereof shall, forthwith upon receipt, be deposited into a bank account in the name of Bowquest Pty Ltd and shall remain in that bank account until further order. Within seven days of such deposit the second and third respondents shall provide the applicants' solicitors with written particulars of the amount so deposited and the bank and account number in which that amount has been deposited;
(b)ensure that, until further order the terms of any trust deed constituting or evidencing either the "Bowquest Unit Trust" or the "S & L Bailey Discretionary Trust" shall not be amended and that no further units will be issued in or in respect of the Bowquest Unit Trust; and
(c)ensure that Bowquest Pty Ltd will not be removed or replaced as trustee of the "Bowquest Unit Trust".
Costs of this motion be costs in the cause.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 77 of 1995
GENERAL DIVISION )
BETWEEN :J & J BONE PTY LTD
(ACN 067 501 633)
First Applicant
JOHN FRANKLYN BONE and
JANE KATE BONE
Second Applicants
AND: QUICK SIGN SHOPS (AUSTRALIA)
PTY LTD (ACN 059 983 185)
First Respondent
LISA JANE BAILEY and SARA ANNE BAILEY
Second Respondents
HANS KROONENBERG
Third Respondent
FIRST AND SECOND RESPONDENTS' MOTION
FILED 16 FEBRUARY 1996
ORDERS
JUDGE MAKING ORDER: CARR J.
DATE: 15 MARCH 1996
WHERE MADE: PERTH
THE COURT ORDERS THAT:
The injunctive orders made on 13 October 1995, as varied by the orders made on 15 December 1995, 21 December 1995 and 5 January 1996 be further varied by the addition of the following orders:
2B.The first and second respondents may exercise such legal rights, to which they may respectively be entitled, to withdraw $50,000 from the funds held in account number 260237709 standing in the name of "Quick Sign Shops (Australia) Pty Ltd ACN 059 983 185 ATF Quick Sign Shops (Australia) Unit Trust T/A Quick Sign Shop" at the Australia & New Zealand Banking Group Limited's branch at 940 Hay Street, Perth ("the Funds") and expend that amount as they see fit. The permission to withdraw that amount is co-extensive with and not additional to the permission conferred by paragraph 2B of the injunctive orders made on 13 October 1995 (as varied by the orders made on 15 December 1995, 21 December 1995 and 5 January 1996) in Application No. WAG 102 of 1995 as further varied by orders of today's date.
2C.Subject to sub-paragraph 2B hereof, the first and second respondents be restrained and an injunction is hereby granted restraining them whether by themselves or by their servants or agents from withdrawing any part of the balance of the Funds.
2D.The first and second respondents shall not make further application for orders allowing them to withdraw part or the whole of the balance of the Funds before the trial of this application.
2E.The second respondents shall exercise whatever rights, powers or capacities they may possess whether as directors or shareholders of Bowquest Pty Ltd or unit holders in the "Bowquest Unit Trust" or trustees of the "S & L Bailey Discretionary Trust" or otherwise to:
(a)ensure that, subject to compliance with paragraphs 2A(b) of the orders made on 5 January 1996, any moneys payable to or to the order of Bowquest Pty Ltd pursuant to any such transaction shall, forthwith upon receipt, be deposited into a bank account in the name of Bowquest Pty Ltd and shall remain in that bank account until further order. Within seven days of such deposit the second and third respondents shall provide the applicants' solicitors with written particulars of the amount so deposited and the bank and account number in which that amount has been deposited;
(b)ensure that, until further order the terms of any trust deed constituting or evidencing either the "Bowquest Unit Trust" or the "S & L Bailey Discretionary Trust" shall not be amended and that no further units will be issued in or in respect of the Bowquest Unit Trust; and
(c)ensure that Bowquest Pty Ltd will not be removed or replaced as trustee of the "Bowquest Unit Trust".
Costs of this motion be the first and second respondents' costs in the cause.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 77 of 1995
GENERAL DIVISION )
BETWEEN :J & J BONE PTY LTD
(ACN 067 501 633)
First Applicant
JOHN FRANKLYN BONE and
JANE KATE BONE
Second Applicants
AND: QUICK SIGN SHOPS (AUSTRALIA)
PTY LTD (ACN 059 983 185)
First Respondent
LISA JANE BAILEY and SARA ANNE BAILEY
Second Respondents
HANS KROONENBERG
Third Respondent
No. WAG 102 of 1995
BETWEEN: BISCEN PTY LTD
(ACN 060 843 245)
First Applicant
IAN STUART HUNGERFORD and
DARELLE CHRISTINE HUNGERFORD
Second Applicants
CLAIRE MICHELLE DARCY and
GRAHAM JAMES DARCY AS
TRUSTEES FOR THE C.M. DARCY
TRUST
Third Applicants
CLAIRE MICHELLE DARCY and
GRAHAM JAMES DARCY
Fourth Applicants
DARREL WAYNE DONOVAN and
PATRICIA ANNE DONOVAN
Fifth Applicants
MILLDON HOLDINGS PTY LTD
(ACN 066 779 726)
Sixth Applicant
PAUL DAVID COCHRANE
Seventh Applicant
AND:TEMSIGN PTY LTD (ACN 059 983 185) AS TRUSTEE FOR THE QUICK SIGN SHOPS (AUSTRALIA) UNIT TRUST
First Respondent
LISA JANE BAILEY
Second Respondent
SARAH ANNE BAILEY
Third Respondent
RODINGA PTY LTD (ACN 009 040 788) TRADING AS KROONENBURG MUMFORD & ASSOCIATES
Fourth Respondent
JOHANNES JACOABUS KROONENBURG
Fifth Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 15 MARCH 1996
EX TEMPORE REASONS FOR JUDGMENT (LIMITED DISTRIBUTION)
Introduction
In this matter, I consider it necessary to give my reasons for judgment and my judgment in respect of the motion ex tempore, because first there are other commitments of the Court; secondly this is the fourth time that the question of the Mareva injunction, which is the subject of the motion or the motions, in these two applications has been before the Court for substantial and extensive argument. On this occasion, as I mentioned earlier, some 32 affidavits have been filed in the last few weeks in less than a month, in respect of application WAG 102 of 1995 and another half‑dozen in application WAG 77 of 1995. Furthermore, there is a degree of urgency, to which Mr McCormack (counsel for the respondents) has just referred, in that there are substantial debts which the first respondent has to meet.
The Court has before it, in application WAG 102 of 1995, a notice of motion by the second and third respondents whom I shall refer to as the Bailey sisters and if they prefer to be referred to by some other term, I apologise, but it is a matter of convenience. The orders which the Bailey sisters seek are, first of all, to set aside orders which I made on 13 October last year and varied on 5 January this year in the nature of a Mareva injunction freezing certain assets, but with certain qualifications to enable limited access to funds which might result from the sale of one or other or all three of the properties, which I have referred to in my previous reasons.
Alternatively, the respondents seek a variation of those orders so that they may have access to the proceeds of the sale of the properties at Subiaco and East Perth to pay business expenses, including expenses incurred in relation to the establishment of the Quick Sign Shop franchise in Queensland, reasonable personal expenses and legal expenses as and when required.
Thirdly, the respondents seek an order that the applicants do all things necessary to enable five telephone numbers, which are specified in paragraph 3 of their notice of motion, to be diverted to a number to be nominated by the first respondent (which is the company Temsign Pty Ltd).
In turn, that relief relates to yet another substantial interlocutory motion, which was the subject of a hearing in early December last year. So a variation is sought of orders made in that regard on 1 December 1995.
In application WAG 77 of 1995, the respondents seek similar orders in respect of the setting aside and, in the alternative, the variation of the Mareva injunction.
The factual background of this matter has been detailed in my earlier reasons for judgment given on 10 October 1995 and, again, on 5 January 1996 and rather than read them out, I will incorporate those factual circumstances ‑ that factual background ‑ by reference as I now do. It is sufficient for present purposes to say that the disputes arise out of the sale to the applicants in both applications of franchised businesses. In particular the applicants complain of what they say were misrepresentations made to them concerning the turnover and possibly the profitability of the franchised businesses in question, four of which in the case of application number WAG 102 of 1995 and
one in respect of the other application in which Mr and Mrs Bone and their company are the applicants.
The basis for the respondents' motions, insofar as they concern the Mareva injunction, is that they became aware, during the course of discovery of the applicants' documents last month, of undisclosed cash sales. It is, I think, common ground that in the affidavits filed in support of the applicants' applications in September last year for these Mareva injunctions, turnover figures were quoted and set out in all but, I think, Mr and Mrs Hungerford's case which did not include cash sales. In other words, the turnover figures in each of the applicants' affidavits were lower than would have been the case if cash sales had been taken into account.
So for those reasons the respondents say the applicants' entitlement to the protection of the Mareva injunction should be removed. The respondents put their case on the basis that there is an equitable duty placed on an applicant coming to this court for urgent interlocutory or any kind of interlocutory relief which is ex parte ‑ that is, to be granted in the absence of the respondent party or parties ‑ to put all material evidence before the Court, whether it be favourable or unfavourable to that applicant's case.
That is undoubtedly the law in a situation where the application is ex parte.
In this matter the original application in both principal applications was heard ex parte on 15 September 1995 and an injunction was granted, but only for a very limited time. The matter came back before the Court on 26 September 1995 and there was a
continuation of the injunction, as I recall it, by video link when senior counsel appeared for the respondents. There was a variation of the original ex parte injunction, the Mareva injunction was continued in a revised form and the matter was adjourned for a full inter partes hearing on 5 October 1995. So that was, on 5 October 1995, the first substantive inter partes hearing in respect of the application for the Mareva injunction.
On that occasion there was no issue between the parties on the first of two limbs which are commonly regarded as the appropriate touchstones or tests for the granting of urgent interlocutory relief, including relief of the Mareva type. As to the first limb, there was no dispute that there was a serious question to be tried. The applicants say that in those circumstances there was no obligation on the applicant's part to disclose the cash sales. First, because the application for the interlocutory injunction was no longer ex parte because the respondents were there vigorously opposing through counsel the granting of the order. Secondly, because the difference in the figures [and Mr Ryall in his submissions at pages 7 to 8 sets out the calculations of the revised figures], the applicants say, did not really make much difference; did not make any material difference or, as he put it, did not materially affect the case to be put forward.
Neither party has been able to put before me any authority ‑ that is, any decided case ‑ on the question of whether there is an obligation on an applicant, who has obtained an ex parte injunction supported by affidavits which are, to some extent false, to correct that false impression when the matters comes before the court on a defended basis.
Even the learned author of Spry on Equitable Remedies at page 490 says:
"It is by no means clear to what extent any special duty continues to rest on the plaintiff."
In my view in the present case I consider that there was a duty in equity on the applicants to correct what had previously been a false impression, provided that the new information might reasonably have been expected to affect the outcome of the application for the interlocutory injunction to continue. In my opinion, a fairly stringent standard should be applied to that test of whether the information might reasonably have been expected to affect the outcome. Mr Ryall, as I say, says that the revised figures do not materially affect the case which his clients put forward, and he took me to the particulars and I shall not repeat them, but in essence the losses were slightly less and the profits, if there were profits, were only slightly more and that was in the context of representations involving profit promises of $80,000 or that order. I must emphasise that I am simply referring to these figures in an interlocutory application. Such reference has no bearing on the eventual outcome of this case.
In my view, that information might reasonably have been expected to affect the court. It might well not have, but I think there is sufficient doubt for me to find that there was a breach of the applicants' duties; perhaps not in October when the matter was first before me, but it seems to be common ground that at some stage in November 1995 the applicants were informed that they should, in turn, inform their accountants and the Australian Taxation Office of the correct position concerning the cash sales.
Secondly, I think there is some substance in the proposition that the respondents conceded that there was a serious question to be tried on the basis of the turnover figures deposed to in the respective affidavits put forward by the applicants and filed in mid‑September 1995. It might well be that even if the cash sales had been added in to those turnover figures, the respondents would have acknowledged that there was still a serious question to be tried, but I am not satisfied that that automatically flows and so I consider, as I say, that there was a breach on the applicants' part. In fairness to the applicants, their solicitor and counsel has made it very clear to the court that it is not his clients' fault. He (Mr Ryall) says that he made a judgment and he stands by that judgment and makes no bones about that.
The applicants have put on affidavit a considerable volume of evidence to the effect that when they were trained by the franchisors, ie by the Bailey sisters, they were told that there was to be one set of books for the purposes of calculating royalty payments of 5 per cent on sales which would be payable to the franchisor and that so far as they [that is the franchisor and their directors] were concerned cash sales would not need to be the subject of a return for the purposes of assessment of royalty. I must immediately stress that on the respondents' side, both the Bailey sisters strenuously deny that there was ever any such arrangement.
It is quite impossible to resolve basic conflicts of fact of this type appearing from the affidavits on each side in these two matters because on neither side were the deponents cross‑examined and there is this very clear conflict of fact which, it is well acknowledged, a court cannot resolve on the papers, although counsel, each in turn, put to me the logical unlikelihood:
.on the respondents' part of their waiving their 5 per cent royalty in respect of all cash sales; and
.Mr Ryall, in response, took me to other aspects which he said should lead me to believe his clients' affidavits.
So the matter of whether the respondents suggested and instructed the applicants to proceed in the manner in which they did remains as an undecided issue.
Just assuming for the moment that it were the case, I do not think that would excuse the applicants from compliance, with what I have considered to be, a duty to correct a false impression previously existing. It would be a different situation if they had simply been silent about a material matter, rather than having created an impression of a disparity of figures between what was represented and what actually took place.
That leads me to the next decision which I have to make and that is whether the Mareva injunction should be discharged in full or whether it should be varied. I have taken into account the fact that very quickly in the piece the dispute ceased to be ex parte. Secondly, even if it had not ceased to be ex parte, there is authority for the proposition that it is not automatic that a material non‑disclosure results in the discharge of the injunction, and I refer to the decision of the Court of Appeal in England in Brink's Mat Ltd v. Elcombe & Ors (1988) 1 WLR 1350 at p.1357.
It is a question of weighing up the extent to which the applicants have defaulted and in my view I do not think it is appropriate to discharge the Mareva injunction. However for two principal reasons I think there should be a variation of the Mareva injunction. The two principal reasons are, first, that I think the Court should record and visit its disapproval of the course taken by the applicants in this matter. Secondly, I consider that sufficient affidavit evidence has been put before the court since the last time it was before the court which was in early January ‑ on 4 January this year ‑ to make a better assessment of what would do justice as between the parties.
On the one hand, there is no suggestion of providing any security for the applicants in obtaining satisfaction of their judgment. That could be tested this way ‑ if anybody else gets a judgment against the respondents, they will be able to execute upon whatever assets exist. So obviously there is no security being provided for the applicants. Balancing against that, on the other hand, is that there should not be use of a Mareva injunction by way of applying pressure on a respondent or a series of respondents to settle the proceedings. I have also had regard, in the exercise of my discretion, to the following facts ‑ that the first and second respondents appear to have received some $560,000 in the period of the 6 months to the end of July 1995.
I incorporate by reference my reasons in the previous interlocutory motions ‑ the two times that I have had to give reasoned judgments in this matter.
There is also the fact that on the ‑ perhaps I should set the context of what I am about to say. Application WAG 77 of 1995 was filed on 10 July 1995. Application number WAG 102 of 1995 was filed on 15 September 1995 and on that date an immediate application was made in both matters for the Mareva injunction. Five days later, on 20 September 1995, $122,500 was withdrawn in cash from the Commonwealth Bank account, the number of which I do not recall, but it is in the evidence. Miss Sarah
Bailey admitted in oral evidence on 5 January 1996 that she withdrew this money from the bank so that it would not be frozen by a court order.
On the same date ‑ that is, 20 September 1995, her sister withdrew $17,000 for the purpose of the Queensland operations. So I take that into account. I also take into account the $86,000 worth of debts that Temsign has to pay. What I propose to do is, rather than have this matter come back time after time, I propose to allow a degree of access to the funds which, as I understand it, are approximately $250,000 in an ANZ Bank account. I propose to allow the respondents to have access to $50,000 of that money on the basis that they can choose how they propose to apply that, but that the injunction will otherwise remain and that there will be no further releasing of funds from that sum of a quarter of a million dollars.
For those reasons I propose to make those variations to the Mareva injunction ‑ that is, that the respondents, from the time when the order is signed and extracted ‑ in the meantime the order will remain, but I will invite the respondents to submit a draft minute which will give effect to the reasons which I have just enunciated. To clarify the matter, the slate will be relatively wiped clean in that the new injunction will freeze the proceeds of the Subiaco and East Perth properties, except to the extent of $50,000 which may be taken and used as the respondents see fit, on the basis that there will be no further access to those funds until the trial of the action.
Secondly, the proceeds of any sale of the West Leederville property will need to be secured in the same way as that $200,000 remaining after the sale of the other two
properties is concerned. It has now come to the court's attention that rather than owning that property outright at West Leederville, Bowquest Pty Ltd, of which the sole shareholders are the two Bailey sisters, does not own that property beneficially, but owns it as trustee for a unit trust and the units in that trust, in turn, are held by the Bailey sisters on trust for a discretionary trust. The orders which I propose to make, and which I would appreciate counsel putting into a minute, should make it clear that the Bailey sisters are to do whatever is necessary to preserve that property and the proceeds of that property until further order.
There are two matters that I should perhaps touch on. First of all, Mr Marlborough's affidavit ‑ I do not need for present purposes ‑ I did not need to have regard to Mr Marlborough's affidavit and the Darcy fax.
Likewise, in view of the conclusions to which I came, I did not have to consider the significance or otherwise of the Darcy fax. I found against the applicants on their duty of disclosure, rightly or wrongly, and it was not necessary for me to have regard to that as a matter of discretion.
I now turn to the remaining part of the motion in application WAG 102 of1996 ‑ that is, the question of the telephone numbers. On the earlier occasion I dismissed the motion seeking diversion of the telephone numbers, but at the same time made an order which imposed an obligation on the applicants to make a record of the incoming calls. Mr Ryall says that was for the purposes of facilitating proof of damage should, as was then contemplated, the respondents bring proceedings either for passing off or
under section 52 of the Trade Practices Act or its corresponding section in the Fair Trading Act of Western Australia for damages and that it would be easier then to assess if there were some records kept.
I declined to make that order as sought by the respondents basically because I wanted to maintain the status quo. It was a relatively difficult decision because I could see the merits on either side. Mr McCormack says that diversion of the phone calls is the only way in which his clients' problems can be cured. Mr Ryall says, "Well, there is no prejudice shown ‑ no evidence of any prejudice." In my view there are only two matters to which my attention has been drawn which bear significantly on this question of whether there should be a diversion of these telephone calls.
First of all, the fact that there may have been some deficiencies in the recording of the incoming telephone calls ‑ to that I would say there seems to have been substantial compliance or a real effort made to record incoming telephone calls. The calls which the respondents caused to be made were, I think, one from ‑ well, the one I am thinking of at the moment is from Brisbane with the caller saying he was in Geraldton ringing a sign shop in Rockingham for a $25 sign and I think perhaps the nature of the inquiry, as Mr Ryall submitted, could well have led to the failure to record that particular call.
The very fact that not all calls have recorded will, of course, have a bearing if proceedings are brought as the respondents foreshadowed. Mr Ryall says, "Well, 4 months have passed and they have not brought proceedings." I must take notice of the
fact that there are all these proceedings in this Court. There are separate proceedings, so I understand it, for defamation in the Supreme Court and I do not think it can be lodged against the respondents, or held against them, that they have not initiated the foreshadowed proceedings. They have three years in the case of one cause of action and six in the other to take that course.
The other piece of evidence is the advertising in the Perth Big Colour book, which is in the nature of a telephone directory for commercial enterprises. I have looked at that advertisement and I have listened to the explanation of how the applicants' numbers came to be under the heading of Quick Sign and, of course, there is no evidence either way on this and the affidavit which exhibited that particular directory was fairly late in the piece, but I am told that that automatically flows in from entries in the white pages. That may well be the case. I propose not to make the order sought because, once again, damages will, in my view, be an equally available remedy. The fact of that advertisement appearing will be part of the evidence in such a damages claim and I am not persuaded that it was the applicants' fault that that advertisement appeared and, furthermore, it appears on the same page as the advertisement in which they have clearly identified themselves as trading under the name "Bullet".
So I do not propose to accede to the respondents' request that there be a diversion placed on that, nor do I propose to accede to the applicants' request for discharge of that condition which I have just referred to, for the reasons relating to the fact that proceedings may yet be brought. So for all of those reasons there will be an order that the respondents bring in a minute to reflect the reasons that I have just given in both
applications. On the question of costs, my inclination is to make an order that costs of both motions be costs in the cause, but I will hear counsel on that.
I certify that this and the preceding sixteen
(16) pages are a true copy of the Reasons for
Judgment of Justice Carr.Associate:
Date: 21 June 1996
Counsel for the Applicants in
Application No. WAG 77 of 1995: Mr M.C. Hotchkin
Solicitors for the Applicants in
Application No. WAG 77 of 1995: Messrs Hotchkin Hanly
Counsel for the Applicants in
Application No. WAG 102 of 1995: Mr C.J. Ryall
Solicitors for the Applicants in
Application No. WAG 102 of 1995: Messrs Michell Sillar McPhee
Counsel for the Respondents: Mr R J L McCormack
Solicitors for the Respondents: Messrs Barker Gosling
Date of Hearing: 15 March 1996
Date of Judgment: 15 March 1996
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