Janus, W. v A.G.C. (Advances) Ltd

[1987] FCA 399

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1 QLD G96 of 1987
GENERAL DIVISION	)

: B - WALTER CORNEXLLE CLEMENTMARIE JANUS

First Applicant

AND: WINJAN PASTORAL COMPANY PTY. LTD.

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Second Applicant

AND:	TWEED CANAL ESTATES PTY.	LTD.
Third Applicant

AND: WINGARA ENTERPRISES PTY. LTD.

Fourth Applicant

AND: A.G.C. (ADVANCES) LIMITED

First Respondent

AND: MACDONALD WAGNER PTY. LTD.

Second Respondent

MINUTES OF ORDER

JUDGE MAKING PINCUS ORDER: J.

DATE OF ORDER:	3 JULY 1987
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. On undertakings being given as hereinafter mentioned,

the order made by the Honourable Mr. Justice Spender on the 26th day of June 1987 be varied by deleting order number 2 and replacing it by the following:

"That the injunction so granted cantmue until

further	ord	.	"	I	/	-
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undertakings mentioned are as follows:

That within six weeks of the 26th day 0.C June 1987

the sum of $300,000 be lodged in the Federal Court

of Australla, Brisbane registry, or security to

that amount be provided to the satisfaction of the

Registrar.

That the applicants will use their best endeavours

to obtain wlthout delay a transfer of the land

described as lot 508 on deposited plan 251298

contained in New South Wales certlflcate of title

volume 13054, folio 35, and that he third

applicant will glve to the flrst respondent such

security in relation to its Interest m the sald

land as may reasonably be required by the first

respondent.

The applicants will further cause the third

appllcant to give the first respondent, whether or

not such a transfer as hereinbefore mentloned is

obtalned, such securlty as the first respondent may

reasonably require in respect of the third

applicant's Interests In the benefit of the terms of settlement of Actlon no. 4403 of 1979 in the Equlty Division In the Supreme Court of New South

Wales, being exhlbit "D" to the affldavlt of the

first applicant filed hereln or. 2 July 1987 .

2 . In t'ne event of any difference arlslng with respect to

I . the form of security hereinbefore mentioned, the parties may have liberty to apply.

3. The costs of and Incldental to today's proceedlngs be

paid by the applicants In any event; that is, whatever

the outcome of the principal proceedlngs, on a general

i order for costs being made, the respondents are to have

thelr costs of'today's proceedings taxed and pald by the

l applicants.

1 4. Leave be granted to amend the statement of claim

generally, without pre~udice to the rlght of the respondents to attack the amended version.

5 .	An amended statement of claim be flled and served on	or
before Frlday, 10 July 1987, reserving all questions	of

costs arising in relation to that.

NOTE:

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT	REGISTRY	1	QLD G96 of 1987
GENERAL DIVISION	)

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BETWEEN: HALTER CORNEILLE CLEMENTMARIE JANUS

First Applicant

AND: WINJAN PASTORAL COMPANY PTY. LTD.

Second Applicant

AND : TWEED CANAL ESTATES PTY . LTD.

Third Applicant

AM): EIINGARA ENTERPRISES PTY. LTD. I

Fourth Applicant

AND: A.G.C. (ADVANCES) LIMITEI)

First Respondent

AND: MACDONALD GJAGNER PTY. LTD.

Second Respondent

PINCUS J. 3 JULY 1987

EX TEMPORE REASONS FOR JUDGMENT

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I	In this matter Spender	J .	made an order	sub~ect	to a
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condition of payment of $50,000 today; it has not been paid. The

parties have come before me in a dispute as to whether or not the

conditions should be varied.

It is said on behalf of the applicants, and seems to me

to be correct, that as to about $30,000 the mortgagee‘s position

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has advanced. That 15, it has, in fact, received $30,000 since

his Honour made his order and has not had its security, to the

extent to which it was then taken into account, reduced in value.

' : The second, and rather more complex matter, which has

been raised is that by the terms of a settlement executed in April

1986 it appears that the third applicant has become entitled, on

payment of	$45,000, to a piece of land which is available	as
security.

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On the evidence of Mr. Dyne, the equity in the land 1 s

about $25,000. A s against that, Mr. Eliadls for the respondents

points out that clause 6 of the settlement contains release of any

equitable interest. I take the agreement to mean that the

plaintlff claims no lnterest in the land, other than that vhlch is

obviously glven by clause 4.

It appears to me that the applicants have shown a

sufficient case to vary the order, because they can offer

somethmg whlch places the respondent mortgagee in a posltlon

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whlch may roughly approxlmate that which it would have obtained

under the order, subject to one thing, and that is that they must

be able to give security In respect to the rights under clause 4

of the terms of settlement I have mentioned.

It seems to me that the appropriate course is to

intimate that I am prepared to vary the order so as to substitute

for the requirement of payment of $50,000 an undertaking with

respect to the rights of the third applicant under clause 4. I

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have in min for examp le, tha .t the third applicant might

undertake to deal with the rights under clause 4 by way of

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security in such a way as required by the first respondent, or it

might simply undertake to execute any document by way of security

reasonably required by the first respondent, in respect of its

rights under clause 4.

I have reached this conclusion with some hesitation, in

view of the evidence as to the Law Society suit, which is rather

troubling. It is peripheral in a sense, but should properly

influence the exerclse of my discretlon, and it may be that

further investigation of that matter is necessary, falrly

urgently.

I have also taken lnto account the fact that, on the

undisputed facts,	it seems that the first respondent	is amply
secured.

Although it is no doubt inconvenient for the first

respondent, and somewhat untidy, the proposal that security be

given in respect of the third applicant's rights under clause 4

goes close nough to bridging the gap between the first

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respondent's being in such a position as Spender J. envisaged and

its actual position, to justify my varying the order.

What I propose to do is to adjourn the matter briefly

and perhaps counsel or solicitors could discuss the precise form

of order. I am treating the $30,000 as in effect discharged, and

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the respondents may have such security as they indicate they

desire with respect to the rights under clause 4 .

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In this matter I have this morning indicated the view	I	i, ,:
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have, speaking	generally,	and	counsel	endeavoured	to	reach	1
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agreement on the form of order, without success. The order I

propose	to	make,	subject	any	o	further	submissions,	is	as	r
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follows	:	-	,
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That on undertakings being lven as hereinafter . .

mentloned, the order made by the Honourable Mr. Justice Spender on

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the 26th day of June 1987 be varied by deleting order number 2 and i

replacing it by the following:

"That the in~unctlon so granted continue until

further order. "

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The undertakings mentioned	are as follows:	! .: !
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(1) That within six weeks of the 26th day of June 1987 the sum of

$300,000 be lodged in the Federal Court of Australia,

Brisbane registry, or security to that amount be provided to ..

the satisfaction of the Registrar.

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(2) That the applicants will use their best endeavours to obtain t

without delay a transfer of the land described as lot 508 on

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deposited	plan	251298 contained	in	New South	Wales	!
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certificate of	title volume 13054, folio 35,	and that the	.	?	~
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5.

I	third applicant will give to the first respondent such
security in relation to its interest in the said land as may
reasonably be required by the first respondent.

( 3 )	The applicants will further cause the third applicant to give
the first respondent, whether or not such a transfer as
hereinbefore mentioned is obtained, such security as the
first respondent may reasonably require in respect of the
third applicant's interests in the benefit of the terms of settlement of Action no. 4403 of 1979 In the Equity Division in the Supreme Court of New South Wales, being exhibit "D" to
the affidavit of the first applicant filed herein on 2 July
1987.

It is further ordered that in the event of any

difference arlslng with respect o the form of security

herembefore mentioned, the parties may have liberty to apply.

It 1 s further ordered that the costs of and incidental

to today's proceedings be paid by the applicants in any event.

That is. whatever the outcome of the principal proceedlngs, on a

general order for costs being made, the respondents are to have

their costs of today's proceedings taxed and paid by the

appllcants.

I give 1 eave to amend the statement of claim generally,

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without prejudice to the right of the respondents to attack the

amended version.

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I direct that an amended statement of claim be filed and

served on or before Friday, 10 July 1987, and I reserve all

questions of costs arising in relation to that.

The matter Will come on for directions on 14 July, as

previously ordered by Spender J.

i certlfy that this and the 5 preceding

pages are a true copy of the reasons for judgment hcrein of His Honour Mr. Justice Plncus	Associate	-W	I	L
Dated 3 TU\\/ IT87