Johen Pty Ltd v Lambear Pty Ltd

[1987] FCA 69

, J2-L 64

AND: HELEN MARE F'RANCES COOPER

Third Applicant

AND: LAMBEAR PTY. LTD.

First Respondent

AND: WALHINJI PTY. LIMITED

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	12 FEBRUARY 1987
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.	The application for an interim in~unction	be
refused, wlth costs.

m:	Order 36 of the Federal Court Rules.
Settlement and entry of orders is dealt with in

IN THE FED= COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY	1	QLD G12 of 1987
GENERAL DIVISION	)

BETEEN: JOHEN PTY. LTD.

First Applicant

AND: JOHN RICHARD COOPER

Second Applicant

AND: HELEN MARE FRANCES COOPER

Third Applicant

AND: LAMBEAR PTY. LTD.

First Respondent

AND: WALHIND PTY. LIMITED

Second Respondent

PINCUS J. 12 February 1987

EX TEMPORE REASONS FOR JUDGMENT

There is an application In this Court for a declaration

that the first applicant is entitled to rescind an agreement dated rescind a certain sublease and guarantees, damages under the Trade

Practices alt rnative the i and Act damages for

misrepresentation.

There is also sought an injunction restraining the

prosecution of two suits brought in the District Court of

Queensland at Brisbane, which were instituted in August and

October last year. There is an affidavit before me by Mr. Brian

Halligan, solicitor for the applicants, and counsel appears today

i s . 2 .

seeking an interim injunction to restrain the prosecution	of
applications for summary judgment which have been made in the

District Court proceedings I have mentioned.

Mr. Halligan's affidavit discloses that in District

Court proceedings, no. 3192 of 1986, the defence was filed on 15

October 1986 and in the other suit, no. 3670 of 1986, a defence

was flled on 6 November 1986. The applications for summary

judgment seem to have been filed rather late. That is, they were

filed only on 28 January 1987 but that is, no doubt, a matter

which the District Court could consider and not really a	matter
for me.

The affidavit of Mr. Halligan explains that the case is

about a tenancy In a shopping centre at Aspley called the

Pick-N-Pay Hypermarket, which commenced in November 1984. It says that at a meetlng between prospective tenants of the hypermarket

and representatives of the developers and landlord it was said

that the hypermarket would not compete with the speciality shops and that the turnover was 30 per cent higher for speclality shops adjacent to a hypermarket, or words to that effect.

Mr. Halligan's affidavit further indicates that his

instructions are that both of these assertions were falsified by

events, in that the turnover was unsatisfactory and in that the

speciality stores located about the hypermarket did not enjoy such

a turnover as had been promised and in that the hypermarket

actively competed with the speciality shops. The affidavit goes

on to give some small amount f detail as to the competition.

3.

Counsel for the applicants has candidly drawn attention

to the fact that the defences which I have mentioned, filed in the

District Court, no raise do h se suggestions f

misrepresentation. They merely rely upon the legal point, about

the validity of which it is not necessary to say anything, that

the leases in question were not registered.

The application having been filed in this Court It 1 s a

question, it seems to me, whether I should en~oin the further

prosecution of the matters in the District Court or leave it to

the Judge of the District Court who hears the applications to

determine whether he should, in the light of the proceedlngs

having been commenced here, ad~ourn or proceed with the

applications for summary judgment. It is by no means m every

case that a proper exercise of the discretlon of thls Court to

grant such an injunction as is sought would requlre the granting

of an in~unction merely because a suggestlon 1 s made that the

matter falls within s.52 of the Trade Practices Act.

I have, desplte the able argument of Mr. Batch, come to

the conclusion that I should refuse the appllcation and leave it

to the District Court to proceed, or not proceed, wlth the

applications to that court, as it sees fit. The reasons are as

follows: firstly, and unusually, there is no suggestion made in

the proceedings in the District Court that there was any

misrepresentation made; secondly, the character the of

misrepresentations made, according to the instructions given to

Mr. Halligan, is not such as to generate any great confidence in

the prospects of success. I appreciate, as Mr. Batch has pointed

e .

c 4 .

out, that there has not been time to give much detail, but the

expectation as to a hiqh turnover is not, prima facie, a

representation of anything other than opinion and the statement as

to competition, on the face of it, is merely promissory.

The case is one, in my opinion, in which the court

should not interfere. That is not to say, of course, that if the

application in this Court is pursued it must necessarily fail. It

does not, on the face of it, look overwhelmingly promising.

The order of the court will therefore be that the

application for an interim injunction made orally by counsel today

be refused, with costs.

1

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