Kullack, E. v A.N.Z. Banking Group Ltd

[1987] FCA 324

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IN THE FEDERAL COURT OF AUSTRALIA )

9UEENSLAND UlSTRICT REGISTRY ) QLD G7 of 1987

DIVISION GENERAL )

l i , L BETWEEN: ESTHER KULLACK

Applicant

AND: AUSTRALIA AND Nm ZEALAND BANKING GROUP

LIMITED

First Respondent

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AND: PAUL HARbIOOD t .

Second Respondent i

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP

LIMITED

Cross Claimant

AND: ESTHER KULLACK

First Cross Respondent

AND: VALERIE KULLACK !

Second Cross Respondent 1:

AND: ARMIN KULLACK

Third	Cross	Respondent	!
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MINUTES OF ORDER

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MAKING JUDGE ORDER: J. PINCUS :. :

DATE OF ORDER:	2 JUNE 1987
WERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. The application for an interlocutory injunction be

dismissed.

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2.	The applicant pay the costs of	1 -
the application, including Monday, 18 May 1987.

m: Settlement and entry of

Order 36 of the Federal

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IN THE FZDERAI. COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1 QLD G7 of 1987

DIVISION GENERAL )

BETWEEN: ESTHER KULLACK

Applicant

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP

LIMITD

First Respondent

AND: PAUL I-IARWOOD

Second Respondent

AND:

AUSTRALIA AND NEW ZEALAND BANKING GROUP

LIMITED

Cross Claimant

AND: ESTHER KULLACK

First Cross Respondent

AND: VALERIE KULLACK

Second Cross Respondent

AND: ARMIN KULLACK

Third Cross Respondent

PINCUS J. 2 JUNE 1987

EX TEMPORE REASONS FOR JUDGMENT

This is an application for an unconditional

interlocutory lnjunction to restrain the exercise of rights under

security documents pending the resolution of the principal dispute

between the parties. The application was made on 2 3 January 1987,

and, as originally framed, relied upon allegations of

misrepresentation and negligence relating to the applicant's entry

into a transaction of loan.

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Mr. Doug rlas, who appears for the app licant, has today

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obtained leave to amend the statement of claim so as to raise

other points, and it is, in essence, on those new points which he

relies in seeking the relief, which is an unconditional

injunction, that is, one not subject to a condition as to payment

into Court. The two questions which are raised may be stated in

an abstract way.

Firstly, the suggestion is that under s.9 of the

Currencv Act 1965 it is unlawful to have a loan transaction in

mixed currencies, for example, partly in Australian and partly in is one of that sort. The relevant part of s . 9 of the Currency Act

1965 is sub-s.(l), which is as follows:

"Subject to thls section, every sale, every bill of

exchange or promissory note, every security for

money, and every other contract, agreement, deed,

instrument, transaction, dealing, matter or thing

relating to money, or involving the payment of, or

a liability to pay, money, that is made, executed, entered into or done, shall, unless it is made, executed, entered into or done accordmg to the

currency of some country other than Australia, be

made, executed, entered into or done accordinq. t

the currency of Australia provided for by this

Act. I'

It is argued by Mr. Muir Q.C-, senior counsel for the

respondents, that the purpose and effect of s.9(1) have nothing to

do with mixing of currencies, and that the sub-section s designed !

to prevent the use of what .might be described as unofficial

currencies - that is, currencies which are not either the

recognized currency of some other country or the proper Australian,

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currency. He gave, as an example, the use- of Australran pounds,- * - * -

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The argument which Mr. Douglas advances may claim some

support from the words of the section read in one way, but seems

to me to impute a very Improbable intention to the legislature.

The other point that Mr. Douglas raises is of similar

character, although In my view, rather weaker. It rests upon 5.15

of the Monev Lenders Act 1916-1979 (Q.),	which reads in part as
follows:

"(1) All loans purporting to be loans of money

shall be made in current money, bank notes, r

cheques on bankers, and shall be made in full

wlthout any deduction for interest or

otherwise.

FJo land, goods, or articles of any kind

whatever nr thlngs in action shall be qiven or

supplled in or by way of barter or otherwise

for or as part of any such loan.

This subsectlon shall not be construed. to

prevent a money-lender deductlng from any loan

of money all such fees, costs, charqes, and

expenses of any klnd whatsoever as may be

lawfully charged pursuant to thls Act, except	. ,
interest.

1 2 ) Every contract made or transactlon entered

into or performed in breach of or with intent

to evade or avoid thls section in respect of a

loan after the commencement of thls Act shall,

to the extent of such breach, evasion, or

avoidance, be absolutely void."

The argument is in substance that the loan here in questlon

purports to be a loan of money and must therefore be made as

sub-s.(l) prescribes. Counsel says its prescription is that it

must be made in Australian money. The simplest answer to the

argument, perhaps, 1s one which is made by Mr. Muir, namely that

presumably the word "money" has the same meaning throughout the,

sub-section, and if "money" in the second place means Australian

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money, then It presumably means that in the first place. Here the

loan does not purport to be a loan of Australian money. It

purports to be, as Mr. Douglas says, a mixed loan.

Another problem in the argument is whether the

Queensland Parliament could ever be taken to have intended to

govern the way in which Queensland transactions shall be

transacted with respect to the currency to be used.

Although the arguments are both ingenious, they seem to

me not strong; I would be surprised if elther succeeded at the

trial. Mr. Douglas contends, and it is s o , that one of the sets

of circumstances in which It may be proper to decline to impose a

condition of payment into court on grant of an Injunction to

restrain enforcement of a security pendente llte is where the

transaction ln questlon is sald to be absolutely void. The

matter, however, is ultimately one for the exercise of discretion

and it appears to me that where the polnts taken are wholly

technical, that is, have no substantial merlt, and where they seem

not likely to succeed, it would be wrong to depart from the usual

rule applicable In such cases. Despite the able argument of Mr.

Douglas, I am clearly of the view that the proper exercise of the

Court's discretlon would impose a condition as to payment into

Court and since the application for an injunction is not pressed

on that basis, it will be refused.

I

certify that this and the 3 preceding

pages ar2 a truz copy of the reasons	for
judgment hcrein of His Honour
Mr. Justice Pincus