Kurland, R. v European Asian of Australia Ltd

[1985] FCA 466

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I N THE FEDERAL COTJRT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) )
GENERAL DIVISION

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BETWEEN:

RICHFRD KTJRLAND and

SANDRA MARGIlFET KTJRLAND

Applicants

AIJD :

I	WJROPEWl ASIAN OF
I	AUSTRALIA LIMITED
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First Respondent

AND:

FRDMANN R. G. VOGT

Second Respondent

I	AND :
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i	F.J.A. BROWN
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i Third Respondent

1 AND :

!	JOHN R. THOMAS
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Fourth Respondent

i	Judue Makinq Order: Burchett J.
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l	Where Made: Sydney

17 Sept'ember, 1985.

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MINUTE OF ORDER OF THE COURT

THE COURT ORDERS THAT:

j (1) The application be dismissed with costs.

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N S : Settlement and entry of qrder. is dealt with in Order 36 Af

the Federal Court Rules. A'

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I	I N THE FEDERAL COTJRT OF AUSTRALIA	I
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NEcnl SOUTH WALES DISTRICT REGISTRY	) NO. G. 268 of 1985
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DIVISION GENERAL \

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BETKEZN :

RICHARD KURLAND and

SANDRB MFRGARET KURLAND

Applicants

AND:

EUROPEAN ASTAN OF

I AUSTRALIA LIMITED

First Respondent

AND :

ERTMANN R.G. VOGT

Second Respondent

AND:

F. J.A. RROHN

Third Respondent

AND :

J O H N R . THOMAS

Fourth Respondent

EX TEMPORE REASONS FOR JUDGMENT

I ' BLTRCHETT J. I The applicants have commenced proceedings in this Court

by Application and Statement of Claim. Pursuant to leave to

serve short notice, granted by Morling J. last Friday, they now

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seek an interlocutory order restraining the first respondent ( o

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which I shall refer as the Eurasian Bank) from takinu any further

step in certain proceedings in the Supreme Court of New South

Wales.

The proceedings in the Supreme Court of New South Wales

were instituted by the Eurasian Bank. which is a merchant bank,

to recover monies amountina to over $600.000 claimed pursuant to

a guarantee dated 7 June 1984 and a letter of request dated 5

December 1984. An order was made by Rogers J. in the Supreme

Court providing for the filinu of a defence and affidavit of

facts. This order was not complied with. Counsel for the

applicants informed Rogers J. that it was proposed to launch the

present proceedings in this Court, the applicants apparently

taking the view that such a course would provide sufficient

reason for failure to comply with the requirement to file a

defence and affidavit of facts in the Supreme Court. As a result

Rogers J. granted leave to the Eurasian Bank to enter judgment.

It is submitted that, because the issues, sought to be raised on

behalf of the applicants. include an issue under 5.52 of the

Trade Practices Act, 1974, I ought to accede to their request for

an interlocutory order restraining the Eurasian Bank from

proceeding further in the Supreme Court.

Not only has no affidavit of facts been filed in the

Supreme Court. but also in these proceedmgs, the applicants have

failed to provide any detailed evidence in support of their

application. What has been placed before me is a pleading with a

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formal affidavit verifying it. Whilst he xigencies of

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interlocutory applications. which are often launched as a matter

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of great urgency, may frequently excuse what would otherwise be

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I unsatisfactory evidence, I can see no reason why, in the present

case, an affidavit should not have been put on detailing

precisely the essential facts alleged to give rise to a claim

under s . 5 2 of the Trade Practices Act. Where an applicant. who

could have supplied such details, simply does not do so. it is

necessarily more difficult for the Court to be satisfied that

there is a sufficient case to justify a grant of interlocutory

relief. In the present case, I have no context in which to

understand the alleged misrepresentation, said to amount to

misleading conduct within s.52, nor any evidence capable of

showing, even prima facie, that its effect fassuminu it were

established) was to cause any particular quantum	of loss to the
applicants.

I What is alleged is that an officer of the Eurasian Bank

misstated the total mount of the principal debtor's

indebtedness, at a time a number of months subsequent to the

qiving of the guarantee bp the applicants, but prior to the issue

of the letter of request pursuant to which apparently a major

l part of the debt was in some manner "rolled over". The

applicants argue that if the alleged misstatement had not

I	occurred they would have insisted that the principal debt be
called up then and there. It is obvious the s.52 question thus
I	raised might or might not, even if established, be shown to

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invc rlve an effect upon the ultimate liability of the applicants

to some significant extent. A number of other issues involving

the doctrine of non est factum, the law of guarantees, and

negligence are also pleaded in the Statement of Claim. All of

these matters would of course be cognisable in the Supreme Court

and some of them would 40 to the full extent of the alleged

liability. On the material presently before me, there is no

basis for concludinu that this Court is the forum of convenience:

there may be little legal substance and a small sum involved in

the 5.52 point while a very large amount depends upon possibly

real questions of the law of guarantees.

I do not think it is an appropriate case in which to

grant, upon such evldence, interlocutory relief which would go to

the whole of the claim of over $600,000 to which the applicants

have chosen not to file defences in the Supreme Court, and in

respect of which they have still not filed in any court

an

affidavit setting out with particularity the facts upon which

they claim to rely. Accordingly, the application is dismissed

with costs.

I will stand the proceeding itself over to a convenient

date for directions to permit the applicants to consider their

position, and so that, if they choose to make some application in

the Supreme Court, the situation in respect of that may perhaps

be known at the time'directions are uiven in this Court.

5.

I I I certify that this and the

four preceding pages are a

true copy of the Reasons for

Judgment herein of his Honour

i	Mr. Justice Burchett.
Date: 17 September, 1985
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