TNT Australia Pty Ltd v Wilton Nominees Pty Ltd

(FOR LIMITED DISTRIBUTION)

IN THE FEDERAL

COUET

OF ArJSTRXLiX I

&S TEMFORE JUDGMENT

Betxeen: TNT AUSTRALIA FT'i. LTD.

(Applicant)

WILTON

NOMINEES

P T i .

LTD.,

JASEL NOMINEES FTY. LTD.

and

JOSEFH

W I L L I M 4 GEORGE

WILTON

!First Bespondents)

, decond

7 -

Respondents]

r-'Jram: Rlzan J.

W: 14 November 1386

EX TEMFORE REASONS FOR JUDGMENT

Ey these proceedmgs, the appllcant seeks interlocutory

in]unctions In the course of an applicatlon far rellef under

the Trade Frac t l ces Act 1974 rC'th1, t"th2 Act") and

otherwise, In respect of an agreement f o r the purchase by the

appllcant of a busmesa

from the respondent. The agreement

=as by deed dated

October 1386 and provlded

of a busmess carrled on undec the buslness

names

" . h t o

Care"

and "Auto Trans", yhlsh Involved the provlslon of

certaln

speclallzed iervlces In respec: cf 1mr;ortsd	and	l o c a i l y
manufactured nctor vehicle;.

It rjas reclted In c1.4.1

b ~ f the deed that ths bus1nesE

belng sold comprised qoodwlll, equipment, stock, rjcrk

orogress and the two

busmess names.

It xas aclpulated In

cl.4.2 that the

grlce payable bp the appllsant should be

calculated by addlng to the value

the stock and vork In

progress on the completlon date . an amount of ;l.l00.000

for

the

equipment:

and

$3,180,000

for the qoodwill

and

the

businzss names.

The deed further provlded f o r payment of a deposlt

$418,500 sn executlon, to be held bp the

respondent's

solicitors as stakeholder pendlng csmplctron. The prlse

for

the equlpmsnt and stoc!c

v a s to

be pald

on the completlon

date, rjhlle the

amount f o r work in

progress was t o bc

pald

for as soon as practicable after the work had been completed

and. pald For by the customers for xhom It was done.

That part of

the price referable to the

qoodxl l l

and

the busmess names. after deducting the amount of the deposlt and an allowance In relation to employee benefits, was to be

pald on completion. Sublect to the condition speclfied

c1.21 of the

deed, c1.5.1 speclfied that completlon

of the

purchass should sccur an 3 1 Ostcbsr L 3 3 6 , but I ;as

lnformed

by counsel that the complstlon da%e

gas subsequently ?xtsnded

by mutual agreement to

5 November 1386.

Under the headlng

"Assistance by

the Vendor".

c1.6.1

reclted that:

"As from the dats hereof and untll completlon the

Vendor

and

:Hr. Wilton m11 afford

tke

Furchaser S rspressntatives reasonable access to a l l operations, accounts, books and records of

the busmess I n order

that thsy may observe

the

varlous facsts sf

the buslneas and Inspect and

take extrarts and copies from the

accounts, boGka

and recorda thereof

. "

Clause 7

contamed an

extensl-".e recltal of the ;-endor

ijarrantlea, Incluclmg:

" 7 . 3

Each af %he

Vendor

and

the

Covenantors

zarrant

to the

Purchaser

thz

cruth

falrness

completeness

and

accuracy

of the

manaqement

accounts as at

the 30th

day of Aprll, 1956

pertalnlnq tu the business. bemq item 9 of the Schedule. and acicnowledge that the Purchaser has entered Into thls agreement relymg on such

accounts.

Clause 7.6.14 reclted that:

"The financlal

performance

a1 the buslness

disclosed by the

lnfurmaclon

glven

by or on

behalf

the

Vendor

the

Furchaser.

reflected In the said management accounts

the 30th day of Aprll,

l386 gas not materlallqr

affected by

any unusual

or non-recurring items

and no mat?rlal change has occurred In the assets

and llabllltles or

in the financlal performance

of the buslness from that disclosed by such Information prlor to the date of the exchange of

Then. cl. 15 .

c t e deed recited that:

"Th le

Deed

supersedee all prevlous

agreements

proposals and

negotlatlons Letxe.cn ths partles

hereto and the partles acknowledge that

no other

terms, sondltlons, warranties or

repres5ntatlons

are applicable to the

relations b e h e e n them

governed by this Deed save

as expressl:?

referred

to hereln or lmplled

by necessary lmpllcation."

The penalty Interest

I n default of

payment

any

moneys due to be pald b:r the appllcant as purchaser =as made

recoveralls by ~ 1 . 2 2

In the followinu terms:

"If the

Purchaser 1s at

any tlme in default in

payment of any money3

due

be pald by

the

Purchaser under th16

Deed then in addltlsn to any

other k-lghts and remedles

:;hlch

the Vendor may

have rn respect of such default, the Vendor 1 s to

be entitled to and the Furchaser shall to the

Vendor Interest cm the amount In default from the

date an xhlch it was due untll th2 dace on whlch

It 1s actually pald

at the rate

af 2 0 per cent

per annum calculated

on a dally basis."

Schedule S to the deed comprlsed a set of so-ca

,1128

"Management Accounts"

including a

document headed "Balance

Sheet" whlch

dlsclosed a net

profit

for

the

year

$1,472,432.

A document forming part

the same accounts

headed "Tradlng Profit and Loss Statement" showed net lncome for the year to date of $1,133,580 compared xith $69,984 for

the whole of the last year to

30 June 1385.

5 .

In the course of thls appl1satlon for

an lnterlocutory

~n]unctlsn, Mr. Hayes, for the appllcant, refsrred to four statements and reFresentatlYns. which are set out ln

sub-paragraphs tal, (h), (dr

and ( 2 1 of paragraph 11 af

the.

applicant's

statement

of clalm, whlch v a s flled m 11

November thls year.

Those atatemznts and reprsaentatlons

as pleadsd were:

Tke net proflt of the busmess f o r the	10
months to 30 April 1'386 sa5 $ 1 , 4 7 2 , 4 3 2	a5

shown In the balance sheet and proflt and ~ G S S statement a; at 39 B p r l l 1926, (a

copy of whlch is annexed hereto

and marked

'X'

;

the expenses of

the Business

fur the 10

months to 30 A p r l l 1986 idere as

contalned

In the profit and	lass statement as at 30
April 1986;

the April

accouncs accurately set

forth

the imanclal posltlon of the business; between 30 April and 18 October 1986 there

had been no decllne in the

net

profitahllity of the Business and that the

financlal informatlon contalned in the

April accounts accurately represented the

fmancial posltlon of the Business as at

18 October 1986.

Each of those representations or statements was. ~t was contended. false, and the maklnq of each of them vas conduct vhlch vas mlsleading and deceptlve or likely to mlslead and

decelve In contravention of s.5;

of the Act.

It was also

contended that. because the accounts of the

busmess to

June 1986, ghlch were made available

to the appllcant on 3

S..

"SubJsct alxays

to rlause

there has not been

(and as at zompletlon there x111 not have been)

any materlal adverse chanqe

the tradlng and

affalrs of the business

s m c e Apcl1 30, 1486."

The applicatlon, as amended by leave qrantzd by me

the course of the hearmg, includes the following	paragraphs
In the prayer f o r rellef:

" ( 21

An Order for varlatlon

of the Deed

Agreement between the appllcant and the first

respondents dated 18th October

1386 ("the Deed")

5 0 as:

(a)

to extend the date for completlon

the

terms GP the aqreement

untll

the

21st

November, 1986 or further order;

( b )

reduce

the

purchase

price payable by

the

applicant

tt-e flrst respondents

pursuant to the terms of the agreement;

( C )

to compensate the applicant for mlsleadiny

and deceptive conduct referred

to in the

Statement of C l a m . "

Then, the succeeding paragraphs	of the prayer for rellef in
the amended application claim:

" 3 .

Alternatively, rescission of the Deed.

4. Further.

andlor

alternatively

damages

and

compensation for breach

of sectlon 5 2 of the Act.

5. Further, damages f o r breach of warranty.

An order that pursuant to the terms

sf clause

6.1 of the Deed, the flrst respondents provlde to

ttie appllcant reasonable accesz to a1 1

operatlons. accounts, books and records	of the
business. "

By xay of interlocutory relief, the applicant: clalmed:

' I

. An order

that

until

the

hearlng

and

determlnatlon af che application herein or

further order

the

first respondents and thelr

ssrvanta and aqenta

he restrained from:-

(a) Requlrlnq

completlon

the

sale

and

purchasz under the terms of the

Deed;

(b)	rescmding the agreement contained in	the
Deed ;

t C )

forfeiting or

take any steps to forfelt

the deposlt

of	$418,500.00 paid by the

appllcant to the flrst respondents an	or
about 18 October 1386.

2 .

An order that

the first respondents comply

31th clause 6.1

of the Deed and provide to the

appllcant reasonable access to

all operatlons,

accounts, books and

records of the business."

On 5 November 1386 hls Honour Mr. Justlce Woodward granted

interim ~n-~unctlon

in these terms:

"That untll 5 pm on 6th day of November, 1386 or

further order the Respondent, xhether by itself

or by Its servants and agents

be restrained from

requirmg completlon

of the

sale and purchase

under the Deed betxeen the Applicant and the

Respondent,

Jasel

Nominees

Pty.

Limited

and

Joseph Willlam George Wllton bearing the date lath October 1986."

Then, on 6 November 1986 hls Honour, Mr. Justice Northrop,

after hearlng Mr. Hayes

of counsel for the applicant, and

for

the respondent its sollcltor In the rnornlng si that day,

and

In the afternoon	Mr. Glllard Q.C.. xith Mr. Colbran of
counsel, srdzred:

"That untll 5 pm

on 11 Novemoer 1986

or untll

further order the respondent, whether by itself

or by Its servants or agents, be restralned:

(a)

from taking any steps to enforce che deed

entered into between

the

applicant,

the

respondent, Jasel Nomlnees Pty.

Llrnited

and Joseph

W.G. Wllton dated

October

1986 ;

lb) from rescinding the

deed;

givlnq

any

directlnn

ot- doing

anythlnq ln relatlm to

the

sum

$418.500 referred to

111 paragraph 4.2

the deed.

I extended that in]unction until

pm on 12 November

1386.

and aqaln to

5 pm on 13 November 1386 and until further order

enable

ludgment

to be

qiven

this

morning.

The

interlocutory rellef whlch the applicant seeks was varied

from that set out

the amended application to provlde a

restramt on the respondent from taking the steps referred to

the

amended

applicatlon

for a period of 14 days.

Interlocutory relief in that form was characterized by

Mr.

Hayes as a

"period of

grace" in whlch

the applicant miqht

complete an lnvestigatlon by Its accountants of the financlal books and records of the busmess free of the constralnts

imposed by the service

on behalf of the vendor of a notlce to

complete dated 7 November

1386 xhlch purported to make tlme

of the essence of the agreement for the sale of the business,

and to requlre the appllcant to zomplete and to pay the

balance of the purchase moneys payable	on completlon at	or
before 5 pm on l4 Nx-ember 1986.

The notlce concluded

+nth a statsment that, unless the

appllcant so completed wlthln the sald perlod. then the deed

of sale was resclnded upon the explratlon of that perlod. It

vas

accepted by counsel

f o r

both

the appllcant and the

respondent that the Court shculd

flrst enqulre whether the

appllcant has demonstrated a serious question to be trled.

If satlsfled

that Folnt,

the Court should proceed to

conslder %hether the balance of convenlence comes down in

favour of or against the

grant

of an Interlocutory

lnjunctlon. See, for example,

Epitoma

Ftv.

Ltd.

v .

Australasian Meat Industry Employees

Unlon,

(No. 2)

(1984)

54 ALF 730 vhere a Full Court

of thls Court observed at 734:

"In an applicatlm for an lnterlocutory ~nlunctlon

the court must mqulre flrst whether there 1s a

serious question to Le trled (see Australian

Coarse Graln Fool Ftv. Ltd.

TT.

Barley Marketinq

Board of Oueesland

(1982) 46 ALR

398; 57 ALJR

435; Tableland

Peanuts Fty. Ltd. v. Feanut

Marketins Board (1984)

ALR 651; 58 ALJR

2 8 3 ,

per Brennan J.

2 8 4 ) .

the Barlsv

case,

Gibbs CJ sald ( 5 7 ALJR at 425) that he

Inclined

to the

view taken by the

House of Lords m

Amerlcan Cvanamid v.

Ethlcon Ltd. L19757 AC

396

rather than to some	of those expressed obiter in
Beecham Group Ltd.	v. Bristol Laboratorles Ptv.

~td .

(1968) 118 CLR 618; c19683 ALR 469.

would seem that the Chlef Justlce had in mlnd the

followlng statement of princlple

In the opmion

of Lord Diplock, concurred m by

the

other

members of the

House, In Amerlcan Cvanarnld

(at

p.407): 'The use of such

expressions as "a

probablllty", "a prima facle case," or "a

strong

I .

prlma facle case" in the

context of the exercise

of a dlscretionary power

grant

interlocutory lnjunctlon leads to confuslon

as to

the ob]ect

sought to be achleved by thls form

temporary rellef.

The

zourt no

doubt must be

aatlsfled that the claim

1s not

frivolous

vexatious; In

other words, "that

there 1s a

serlous questlon to be trlsd.''

' "

I am satisfled that the applicant has demonstrated,

the

evidence stands at present, at least two

serious

questions.

The flrst 1s ;;hether

the so called "Management Accounts" to

30 Aprll 1386 truly,

falrly.

completely

and

accurately

represented the flnanclal state

of the buslness as at

that

date.

Tne

second

question

1 s

xhether

the

financial

performance of the buslnesa had not been materlally affected

by some unusual item, or xhether there had not been	a
material change in the assets and liabilities or in the

financial performance of the buslness from 30 April 1986	to
18 October 1986.

There 1s also a serlous ancillary question of whether the applicant has suffered, or wlll suffer, damage

the

assumptlon that one or other of the substantlve questions 1 s answered favourably to the applicant. The applicaclon raises an interestlng question of whether the maklng of a

representation whlch

1s incorporated as a term

of a contract,

so that if

It is shown to

false the other party has

cause of actlon in damages, can amount to misleading or deceptlve conduct so as to give rise to a separate statutory

cause of actlon under the Trade Practices Act. However, it

4 l

11.

1s unnecessary for me to attempt to resG1-a that questlon In

determlnmg thls lnterlocutory appllcatlon.

The fundamental questlon

ralssd by the form of the.

interlocutory relief sought by the present applicant concerns

the nature and function of an lnterlocutory ln]unctlon.

Loglcally, perhaps, those matters ought to be explored even

before Consideration 1s glven to whether there 1s a

serlous

question to be trred.

However, In thc circumstances of

the

present case, It 1 s

convenlent to conslder that fundamental

question in the context of the balance of convenience.

understand it,

the prlncipal and most usual purpose of

Interlocutory ~n-~unctlon

is to preserve the status quo untll

the Court and the parties are ready for a final hearinu of

the actlon.

Thus rn

Preston v. Luck,

11884) 27 C h . D .

4.37

Cotton L.J. observed at 505:

"This is an application only for

an lnterloeutory

Injunction, the oblect of

whlch 1 s to keep thlngs

in statu quo,

so that, if at

the hearing the

Plaintlffs obtain a Judgment in therr favour, the

Defendants will have been prevented from dealing

in the meantime with the property

rn such a way

as to make that ludgment ineffectual."

Clearly, an

interlocutory Injunction expressed to operate

only until 24 November 1986 would not achieve that purpose in

the present case.

Indeed, Mr. Hayes did not seek to justlfy

his client's application for interlocutory relief

that

basis. He put lt that the appllcant had

sham a

serious

question as

to whether It would ultimately obtain relief

under s.87 of the Act, and that a limited injunction o f

the

kind sought would ensure that the appllcant

dld not take any

step whlch mlght

affecr: that entltlement wlthout having had

reasonable opportunlty to Investigate the truth, falrness,

completeness and accuracy

of the accounts as at 30 April 1986

and to lnvestlgate whether the financial performance of

the

business as reflected In

those accounts had been materlally

affected by any change before

1s October 1926.

Sectlon 87(1A) of

the Trade Practices Act provldes

that:

"Without llmiting the generality of section 80,

the Court may,

on the appllcation of

a person who

has suffered, or is likely to suffer, loss or damage by conduct of another person that was

engaged In (whether

before

or after

the

commencement

sub-section)

this

contraventlon of a provialon of Part V, make such order or orders as It thinks appropriate agalnst the person who engaged in the conduct or a person

xho was involved in the

contraventlon (including

all or any of the orders mentloned

In sub-section

\ 2 ) 1 If

the Oaurt conslders that the order or

at-dsrs concerned

compensate

will

the

first-mentioned person in whole or in part for

the loss or damage or will prevent or reduce the

loss or damage.

Sectlon 9 7 ( 2 ) llsts among the orders referred

to In s.87(1A):

"(a) an order declaring the ;;hole or any part of a contract made between

the person who

suffered, or is llkely to suffer, the

loss

or damage and the person

xho engaged

the conduct or

a person who was lnvolved

in the contravention constltuted by the

conduct, or

of a collateral arrangement

relating to such

a contract, to be

void

and. lf the Court thinks flt, to havc been

vold

In1 t 10

all

times on and after such date before the

date on whlch the order	1s made as 1 s
speclfied in the order;

an order

varylng

such

a contract or

arrangement

such

manner

speclfied In the order

and, lf the Court

thinks fit, declaring

the

contract

arrangement to have had effect as so varled on and after such date before the date on whlch the order is made as is so specified;

an order directlng the person

who engaged

In the conduct fir a person who was mvolved In the contraventlon constituted by the conduct to refund money or return

property to the person who suffered the

loss or damage;

an order dlrecting the person who engaged

in the conduct or a person who was

involved in the contraventlon constltuted

by the conduct to pap to the person who

suifersd the loss or damage the amount of

the loss or damage.

Mr. Hayes appeared to

accept, as I understood him, that

as agamst the

exlsting respondent the relief speclfied in

paragraphs

( c )

and

(d) was not materlally dxfferent from

damages at common

law for breach

of warranty. However, he

referred to paragraph

(a) as conferrlng a statutory remedy

rescission whlch may

granted In

clrcumstances in which

corresponding relief would not be available

law or

equity.

also indicated that the applicant may wish to

invoke paragraph (b) to obtain a

variation of the contract

embodled

the deed by

reducmg the purchase price

extendmg the date for completlon.

It vas to preserve the

availabllity

their

full

range

and

efflcacy

those

remedles, lt vas aald, that an lnjunctlon restralnlng the

respondent from requlrlng completion, resclndmg the

agreement, c c forfelting the deposlt =as necessary.

I was referred to Georqe Macqreqor Auto Servlces Ptv.

Ltd. v. Caltzx 011

(Australia) Fty. Ltd. (1980) 51 FLR

458,

In whlch h13 Honour Mr. Justlce

Northrop

granted

interlocutory mjunctlon restralnlng the respondent untll the

hearing and determlnatlon

of the actlon or further order from

treatlng

the

lease

of the service station as bemg

terminated. That

injunction

was

granted

aid of an

applicatlon under s.87 by a tenant for the deletion

of a

particular clause from the lease. However, in that case the tenant was not seeking to reserve to ltself any rlght to

rescind the lease and	the relief belng sought under	3.87 In
no way corresponded to	an award of damages.

Nevertheless, lt vas contended, by analogy, that I f

in~unction

of the kind sought Were not granted

to the present

appllcant, It would be forced to make

an election in

unreasonably short time between termlnatlng the contract

for

the respondent S breach and completlng it, thereby confining

Itself to Its remedy in damages. Here, Mr. Gillard conceded,

in my view rightly,

that completion of a contract such as the

present does not preclude the grant of any of the types

rellef lndlcated by

s . 8 7 ( 2 )

available under the

Act,

although an election In certaln circumstances may welgh

wlth

15.

the Court in exerclslng Its drscretion to urant or wlthhold

one or other of those remedies.

I am reinforced in thls vlew by What Northrop J.

sald

In Mlster Fiqqins Pty. Lcd. v. Centrepolnt Freeholds Fty. Ltd. (1981) 36 ALR 2 3 , vhere hls Honour observed at p.60:-

"Although

the

dlfficulties

Inherent

In the

traditional

problems of declding

xhether

resclnd a contract or to affirm the contract and

sue for damages in the event of decelt are to be

avuided as far as possible

in proceedings under

ss.82 and 0,7 GI the

Act,

nevertheless

some

consideration and Weight muat

Le qlven

to the

actlons of the parties after knowledqe of the those types of difficulties, but at the same tlme

existence of mlsleadlnu or deceptlve conduct.

the conduct of the parties.

and m the present

case particularly the conduct of the applicant,

is relevanr; to be considered In the exercise of

the discretion conferred by

5.87 of the Act, and

partlcularly

for

present

purposes

determining the amount

of damages to be recovered

under

S . 82.

I was a l so referred to Hannam

v. Lamnev (1926) 43 WN (NSW) 68

where the Chief

Judge in Equity, Harvey

J.,

granted

lnterlocutory injunction restraining

bankrupt defendant

from drawing on a bank account to the extent to

xhlch it had

been augmented by moneys

of the plaintiff purchaser of the

buslness

who

v a s

seeking

rescission

the

purchase

agreement.

However, that case, m my vlev, falls Into a special category in whlch injunctive relief

1s granted to ensure that

10.

there

w ~ l l

stlll be assets from xhlch

a plalntlff may satlsfy

a ludgment If and when one issues in hls favour. It

wlll be

apparent from what has already been sald that

an election by

the appllcant to perform this agreement by

paymg the balance

of the moneys due

completion, does not preclude the

exercise of the Court’s dlszretion

under

s.87fZ)la)

declare the contract to have been vold ab initio

or to have

been void at all times on and after a date specified in the order and to order repayment of all moneys paid thereunder.

The other orders whlch

may be made under s.87(2) in

case such as thls

are even more closely analogous to

an award

of damages.

Accordingly,

I am not

persuaded

that

injunction I n

the

form

sought

for a limited

period

1 s

necessary to preserve some presumptlve entltlement

the

applicant, the loss of whlch cannat be compensated

by an

award of damages or

an order under s.87

for payment or

repayment of a sum of money.

In additlon,

grant

such

an lnjunctlon

would

effectively extend the date for completion agreed on by the

parties,

and

thereby

afford

the

applicant

these

interlocutory proceedings a measure of flnal. relief of the

kind indicated m

s.87(2)(b).

It is true, of course, that

the appllcant would

be bound by its

undertakmg as to damages

to compensate the respondent for any loss occasloned by such a varlation of the contract, if It should ultimately be held

that It should not have occurred. However,

I consxier that

such an lrrevocable order should

only be made where no

other

means are available to protect the

applicant's position.

Moreover,

grantirlg

such an ln]unctlon

and

effectively extending the completlon date for

fortnight

beyond that agreed by the partles, the Court would compel the

respondent and Its

directors to contlnue the manauement

the

conduct of the buslness

for that

period.

Should

eventually be held that the lmposition of such

a burden was

unwarranted,

It may be difficult to quantlfy the monetary

compensation which the appllcant should be required to make

pursuant to Its undertaking as to damages.

This is another

consideration which inclines the balance of convenlence in

favour of the respondent.

On analysis, the only factor whlch can properly be put

into the scale by way of inconvenlence to the applicant, is

the

rlsk

that

the

respondent

may

dissipate

the

moneys

received by way of

the whole purchase price or the deposit,

so that an ultlmate pecunlary

~udgment In favour of the

applicant wcruld not

satisfied.

See

Hannam

Lamnev

(Supra) and Heavener v. Loomes

(1924) 34 CLR 306, where the

majority of the

Hlgh Court, (Knox CJ and

Cavan Duffy and

Starke JJ.) in a ~oint ~udgment

observed at 313:

“The money In dispute has actually been paid over

by the defendant Dennis to the defendant

Loomes,

1-1. .

and there lz no evldence vhlch snables us to afflrm that the defendant Loomes 1 s impecunious

or In such a posltlon that the moneys cannot

recovered by the plalntlffs If they establish any

rlght to them. We think the Interests of justice

are best served hy glving them an opportunity of

establishing that right

at the hearing of

this

sult,

wlthout encumbermg the

defendants

unnecessary restrlctlons."

It must be remembered

that the amount

of the deposlt under

this deed is $418,500, and the amount by whlch the applicant

may have paid too much for the buslness

has been estlmated by

its own accountant, Mr.

Wrlght, at $ 7 2 0 , 0 0 0 .

In these

circumstances there 1 s nothing in the evidence from

whlch it

can reasonably be Inferred that there is a real risk of the respondent being unable to satisfy any monetary ~udgment

whlch the applicant mlght recover agalnst

Lt.

Moreover, as I was remlnded by Mr. Gillard, Mr. Wllton,

the managing dlrector of the respondent and the movlng force

behind the development of its

business, and Jasel Nomlnees

Pty. Ltd., which was one of the covenantors to the warranty

clause in the

Deed, and 1s the trustee of Mr. Wilton's family

trust, and the owner

of certaln real estate

on which

the

business

being

conducted,

could

both be joined as

respondents for the

purpose of obtaining

relief

under

s.87(2)(c) or

(d). That would form

an added measure

assurance of full

recover of any

moneys to whlch

the

appllcant may be found

to be entitled.

I am also comforted, in comlng

to the conclusion which

I have, by the

fact that the combined researches of

counsel

have been unable to dlscover any reported caze

m which

m~unction

of thls

klnd

has been granted ln clrcumstances

such as the present.

For these reasons, the application for

an lnterlocutory

~nlunction

In the form of paragraph

2 of the appllcation for

interlocutory relief in the amended application,

as modifled

in the course of argument, is refused and the

in~unction

granted by

Northrop J.,

and extended by me until further

order, is dlssolved.

In view of that refusal of the principal interlocutory relief sought by the applicant,

I am not disposed, without an

opportunlty for a complete investigatlon

of the relevant

facts and full argument, to grant, by

way of

interlocutory

relief, a mandatory

in~unctlon

in the form

of paragraph 2 of

the appllcation

for

lnterlocutory

rellef

m the

amended

appllcation.

I consider that the givlng

of dlscovery and

answers

to interrogatories wlll appropriately secure the

applicant access to the

books of account and other records

the business, and other relevant information,

which it may

reasonably require for the trial

of the application.

I certify that thls and the precedlng

eighteen (18) pages are a

true copy

of the Reasons for Judgment of the

Honourable Mr. Justice Ryan.

7?w :v-%%

Assoclate

Dated: 1.r d e d e e a

'5s 6

[1986] FCA 606

14 Nov 1986