Waltip Pty Ltd v Capalaba Park Shopping Centre Pty Ltd

[1987] FCA 78

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) QLD G9 of 1987

DIVISION GENERAL )

: - B =TIP PTY. LTD.

First Applicant

AND: ANTHONY MICHAEL GEANEY

Second Applicant

AND: CAPALABA PARK SHOPPING CENTRE PTY. LTD.

Respondent

MINUTES OF O R D E R

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	16 FEBRUARY 1987
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. Subject to the condition that the first applicant

pay to the respondent the sum of $7,938, on or

before the 23rd day of February 1987, the

respondent be restrained from pursuing until

further order District Court proceedings number 16

of 1987;

2. Costs of the application be costs in the

proceedings.

Settlement and entry of

Order 36 of the Federal

T N THE FFDFRAL COIJRT O F AITSTRALIA	)
DUEENSLAND DTSTRICT REGISTRY	) QLD G9 of 1987

BETWEEN: WALTTP PTY. LTD.

First Applicant

AND: ANTHONY MTCHAEL GEANEY

Second Applicant

AND: CAPALABA PARK SHOPPING CENTRE PTY. LTD.

Respondent

PTNCIJS J. 16 February 1987

E X TEMPORE REASONS FOR JIJDGMENT

Thls is an application for lnterlm rellef. The

-_ applicants are a tenant and guarantor in respect of a lease of a

shop in a shopping centre. When the matter first came before the has been filed. However, the case is much the same as it was, In

that the clam 1s that the shop in question has a klosk very close

to it which obstructs the view of the applicants' shop.

The material discloses that the first applicant had

presented to it a plan whlch did not show any kiosk. The first

appllcant has also put material before the Court suggesting that,

at the time when negotiations took place between the first

applicant and the respondent, the proposal to put the kiosk there

existed, and one would have expected that the landlord would have

made that clear.

In my view, as a commercial matter, the presence of the

kiosk is likely to make a difference to the average tenant, and it

is a matter he would expect to be told about.

However, it is not necessary to speculate about that,

because, on the face of it, it seems clear that the plan which was

presented to the first applicant showed no kiosk. The only

doubtful point is whether, at the time when the plan was

presented, the kiosk was a firm proposal, and that is a matter, no

doubt, to be gone into at the trial. I am of the view that the

applicants have shown a prlma facie case, or a case requlring

investigation, and I am influenced in the direction of granting

the applicants relief of an interim kind by the circumstance that

the respondent, although it has had an opportunity to do so, has

placed no information before the Court with respect to the kiosk.

On the other hand, the proceedings in respect of which

relief is sought related to a cheque drawn on 12 November 1986 and

dishonoured on 20 November. In the view I take, it is only in

very unusual circumstances that a court should encourage or

sanction the dishonouring of a cheque. I think that busmess

people rely upon a cheque being substantially as good as cash,

subject to the possibility that funds may, through no fault of the

drawer, not be available. Here there is no suggestion of that;

the drawer simply changed his mind and withdrew the bank's

mandate. Although there is great force in much of what has been

. . .

J 3.

said by Mr. Fraser on behalf of the applicants, I do not think the

Court should grant relief in respect of that cheque.

I think the cheque should be paid and that the relief should be confined to restraining the proceedings if the cheque is

paid. The other point which was raised in the course of argument

by Mr. Perry, on behalf of the respondents, is what is to happen

with the subsequent liability to pay rental. Mr. Perry said that

a condition should be imposed that the applicant pay the rental

pending the disposition of the Federal Court proceedings.

I decline to accede to that submission for two reasons:

firstly, the application relates only to the cheque for $7,938.

No application has been made in respect to any future rental.

Secondly, It would seem odd, while requiring the amount of $7,938

to be paid, to grant the relatively inconsequential relief of

restraining the District Court proceedings on condltion that some

other sums which may, in the end, be much larger, be also paid.

On the whole, although there is some inconvenience

attached to doing so, I will, as regards the subsequent rental - that is, rental subsequent to the periods covered by the $7,938 - accede to the suggestion of Mr. Fraser and leave that to the

agreement of he parties or, failing agreement, further

application. It may be that the disposition of that question will

depend upon subsequent events.

The order which I propose to make is as follows:

subject to the condition that the first applicant pay to the

respondent the sum of $7.938, being the amount of the cheque

mentioned in the proceedings, on or before the 23rd day of

February 1987, I order that the respondent be restrained and an injunction is hereby granted restraining it from pursuing until further order the proceedings in the District Court, number 16 of

1987, the initiatmg process in which is exhibit	A to the
affidavit of Mr. R.M. Lockhart.

I further propose to order that the costs of the

appllcation for Injunction be costs in the proceedlngs in thls

Court.

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