CATCHWORDS Trade practices - consumer protection - misleading and deceptive conduct - lease of shops - re-entry by Lessor - source and nature of power of court to grant interlocutory injunctions restraining Lessor - prima facie case - balance of convenience - discretion of court - right of set-off in absence of proceedings in court - repudiation of lease - acceptance of repudiation and re-entry. Contempt of Court - effect of commencement of proceedings - subsequent direct action by respondent, Federal Court of Australia Act 1976, ss.23, 31, Trade Practices Act 1974, ss.52, 53A, 80, 82, 87, Federal Court of Australia Rules, 0.25 rr.l and 2, 0.40 r,5, Crimes Act 1958 (Vic.), s.207. Property Law Act 1958 (Vic.), s.146. Supreme Court Act 1958 (Vic.), Part V121, Division 5, ANTONIO CATALFAMO AND OTHERS v, HERSFIELD HOLDINGS PTY. LTD. AND OTHERS Federal Court of Australia V.G. No's. 42, 44, 46 and 70 of 1981, Coram: Northrop J. Melbourne 1l May 1981. IN GEE PENERXL COURT CF AUSTR LIS V.G. No's. 42, 44 ra VICTOPRTA DISTRICT FEGISTRY and 79 of 19°] GLNELAL DIVISION ww HS BET. CEN: iio. 42 of 1931 ANTONIO CAT*LE1'O Applicant and HERSFIELD NCLOINT2 PTY. LTD. Fosponcent No. 44 of 1981 VASSILICS CCLLTA*S, JCM DCUNIS CET DCUNTS Applicants HEPSPIELD [PCLDINC?T PTY. LID., TE DOVLLOPIENTS COFPOR™ me POY. LP. and CEOrGE a=eFsCU Responcents No. 45 of 1981 GOLLIVOG INVOSTULATS PTY. LTD. and HERSFILLD EOLDI"CS PTY. Lm oy EDRSPICT DEVELCPHLN I= COTPOTATIC® PrY. L'D. and CEORSiL TaRecu espondents Wo. 70 of 1981 JCIR] NUNITIO GI*CCUT HOPCPICLE ECLOTVGS Poy. LID., HETIPTELDS DLVLLOP IEPs COPPSPS ITA PLY, TES. ond Pespontintc NGRTHRCP J. REASCNS FOR JUCGUENT li tay eel. A number of motions in eech cf the oeppliceticns herein have been heard together with the consent of 211 parties. Hersfield Developnents Corporation Pty. Ltd. (nereinaftcer called "the Devoloper") and Hersfield Holdings Pty. Ltd. (hereinafter celled "the Lessor") are essociatca companies and each is a corporation uncer the Tralve¢e Prectices Act 1974 as amendec, (hereinefter call22 "the Act"). ceorge Herscu is the Managing Cirector of each of those corporations. During the yeare 1978-1979 the Developer wes engaged in developing a new shopping centre and market-fleco at Deer Park to be known 2s "Deer Park Shopping Centr>" (hereinafter calicd "the Centre"). The Developer was ft eaking to attract persons to conduct their businesses in the Centro end fer that purpose to enter into lecses cf shops within the Centre. ithore than one hundree shops were planned ond a mayor tenant nad agreed to conduct a Safeway supermarket in one of the shops. The Lessor was to be tne lendlord cf the shorcs and for present purposes it 15 sufficient to say that the leases enterc? into by the verious tznants were in a common form. fey] we " ba fo} "y a co) a cs) cr o "s November 1979 the Lessor grantca pe ep Jerso cf Sacer fa, 22C te "ntenio Crtelfiro for 2 term cf ninc years with an option for ao further three yerrs et cr Initicl rent of $19,932 per annum poyable calerfrr sworthly in advance on the first Cay of cach month at the rate of S1,5%6 The lessee was requirceé to carry on the business of ¢ "Reteil Butcher including Poultry". By a lease dated 9 July 1979 the Lessor grante fey Ls) Oo ty iat BS) lease of Shep tio. 71 to Vassilios Collizs for a term years with an option for a further two yerrs ct an initial rent of $13,294.44 ver annum payable calerder nontniy unr advance on the first of each month et the rate of $1,117.22. The lessee was required to c®rry on the business of a "Jeanery". The Lessor allowci the lessee Le) allem $} faa i) ) Th $3,394.64 as an esteblishment ellowance for the firet yeor of the lease, and accordingly during the first yoar the lossen was reculred to pay $10,099 per annum ($932.22 per calender month) in licu of the $13,394.64 per annum ($1,116.22 ptr calender month). By 2 lease dsted 7 May 1980 tne Lessor grented a lease of Shop No. 90 to Golliwog Invectments Pty. Ltd. (hereinafter callec ""Gollisog") for @ term of six ycers wit' an option for e2 further s.lx yrars et an iritial rent of $8,950 per mnnun payable celendar aenthly in rdvence or the first of each month et the rate of $671.57. The lessro 1475 reguired to carry on the business of "Gifc Shop -zne Jewcllery". By 2 lease dated 21 Sertonber 197¢ tne granted 2 lcase of Shop "ce. 89 to John Giocchi for 2 term of two ycers with options for three further periods of: two years, cach et an initicl rent of $5,490 per annum poyrbie calendar monthly in advance on the Cirst of eech mort -t the rate of $474.17. The lessee wes reauired to cerry on the business of "Ladies' Fashion cond 4ecessories", Each of the four leases commencec on 27 Novemner 1979. Pursuant to the leeses, cach less "a ew y s required to install the fixtures, fittings, equipment, floor and wcll ' reoverings end stock as necessary to fit and cquip the shop for the business to be carricd on tnerein. Clause 5.90 of it each lezse required the lessee to pey the rent reserved by the loase, and by Clause 5.04 cach lessee "covenants with the lessor to pay the aforesaid annual rent ... by the peyments on the detes and in the manner aforesaid ... and to make such payments without any prior demand therefor an@ without -ny abatement, deduction or set-off wnatsoever". Clause 6.90 of each lease required tho lessee to pey or if necessary to reimburse the Lessor all ppportioncd outgoings as defined in the leasc. Clause 14.095 of cach lcese required the lessee to become ard remain a member of @ iferensrts' Associrtio.n coneistirg of the tenants and cther occupants of the Centre and te contribute towards the overctions of thet associrztion cm emeunt cL net lccte thon 1 carte (or seuare fool por roerth of the areo of the demised premises. Cleuce 14.8 of ser) lease contained provisions relating to Jefrult by tht Iccee and re-entry by the Lessor, c.f. Property Lew Vek 195° as et ee re te (Vic.), s.146. The commercial expectations for the Centre werd not s) fulfilled. It is truc to say that the Centre proved to ha a financial disaster. 4 lerge number of shops remtined v errt. The applicants, together with other tenants at the Centre, were unable to make a finencizl success of the busircsscs they conducted in sheps Jecaesed from the Lessor. Tro applicants were unable to make, end in foct did not treko, the payments to the Lessor of the amounts of rent, outgoings end contributions for the tlerchants' Association which thoy vere required to make under the terns of their lezses. Atter "3 a t were made by the Lessor to cssist the applicants ane other tenants. By a letter in common form cated 20 Februcry 1°70 the Developer on behalf of the Lessor wrote to a number cf tenants at the Centre, including the lessce appliconts, a follows: "Dear Tenont, re: Shop No. Deer Perk Lhorni7 ne acne aa Your Lanélord rececgnizes the "1fficultiics wit the initial opcnirg of 2 new thopping centre ane the ability cf Petailers to treic ot 2 satisfactory level on cemmencentent - perticulerly thosr who are new to snopping cenire and pernaps to ictcailins jeorerally. In vicw of this frct end in crder te provide retailers ot cur Doer Perk shopping Ceoncre with an opportunity to esteblizn continulcy and develcpacnt of trading, tne anagemont of the Hersficld Group cre prepared to alles you a2 rental ebatemont of 502 for a2 periat af twelve (12) months from 27th November 1975, the date tnat the Centre opencd. We expect that tracers will, in their ovn interests, meke every effort to exprnd their businesses. A meeting will be held in Cctober/Navember 1989 between yourselyv>s end our ifansqement 6 that this Company nay assess the level of your business activity at thet time to rovicw the abatement based on that activity and decide a repayment program. As agreed, oall outstanding rents from 27th November 1979 ere obated by tne above anount and the Centre ilanager tir. P. ilorrissey, end tir. E. Donalé of this office wiljJ contrct yeu regarding pzyment of the balence of half rent and the outgoings. We would appreciate your acceptance of these arrongements by providing your signature ain the space proviced below. A copy is enclosed for your retention. Yours faithfully, HERSFIELD PLVELOPILN TS COPPORATICN PTY. LTD. M. il. Anderson, FINANCIAL COMTFOLLER." ° mm There appears to be a latent inconsistency in the terms the letter. In the second prragraph reference is mede te rental abrterent of 5093 fer 2 period of twelve (12) montrs from 27 November 1979, the date that tne Centre onene?", while the words used in the fourth rrreqrzph seem to suggest tnet tae "cbetemert"™ is in roality - deforrel pryment to peic pursutnt to @ repeynent oregreat? Jccided upon follc.irg an assessment of the business ectivity tssessea in October/tovember 1930. It 1S not necessary to Getermince firt latent inconsistercy for present pur * ° wr [o) na Tne commercial activity cf the Centre did rot improve end the applicants wer? not able to conduct their businesses on a profitable bosis. They did not pay rent, outgoings or contributions. On 1 August 19280 @ letter written on behalf of the Lessor was forwarded to Antonio Cetalfamo and John Glecchi as follows: "I hereby confiry the erraengements made between us concerning your rental. Hersfield Developments Corporztion Pty. Ltd., agrees to abate your monthly rent by 199% for the month of July, Avgust end September 1930. You will be recuired to poy only your outgotngs for thos< months plus any emounts you cen manage egcinct your existing 2rreers, 1f any. The situation will agein pe reviewed at the end of this period." This letter makes no reference to repayments of ront "ahetcd" for eecn of the morths July, August 2nd Septomber 1980. Cn 23 Aetover JOSAH a letter written on behoif of tne Lesser was forw2rced to Vessilios Collias as follovve: A further Vassilios "With roferenca to our "1scus¢ the recent Lossce re of robbery, I wish to agvis This compeny will cnde>vour to assist you 17 any way thet we can, to regain you trade. tat ) lon na Lo o Me tt oO As an immediate gesture we will:- 1. Write off 50% of 211 monies owel tec us by you as cf 21.10.29. 2. Reduce your rental from $833.37 ner nonth to $216.67 per ronth commencins on 1.11.80 end contintine until such time as we (Hersficld Coveloptents Corn. Pty. Ltd.) lcese space to 2 ™ajor teneont. Tt is anticip-ted thet this will be some time sround Februcry 1981. 3. Reduce your cutgoings costs from $273.5° per month to $124.79 per morth. Cnce again this arrengement will be the sate as for the rental in terms of time. As you are swaere, I om having further discussions with ny Heed Cffice regarding tne possibility of further -ssistance ctrd I wall advise you as soon as pocsible of the result. I trust thet this situation will cssist you in your time of trouble are I sincerely wish you good luck." letter dated 31 October 1930 was forward<4 Colltas as follows: "Furthor te my letter cf 27.19.°0, IT wish to advise that, as ¢ Eurtuer cencassion, your new rent structure will revrirn in ferce vuniti) the 31.5.81. a It cneuld be unserceeo furcthor ocnteonicc if the to acquired another mcjor tonent by thet time. Various tenants at tne Centre hove msde allcg7tiocns that the respondents had ""engzged in conduct *hich contravened the Trede Practices *et™ and that they wore contemplating teking proceedings in the Feceral Court under wn the provisions of the Act. ome procecdingc haa been Ou commenced. The Lessor hia threatened, and in seme ccees he cD] commenced, legal procesdings in the County Court against so tenants seeking the recovery of unpaid rent. The Developer continued to explore wrys to make the Centre commerciclly successful. One method clopted was to seek a major tenant to conduct a lerge retail outlet at the Centre. In ortecr to enable that to be done, a lerge number of existing srops h-<¢ ct fe) to be demolished to enable a sufficiently large area become available for the najor tenant. A number of shops try that would be demolisned were already leascd to tenants ane accordingly, those tenants wouleé need to vacate their existing shops and be re-located in other shops at the Centre. On 22 October 1980 a mecting of tenants at the Centre was held and attended by George Uerscu ana other officers of the Developer end Lessor. Sone seventy peorls attended representing some forty tenants of shops. The meeting was informed cf negotiations tnen undorway to cbtract i¢3) @ major toneant, some ncemes menticne? being .colwortns, Target and Kiart. Langtny discussions occurred, particulerly with respect te seropeerls For the r2-locetion ¢c1 ¢hops of seme - 10 - tenants end how thet would ko effecte? and ct whose cost. Ry letter in common form dated 31 Cctoncr 1980 the Dev2leper and the Lessor wrote to a number of tenants in the Crrire, including the applicants, as follows: "This letter 1s writken on behalf of ilersfield Holdings Pty. Ltd. and flersficld Developments Corporation Pty. Ltd. You presently occupy shop no. at the Poor Park Shopeing Centr2 unéor the terms of -@ lease granted by iersfield Yoldirgs Pty. Lt. ("Hersficld") deteca . Various allegations and complaints heve been made by you or on your behzlf in rejystion to the circumstances surrounding the grenting of the Lease. On 22nd October 1980 a meeting of tenents was held at which fir Herscu, on behoelf of Hersfield, put forward e@ number of proposals which, if accertecd, would resolve the present Situation and would cbvicte the necessity fer contesting your various allegations in legel proceedings. The purpose of this Jattcr is te set out Hersfield's offer in a form which will eneble you to eccept 1t ana so vary your obligations under the leasc. The offer 1s as follows: 1. Hersfield shall forgive 50% cf all debts (including rent oni outgoings) which you owed to it as at 3ist "ctoker 1980. 2. In the event that cny legal prococedings have been cormenced aqainst you Ln respect of your Jesrce, Nersfielt sroll forthwitn @iscentinue the sem> cn? gsnaall not seek poyncnt Cred you of any lege) costs incurr': in cernecticon tucroeyvitn. 3. As at and from ist Jovoenber 1939; (a) baer > oO be rent-l payable hy you under your esc on r wnMO-] Dr rrtocod to S$bN ne 17) - 1] - week; and (b) the outjoings payrble by yeu unecr your leese shell be roaduce: by 50% nyia) for a pericd ending on the dete rofe to in paregraon 4, The dete from which you will be = recuLred to poy the full srount of rent and outgcings provided in your lease shell be the 4@ate unon which oa" mejor tenant (21.6. 2 tanant sho leases in excess of 29,090 scurre feet of floor space) opens for businces at the CDoer Pork Shopping Centro. You will, one month after receiving 2 written requesc from Hersfield, dAnliver up posscssion of the said shop occupied by you end 2 surrender of your lease -s hereby varied to tersficld. Rersficli shall, simultancously, give you possession of = like shor at the Centre under a Lease to be then executed by botn parties end contzining terms tne ecusl of those then applying to the resijue of your lease as hereby varied. Hersfield Shall vey all reasoneble cests incidentz] to your relocation. The offer 1© conditionel upen your strict observance of the terms of poragrzph 2. In the event thet you do not meet your obligetions undor the loase 35 hereby varied, thon Hersfiele shell heave the following rights: (a) to require vou to vey the amount of the rental and outgol1 proviacd for in your leese as were not vericdc; (b) to take such legal proceedings against you 25 14 s incluging metters dcal our lagrl prececdings the boen Ci1scentinucd ag rinse paregrcen 2 above 3née 1 of the perk of your indebt te Hersf1el} forjiven under peregranth 1 7bove. < Py creeerting tois offer, you sholl -12- automatically release Horsfiell oer Hersficld Mevelonaents Corporetion Pty Ltd. end -ll of thoair directors cervenk and egents (for this purpose Hercfiel. akes the offer in this lettrtr in part 2 thelr rocuest end octs ¢§ thelr agent in securing this relcase) from all actions sults end demenés (wacther at common low, in equity, or unter any ctotute - ctrte or federal) which they noy now heve my have hed or mey hereafter heave in relation to the circumstances surrcunding the grenting cnd eccepten ce of your lotse or any claim for deneges rescission or any cther leqsl eguiteble or stctutory ' relief in respect thercof. If you desire to accept tnis offer then you may do so by executing tne copy of this letter enclosed herein at the place indicated and returning it to the Centre Waneger on or before 5th November 3980." None of the applicants accepted the offer corteircd in the letter of 31 Cctober. There appears to be @ serious discrepancy between that letter and the two lettors datz 22 October 1930 end 31 October 1980 respectively forwrrdsd to Vassilios Collias. From subsequent events, 1t 1S apperent that neither the respondents nor tir. Collias relicd or actei upon the two letters first set out above, and insofor as it may be material for the purpeses of determining the metions before the court, no relisnce can be or 18S placed upon tre contcnts of those two letters. By letter dated 16 February 1981, the Golic. o re oa] wr z= ») for Antonic Catalfem wrote a letter of demand te Develorer and the Lessor elleging thet their client entered into *1 ype tentrbione mode Sy bheir a leist by reason cf misr2 -13- servants and egents 2s a2 result of which he hea sufferad severe loss and dzmage. They denied their client owrd ony amount for rent of the shop, cince the loss 2nji €amnczqe suffered far exceeded what might otherwise be owing unter the lease, and threatened to commence proceedings in the Fedcr2l Court secking damages under s.82 of the Act and an order under s.87 of the Act to vary the terms of the leese by reducing the rent payable to the sum of $2,600 p.a. ($50 per week) with effect from 5 November 1979. In tne meantine an offer was made, without prejudice, to pay $50 per week rent with a similer proportionate sum by way of outgoings until the hearing of the proposed application. On 26 February 1991 the Lessor served upon ilr. Catalfamo 2 f1ifteen-day notice under Clause 14.01 of the lease relying, inter alia, upon non-payment of rent from Narch 1979 to February 19381 ($19,510.75) and non-payment of outgoings from April 19°G to February 1961 ($4,173.73). No peyment of the arroars wa ce] made, but within the fifteen days, on 13 'Sfarch 1 wo om 1, th application being No. 42 of 1981 accompanied by a statement of claim, was issued out of the Federal Court seeking dameces and a voriation of tne terms of the lease. The Lessor 1¢ tne only respondent to that application. An appearance w2s entered on behclf of the Lessor and on 27 "arch 1981 the court gave directions concernirg the future conduct of the procecdings. The Lessor has not taken ection pursuant to the notice under Clause 14.01 of the lease. By letter dceted 13 February 1981 tne solicitors ic Vassilios Collics, John Dounis and Catherire Dourts srete a letter of demand to the Developer and the Lessor ellcging that their clients entered into the business, an" in particular .ir. Collias entered into the lease, as = result is] ry various representetions mede by thrir servants and egents es a result of whicn their clients hed suffered severe losc ane damage. They denicd their clients owed money for rent end stated that in the absence of receiving a satisfactory offer they had instructions to commence proceedings in the Federal Court under the Act seekirg dameges and an order varying tune terms of the lease by reducing the amount cf rent payable to \ the sum of $2,600 p.a. ($50 per week) and to reduce the other monetery obligations by a similar proportion with effect es so varied from 9 July 1979. To protect "thc possessicn until the hearing of the proposed application" of their clients, they forwarded unwJer protest, 2nd on 2 'without projudice' basis, a cheque in the sum of $2,348.91 being roncer? 2t it Ae rate of $50 per week to January 1921 ($2,931.65) ond £Eer the s. month of February 1981 ($317.25). Correspondence then followed between tne solicitors for the perties with tne result that the Lessor refused to eccent that cheque and subsequent checues on the condition claimed and in 2ddition asserted a right to repocsession of tne sop or any cther right arising fron breaches of the unvaried leasa. Tn subsequent letters the soliciterc for the epplicents allege} that officcrs of the rigrenAent conpenios had tol? tr1r clients that unless they did not take an alvcerncstivoe srenm ze the Contre, the resrordents "youl4 take a bulldorer" tnrough the existing shop enji also threetcned to change th- lecke on the shop and a notice to auit would be served. On 13 "arch 1981 tno opplicttion being No. 14 of 19°91, scconpenicd by 23 Statement of claim, wes issued out of the Fejeral Court seeking damages and a varistion of the terns of the lecrse. The statement of claim contained allegaticns converning tho "taking of a bulldozer" but no injunction wis sought. The applicaticn named the Leveloper, the Lesser 7nd Ceorge Herecu f as responeonts. An appearance wes entered on behel re respondeit and on Friday, 19 April an or@ger was nade ky consent giving directicns concerning the future corduct of the proccedings. On 6 June 1980 yuedenment in the County Court an ine sum of $4,673.10 and $209.80 costs was entercd in d2foult in favour of the Lessor against Golliwog for errears of rent snc other monies owing under the lease granted toe Golliweoa., The judgment debt was not paid and execution hrs net bean bol. In February 1981 negotiations toox place between officers of the respondent conmponies and a daAairsrctor of Goill.og corcerning the agreement by which Gollivog voul+ a re-locateJ in enother shan at tre Contre. Thx peartics Gisputcd whether any egqreement wes reached, but 16 15 wt nececcary to 'letarmine thet digrute for present surto7.s. Gollisog acs tr " ro] 163] fra te) ae) fe] + fe) nave tee County Court Jucaterk - 16 - set aside. It has not paid rent, outgoings or contributicns Since at least November 1980. Cn 19 viarch 1281 the application being Mo. 45 of 1981, accomnanied by @ statement of claim, wes issucd out of the Federal Court seeking damog2s and a variation of the terms of the lease. The srrlicetion r named the UCecveloper, the Lessor and Ceorge Herscu cs respondents. An eppearance was cntered on behalf of ec2ren respondent and on Friday, 10 April cn order was made oy consent giving directions concerning the future conduct of the proceedings. On 6 June 1930 judgment in the County Court in the ' sum of $2,045.79 and $149.39 costs was enterc'4 in default in favour of the Lessor against John Giacchi for arrears of rent and other monies owing under his lease. Tho judgment ¢cbt has not been paid. In February 1991 negotiations took plzce between officers of the respondent company and Mr. Giccceni, and by letter dated 24 February 1°81 written on behalf cf tho Lessor a fresh offer concerning re-location of his shop woe made to wir. Giaccni. This offer was in similar terns to tne offer contained in the letter of 31 October 1931. Cn 27 February 1981 .ir. Giacchl signed an acceptance of that offcr. Mr. Giacchi claims that that cgreement wes subject to conditions precedent which nave rot been sarisficc ard ac as therefore not bound by it. It 1s not necessary to detertince that issue for present purposos. Nr. Gieccnhi has not pais rent, outgoings or cortriosutions sinec at lorst November -17- 198C. Although instructions had been given, the applicction being No. 70 of 1961 was not issued out of tne Federal Court until iionday, 13 April 1981. By tnat epplication .t1. Gieechi is claiming damages, a variation of the terns of his lerse and injunctions. By tne end of the yerr 1930 fend in the e2-Frly months of the year 1981, tur. Herscu considered it essentiel for the future viability of the Centre that 2 major tenent te attracted to take a lease of shops at the Centre. To enable that to be achieved he considere? it essential that th2 Lessor obtain posscssion of Shops 23C, 71, 89 and 90 then leased to and occupied by the lessee applicants. These iv) applicants had not acceptec tne offers contained in th letters of 31 October 1989 and for practical purposes vere not acting on any supsecuent agreements. They were making no unconditional payments of rent, outgoings or contriput'ons and, apart from lir. Collias, were making no poyrents wnatsoever. By remaining in possession of thcir shops those tenants were preventing the resrondents aking the action they considcred essential for resuscitating the failing Centre. The Lessor sought legal advice which as subsequently confirmed by a written joint 2ivice by counsel dated 13 wiarch 1981. In suostence, the eadvice sovght wes whethcr the Lessor was required to comply with the notice requirements contained in Clause 14 of the leases or the Provisions of 5.145 of tn. Proporty b-. A'ct 195° as a condition precedent to it Getrravining the lerecs 2n3 re-entering the demriseée oremises. The substances of th> advice given was that lf there wes 3 eufficicnt frcturl foundstion to cstablish thet the tenants nad repudiate thor obligations under their individual leases, the Lessor could accept their repudiations tnereby determining the lcases ona tnereaftcr re-center the premises as a matter of proprictary right and not pursuant to any *xpress provisions of tne lezse ro in question. Alternotively, the Lessor could commence lege proceedings to recover possession following the giving cof the requisite notice under Clause 14 of the leases. The Lessor nad to dotermine which of these two courses he desirec co \ take. The difficulties, uncerteintics end dongers involved in exercising the power of self-help was referred to in that advice. As a matter of judgment George Herscu Jecited te cect in eccordance with the opinions expressed in the joint Avice and to accept the repudiation of the lerses by the lessec applicants. He gsve directions to officers of the Lessor end of the Davcloper to prepsre for the accrtptance of tho repudiation of the leases by the lessec applicants and te re-enter ths shops concerned. Trere then followed what has been described as a military-type operation plenned end aut into effect with great secrecy 2nd resolution. MNetices of ecceptence of repudiation of the less.s were preparc?. They were in common form with necorszry varistions havirg regs ccch lease. The forn of to the perticuler fects effectir g the neticcs con Se aldustret-d by reflrence to tne notice - 19 - affecting Shop 23C leaseé to Antonio Catalfsmo. The novice wes headed as follows: DATLE TALS It was cddressed to Antonio Cetalfeno 2nd identifier the shop. Lengthy recitels were tnen set out. These referred to the lease and certain terms of the lease, including the covenants to pay rent, to fay outjolngs and to pa contributions. Covenants conteined in other clauses of the lease were recited also. The recitals cileged that those covenants had becn broken and particulars were given. Some of those particulers are set outs: "C. That the abovementioned covenants and/or agreements have been broken ang the particular -Ereaches complzined of are:- (a) That the Lessee has failed to pay Lo the Lesser the monthly rentai notwitnstcnding that the same became due and pcyable after the commencement 'date. FARTICULARS Rslence Pebruery 1929 Rent 103.29 Balence June 1920 Fant 688.7? October 19A8f Pent 792.00 Balance Novenkber 19°09 Rent GOT l40 Belance Peceroer 1°30 Fent 1284.13 Jenuary 1931 Fent 1520, %0 - Balence Fobrecry 1°91 Rent 14246,09 tierce h 19" Bont 1584.90 Avril 1l9FL Tent 13749 ,.80 SOREA LES (f£) (b) That the Lesser as friled to nav the Lessor the prorer mnerthiv proportion of apportion-ble out- goings 2s cortrputed 2nd notified by and/or recucsted by the Lessor. PARTICULARS Balance Jenuery 193% Out- — goirgs 37 Februsry 1989 Sutgoindis 396.31 March 19°C Sutgcings 396.91 Balerce April] 1920 OQut- goings -40 May 1930 Cutgoings 394.81 June 1990 Cutgoings 396.31 July 1930 CutgeLinags 396.81 August 1°90 Gutgourgjs 296.81 Balenc® Cutgoings 1973/1926 at 26th August, Jota 39.86 September 1939 Outgoings 462.95 October 198N SCutgoings 462.95 Balance "November 1920 Out- goings 231.48 December 1990 OSutgoings 462.95 January 1921 Ovtgoings 462.95 February 1991 Cutgoings 462.95 March 1931 Cutgoings 462.95 April 1981 Sutgoings 462.55 $5,893.62 That the Lessee failed to contribute towards tne sald Merchants Association and pay the levies proporly required by Lt. PARTICULARS ilaren 1930 Contribution 63.49 Poril 1960 Contribution 63.49 May 1930 Contribution 63.49 June 1980 Contribution 63.49 July 195C Contribution 63.49 August 1900 Centripbution 63.49 Septembcr 1950 Contribution 63.49 Cctokcr 196° Contribution 63.49 November 1°79 Contribution 63.49 December 19279 Contribution 63.49 Jerucry 29%) Cantribeticn 632,49 Februcry 16°) Contributicn 63.49 Wercu iff] cCorcripvtien 53.49 April 1981 Contributions 63.49 - 21 - Particulars were given witn respect to tne other covenants referred to earlier in the recitels. the Particulars set out in peragrapn C.(a) were based upen tne abatement of rent referrcd to in the letters of 20 Februcry 1980 and 1 August 1980. The recitcls then referred to tnosc two letters, Fecital D, ane tnen continued: "(c) The @eferred abated rental emrounting in all to $11,854.13 and mode ur os follews is now due and peycble by the Lessee but is unpaid. PARTICULARS November 1975 104.25 December 1979 793,99 January 1980 793.00 February 1°50 793.00 viarch 1989 793.00 April 1930 793.00 May 1980 793.90 June 1930 793.00 July 1980 1582.00 August 1220 1556.00 September 1980 1584.09 October 190 793.00 November 1920 677.25 The recitals then referred to the letter from the applicants' solicitors dated 16 F2bruary 1981 and the statement lessee did not intend to vay future instalments of rent 2nd outgoings as end when they fell duc, but in licv to pay st ao per week together with a similer croporticnzte sun by woy of outgeings before tho heoring of the opmlicetioi in ts Fedcral Court, whicn was proposcd to b conscquenc? of the lease - 272 - nn issued, cand that cf the Lessor anticipated future recurring brerc.itt The recitals then referred to the applicttic issucd out of the Pederal Court on 13 Merch 19%] an notice of non-payment continucé: default under Clause 14.91 of the lerse and of thea sum theroin referred to, and "THE LESSSOR NO) HEFEPY GIVeG YOU TEE LESSce NOTICE TI*2: 1. Each of the mnztters referred to in Recitals C, DPD, E, F and G conetitute a repudietion of your obligation as provides in the Lease; cnd also, of the relationshiy betyeen landloré end tenant provided for therein; ee of such =: Nature extent and degre as to mak2 the continuation of the "Lease ond the relationship unaccept2ble to the Lessor. The Lessor elects to and hereby does accept your repudi2ticn of tne obligations es provided for in the Le-se; and, of the relaticnshin between you es tenant and it as lendlord; and cn the basis thereof hereby Ceternines the Leese and your right to possession of the premiscs os tenant thercunder. Such determination is without to the Lessor's rights to s dameges in respect of the-c referrec to in the said Poecit your wrongful rerudiation of the L The Lessor hercby domrnds thet you fortryita cult - possessior of the premises. That it 4196 the antcntion cf the Lesser to forthwitiu enter upon and teke pessession of the »ererisos." thon -~ 3 - The notice wos dates 9 \pril 1981 and wes ecrve 4 on Antonio Catolfrmo et his shop at the Centre at cbout 17 noon on Saturdsy, 11 April 1931. A similar notice dated 9 April 1981 wes prencri3 and directed to Vassilios Collies. The rent ellaged te be unpaid on the hasis of the chaterent errangements beind in Operation extended fron Septembor 1280 to April 1° sO ] and amounted to $5,947.04. The outgoings allwged to be unraid extended from a balance for the year 1979-1980 and fron September 1980 to April 1981 2rd anounted to $3,159.55. The contributions alleged to be unpaid extended from Tuly rast to April 1981 and amounted to $375.20. Tho deLlorred sabeter rental alleged to be owing extended from November 1979 to November 1980 and amounted to $4,956.93. Tne reeirtals included a reference to the procecdings in the Pederol Court being No. 44 of 1981, The notice was served on Ves Collias at his shop in the Centre at eabout 12 noon on Saturday, 11 April 1931. Ue did not understand tne nature of the notice. He attempted unsuccessfully to contact his solicitors before he left his snop later that afterncon. A Similar notice, the date of which 15 not certo1n, was dirocted to Golliwoj. tne rent clleged to be unveld ca the basis cf the abetement arrangements being in oncretion extended fron January 1980 to Y%pril 198) end enountec to $6,6C5.53. The cutgoinje cllege? to oo unprid extende? Cre - 24 - January 1980 to Seril 193] end arounted to 74,130.24. Phe contributions allegcd to be unpaid eoxtenced fron Leccuver 1979 to April 1981 and emounted to $742.09. Tne dJeferrsd abeted rental alleged to be owing extended fron fovyembecr 1°79 to Novomber 1980 and cmeuntel to $4,025.35. The recictls included a reference to the proceedings in the Federal Court being No. 46 of 1981, The notice was served on Golliwo3z et lts registcred cffice, 5 Palmer Street, Jolimont, at ebout 5 p.m. on Friday, 10 April 1931. A similar netics dated 9 Apr:1 1921 was directz2i te John Glecchi. The rent alleged to be unpaid on the basis of the abatement arrengements being in operation extended fron March 1980 to April 1981 and amounted to $3,907.98. The outgoings alleged to be unpaid extended from April 16580 te April 1981 and amounted to $2,349.19, The contributicns alleged to bo unpaid extended from Scptember 1980 to April 1881 and amounted to $122.08. The deferred ebated rental alleged to be owing extendsd from November 1975 to Novemre. 1980 and amounted to $3,552.98. The notice wes served on i:r. Giacchi ct his shep in tne Contre at about noon on Saturday, Tl April 1931, On the afternoon, evening and nignat of Saturdecy, 13 April througn te tne wornirg of Sura-y, 12 April persons acting ect the direction of tae risroantents locked thea cntrenccs to theo Centre enc ereecreauc? co break into ina D remove the contents of tne snceps occunies by tne applicants. The sheps were emoticd out. Fittings and stock in trade were rcmoved and pleced in storage. Walls ef thz snons were removed and the shops were rendered unusable For tne businesses therctofore cerried on. Araed security gu'rat accompanied by large dogs patrolled the Centre prevensing unauthorized persons, including some of the 12s ny re) we applicants, from entering tne Centre or their shops. Ther tw waS a serlous tnreat that the actions taken on behalf cf t! % respondents would lead to physical clacshcs ond possible violence and were likely to cause a breech of th2 prec. iv) During the course of the night end early morning scone of the lessee applicants came to the Centre accompenied by police officers, but the latter claimed that since the tatter was > civil one they could do nothing. Reference should be meade te s.207(1) and (3) of the Crimes Act 1958 (Vic.): "207.(1) No person except where entry Le given by the law shall make an entry vpon lsd in a menncr likely Lo couse 2 brooch ci tae peece or reasonable epnorch s ensicn of breeen of the peace. Except as aforcsald it 15 immaterial whether he 1s entitled tc onter upon the land or not. (3) Every persen wno is guilty of a contravention of tlic seecion shrll be gvilty of a masidemecanour era Llirckle to impricontent for a torm of not nore than ence yoor or to 2 fine of net mor2 tuan $1,300 or to both such fine and imprisonaent." This section mod been referred to in the joint edvice givon to the Lossor. On Sunday, 12 April 1981 on the ex parte application of the applicants the court granted ainterin injunctions to operate until 4.15 p.m. on edness April, in substance restr2>ining the respondents from takirg further steps to recover possession of the shoos. On Monday, 13 April 1981 the Lesser forwarded a letter to eacn of the lessee epplicants which, witn necessary varistions, was in the following terms: "Up until 11 April 1931 ycu were a tenant of the abovementioned prenises pursuant to th- terms of 2 Deed of Lease Jated the Sth day of November 1979 granted by this Conprny. Cn that date a Notice was served upon you wiereby you were informed tnet the Company hed elect to treat your repudiation of basic tenrrt's obligations 2s deternining the Leese. £ th Suosequent to the service upon you L Loo} Notice, tne Company entered udon on posscesion of the premises as owner. ie) ie) a an Rll = opreperty which was in 2nd upon tho premises when tae Company took pnessessicn of the seme his been remove? therefron. Such property is oveileble For collection by yeu; or by pny other person who 1s ertitled to it. If you contect vir fill Burke, he will direct you to the arse where the property is stored and you can collect the somo or make wiotover errengements are anpropricte fer its reneval. You may contact ir Turke by telephoring kin on 62 4721 during ordinary office nours. kK Tne Conpany maxes no cloim whatsoever to the prorerty. It «as necotcsery te rerove tne property from tre premises to ensura the - safety thereof. You wtlL resrll that offers sore rede to you an rclation to, inter elar, ronk reduccion en? - 27 - re-lecation within the Cecrtre in ai Lotter dated 31st Octokcr 198, 2 copy 15 7ttrches hereto. A major tcnant h2s now bean oblsaincd. The Company 1s still prepared to rake eveilubl< to you premises within the Certre upon substanticlly the s7mo terts as were contained in the original offer. The vers "substanticlly' is used prcouse in the events which hove 'Anpoened, certain terms of te Originol offer arc no lonarr relevent. If yeu are interested, w2 vouli ce pleceod to Ciscuss the same with you or your solicitors." On Wednesday, 15 April the court cemmenced to . te oer seven motions. In each of application No's. 42, 44 and 46 of 1981 the applicants moved the court for orders that the respondents to those applicitions were guilty of contempt of court in that by fercibly cntering the shop prerises refirred to in the various statements of claim, taking possession thereof and of the property 2rd contents contained therein, and by damaging the some, were in contempt of court. In econ of the four applications the apnlicents meved the court for interlocutory injunctions sinilar to the then existing interim injunctions and also for mwendatory injuncticns requiring the resrondents forthwith at their cost and exnense to reinstste the four shops respectively to the condition they were in at the close of businets on 11 4pril 1991 end raturn ell the property, including uny sums of money, geots, stock, fixtures, fittings cn] cavipnert of the epplicants to the four snops respectively and install the scene therein. The veering of the mroatiere vontinuc? on 22 *oril, 23 April, 24 April end 27 Aeril when tna court resrrved 1s decision. On 15 *pril tho court mede certain interlocurcry injunctions designed to msiintain the then existing position until the hearing and determination of the four meticne for injunctions. On 24 Avcril the respondents geve notices of motion which, in the form as amended by leave of tne court, sought interlocutory injunctions restraining the applicants from entering upon or ainterfering with the respordonts. occupation and possession of the respondents! four shops, the subject of the applications. Despite objections by ccunscl for the applicants, the court determined that that aotion ke considered concurrently with tne other seven motions. The parties relied upon affidavits sworn by 2 l-rage number of persone and tne nunerous exhibits to those affidavits. Two dcronents only were cross-exarined on thrtir affidavits, namely George Herscu and Anthony Carnevale. the court does not find it necessary to express any opinion affecting the credibility of either of those witnesses, nor for that matter affecting any of the other deponents. The court -considers first the three notions for conterpt. They do not involve intcrlocutory mattorse. Tae applicants are secking penalti*®s to be imposed on the cr os respondents and 2 appropricte orus of proof is tnet applicakle to critinel proceedings. The relevenc frets cre not in Jisput>. ahe subctonen cf tne clei. mad2 by th io) iP) -~ 29 - applicants ccn be stated. Thera are procesJings curr—enkly before the Federal] Court. Tne relief sought in tneso proceedings includes orders that the terms of tne lorses be varied. In order to give 2ffect to any erders so madc, tue subject matters must remain in existence and the prenmiscts demised to the applicants must remain in their possessicn. The respondents, with full knovledags of the procezduings in the Federal Court, Jeliberately and in defisnee of those proccedings, entered upon tne demised premises, tcok possessicn of the shops and thereby deprived the applicancs of their lawful possession. For the purposes of Jeciding this matter, 1t if nev necessary to determine whether the applicants area likely to succeed in the claims made in thoir applications. Ucr .5 it necessary to determine whether the re-entry by tho Lessor wrs lawful or not. George Herscu, is the nanaging director of the Devcloper and the Lessor, knew of tne legel procttdings in the Federal Court but was d@etormined on tne course cf self-help to secure the area necessary to attract 2 Major tenant to the Centre. Tne issue for seterminetion 1¢ whother that corduct constitutes contemrt of court. Section 31 Feder>l Court of *ustroli: Sct confors an express power upon the Feagerzl Court te punisn ccntcrpts of its power and authority. Tae motions for contompt orc brovght vricr thet sectior on? ©,40 4.5 of ter Telos of 42 ID> Federal Court. The contention mad2 or behalf of thr -prlicents hrs a Simple attrectiveness. It woe submittr*d thet the conlJuct constituted a crininel contempt in that 1t consisicd of acts done outside the court which were intented or likely to interfere with or obstruct the fair adtinistration of justice, see Halsbury's L=.s of Englaré, 4 Ed. para. 7, b.7. Reference w2s made to Jrmes v. Pobinson (1932) 109 C.L.P. §9 ta) a at p.602 where a distinction 18 drawn between contenpts in which tne interference 15 with the administration of justice generelly and contemrts in which the interference hoc enly > tendency to interfere with tne fair trial of a particulir case proceeding in the court. Different consivterations zrply with respect to the two clegses. The present mcetione arr with respect to the second class, and it 1s for thet rcator that there 1S no motion in ifatter No. 70 of 19€1 since thes- preceecdinjs had not keen commenced at tne time of the forcible entry. Forcible entry of itself, ened in the absence of proceedings in a court affecting the land the subject of tho entry, Coes not constitute a contemst even though it may constitute 3 criminel offonce. It 1s a course cE conducr wnich is not to b2 encoursced. Ye sugaestion thet suct ecenduct ceuld constitute a contsnpt was ma*e in 2 powerfrl end wilderrenging judgment oxerise 7 by Ler? Penning ti.h. an tiePrail Ve Personc, Nance Unrrown [1°73] Ch.447 Pt pp.456-460. In Brambles Boltinat Ltd. Vv. Traive Proctictss a a ae oe ee ee Commissior (1920) 32 A.L.P. 32 Fronki J. hed to consiacr to whether the Commission, by giving = notice urder s.155 Tr-1 m Practices Act in relation to vretterse the subject o th proccedings in the Federal Court, had committed a cortemnt cf court. His Hlonour aeld that the notice was served for tne purpose of obtaining infornation fron the epplicant in tuacse procecdings which information could not be obtaincd by tiny proccss in the court because discovery an3 interregatorics i) were in law denicd to the Commission. At pp.332-9 nis Honcer said: "The function of the court is to determine lgsues accor*ing te law and the evidence presented to it and not to proceed in an Inguisitorial manner to endeavour itsclf to ascertain the trutn. It is clear, tnorefore, thet the giving cf tne notice, which referred to tne penalty provided by s.155(5), was an attempt to achieve by threats aon edventoje in proceedings olready before the court which could not otnerwlse have been obteined and thereforc, in my opinion, wes a Clear interference with the court." yy a n th 9] t His Uenour then referred to a numer of authorities, "In my cpirion the issuc of the netice in this Cole wet os clear irterforenc? wirtn the Oriimory ceursc yucticoa, Tt woe +» cleor ch : - 22 - attempt to procure an acveantzge by throsatening Q party with criminal precezdings if it Jia not do something whicn the lew dic not recuire 1t to do," The essence of that case was thet the Commiscion was attempting to obtain matcrial waicn 1t could use in the proccedings befor: the court by a metnod which was lawful under s.155 of the 'Act, dut wnich could not be corpellcal to be given by generel law under the procedures of the court. To that extcnt tne conduct was directed to the seeking of an order of the court in current procecdings by doing semething whereby the court could be influenced in making its order by the respondents adopting methods anid threats outside the powers of the court. This clearly was intended or was lixcly to interfere with the fair administration of justice snd th o power and authority cf the court. A similar result was reached by the Court of Appezl of the Suprone Court of New Soutn ijales in Registrer of t a3 Supreme Court v. McPherson [1930] 1 N.€.W.L.h. 682. In that case potential witnesscs in proceedings befor (e) the uprene ip Court destroyed documents rolevant to issues arising in those proceedings at a time before subpoenas had been served on tnem. For present purposes it is sufficient to refer te tna i] following wiorts of tie heednote ty that cose: U "Hold: (Py soffit P wnd Bope J+) (1) (a) * court con porform utc uty, to make a decision in @ case in the exercise of ats Jurisdiction, only if 12t has access to relevant cvidenes end relevent documents. (b) In aid of doing so, it has tho power to compel cvigance to be given, or decurents to be preduced to the court, so that they can be appropriately aursrected to ceternine whether trey sheuld be cvailable for use ar tne proceedings. (c) By the subpeone, 25 with compcllin of witnesses to answer vastions, rights o privacy are invaded; but, without thes compulsive powcrs, the fro a could not cperate. rH cesses of the 1 ") vd (d) To amnterfere with the exercise of these powers is to anterfere with the administration of justice. {e) In these circumstences, 1t 15 not to the point that the reason, or e reoson, for preventing decunents from being preduced is to preserve tnelr confidentiality. (f) It aus for the court, not t document holder, to 'ecide what use sha be made of the document. (2) (a) I£ 2 person who nas beon servad with a subpeera to preduce @gocurncnts cbyects to production, ard there 2s not a cufficicnt connection wlth the proceedings in relation to which tne suspoene is issued, the court should decline to pernit inspection. Waind v. dill end National Erployers! Mutual Generrl Associati bY (1°97?) 1 USiLa 372, at p 362 ct seg, £ °° IO mis a cu (b) A party who is permitted to inspect a document i8 not entitls? to meoKna use of knowlecge so acculred for purposes other ticrn in connection with the vroctodings. The court has power to naka approprirte orJors, or 9 exect undertaxings, cr to lirit iunseszcticen, eg, te tre legrl ropreeentativ7c cf 2 nrrty, in order to ensure tnsot 2 Focumert to be inspected 1s not used for purposes ether tnoen in reletion to the precerdaings. QO ts c=_7 Lures r an Nean- =o {cr (1979) 1 WLP 722; {1°79] 3 ll Bn ¢7 and Kimborley tinoral Molsinis Ero (Ir tic) v. ficBwen [192%] L us LR 210, Lollove. (3) (a) In the present crse, the docurcne destroyed hed such cn obvious reloetion to cur proceedings in relation te which f*o subpoen was likely to be issued, thst it was to bo expected that the Ccurt woul? have recuire3, in answer to an appropriate subpoenz, immediate production to, and inspection by, the legal representatives of tne petitioners. It was equally obvicus thet the destruction of the document was intendel to prevent this Crom happening. (b) It should be anferr2a, therefors, that at least the dominent motive of the First defendant in dcstroying the document was to prevent its production to the Court, 2nd its use thereafter in the proceedings initieted by the petitioners. Anted v. *okted and Bliss [192°] P 246, rt pp 262, 263 and Coware v. Stepleton (1953) ot CLR 573, at p 579, 2poplied. Y Attorney-Genoral QB 696, at p 723, refe ve. Rutterworth [1943] 1 rree to. (4) (a) The non-production of the document had an inherent tendancy, as 2» metter of practical reality, to interfere with the administration of justice. (b) In these circumsteonces, (1) the fac that there were other copies of the document extant, and (11) tuc intention or motive of the first Jeferdant, whalover 1t was, were alike irrelevant. Attorncy-Conera] v. Butterworth [1963] 1 QB 6S6, at pp 723, 725, 725, follower. (5) (@) In tho case of interference with witness, or with the evitence to be given b him, there 15 ne limitation, 285 2 atter policy or in principle, which reauiree that before conl.1art can b- founds, the witness nus @lresdy heve been supposnecd to giv evidence. Wts (b) reucliv, if tar receuserts knovlovase art orurros: air Aoine to relevert act cxict, there 1¢€ no rceson why the Gestructior cf - document to prevent its protuction in senting proceedings sno rot be found tO. 'o¢ j contempt, Simply E.couc> no subrecra be pean issued prior to the destruction." The present moticns involve a very Jifforent tyne of case. The essence of the submission made is thot the comaencenent of proceedings in the Federo-l Covrt cper-tes ag an order thet the respondents must not do anything wiica would affect adversely the subject metter of tnos2 proccedings. Tne submission involves a proposition that cne issuc of the proceedings operetes S en order for tne a) preservation cf property under ©.25 r.2 of the Rules of Court or aS a de facto injunction. This cannnot be so, since the whole of the powers of the court to grant interim or interlocutory injunctions, elther under ¢.80 of the Act or under s.23 Federal Court of Australia Act or under 0.25 r.l of the Rules of Court or 2 preservation order under 6.25 £.5 woulda be unnecessary. Generally, sce Austnman v. Bjarneson {1932] 2 W.W.R. 20 (Sasketchewen Court of Appeal) anil by analogy Thomson v. Times Newsoapors Ltd. [1969] 1 V.L.R. 1236 per Salmon LJ. at 1240: "I cannot, fer mysclf, think wny tne fect that he has issued a writ for libs 1 should rrecluse this newspaper, OL apy ctner, Fron mMénura cny further comment ebout Pin shich they may think they are justificd in mening or whicn perhaps they mey tniny Lt 1s Lacir duty to mone. rt 1s a widely neld f2all-cy that tac issue o writ auteonsticrily stifles furthor comment. Turco LS no rcherverery ture TT knoyv of eupport epe vier tnek ferteer coenmment voulA amount tc contempt of court. Once a neiseaptr has justifiee, and tuere is sone mrime fFacic support for tne justification, the ploinciff cannot obtcin an interlocutory injunction te restrain the defendants fron repostinz th matters ccmplained of. In tho circumstanccs it 1S obvioucly wrong to sucpo that they could be committiny a contempt b doing so. It ecome to me to ba equally obvious that no other newspaper thot reocets the same sort of criticisn 15 commicting a contempt of court. They ney be eublishing - libel, rnd if they de so, and they heve no defence to it, they will have to pry whatever may be tne apprepricte Gaomages. Put tre writ does not, in my vict, creclude the subliceaticn of any furtner criticis7: it aerely mute tie person wno takes tne further criticign on risk of being sues fer libel; and he takes tho same risk whether or not there has been any previous publicaticn." See also Gabriel v. Lobban [1976] V.R. 689. In my opinion the conduct of the respondents sas not intended, nor was it likely, to unterferc with or obstruct the fair administretion of justice. The responlonts have taken risks. They had been warned of the risks involv23 in exercising a forcible entry. They may have comaittes a criminal offence, If tho leases had not been valitly termineted, in all probability they would be lieble to pry exemplary or punitive damegos to the applicants. Tn addition, the applicents mey ootain wrndatory injunctions against the respondents. Those risks remain the e777 irrespective of the existence or otherwise of Ilesel proceedings effecting the land st tne time of the forciblc entry. The gowere and autroritice of the -curt i-w2 ret bio affected by the conduct of the respondents. During his submitsions, counsel for the apelicints referred to a large number of fectors which he contendsd wire relevant to whether the cenduct ccnstituted contempt. T have considered all those matters whicn, in essence, go ta tne extent and nature of the contetrt if the conduct constityted contempt, end for that reason are not referred to in detrils I am not satisfied that the respondents or eny of them have committed a contenpt of court, 7nd eccordingly the orders sougnt by the three motions for contempt are refuse?. ' The court considers next the four motions for interlocutory injunctions. The power to grant injunctions of the typc sought 1s not baset on £.80 Trade Practiczs Acl, cut on s§.23 Federal Court c£ Australir Act. For the reesons expressed in Goorge ilacareqor Auto Service Pty. Lt?. v. Caltex O11 (Australia) Pty. td. (federal Court of "*'ustr-lie v.G. No. 136 of 1986, 20 Novembor 1980, Morthrerp J., unreported), the court has a power to make the orders sovght including the mandatory injunctions. In the ¢2=me case, tne principles to be applied in doternining whether interlocutory injunctions should be grzinted ers discussed ont I atont ana apply the perincsicles therein referred to in considering the present otions. In particulzr, I refer to what wos sai? by Lush J. in Sliter wolsor Ferercrnne aor Sty. Et. ve. Frock Boulder Cold sincs Ltd. [1979] vV.R. 107 ot 9.119 an? Pporevcd cS by the Full Court of the Suprone Court of Victorinr in t > ze] P2ec n cr Cr: c ind has "> a . = i) Q o] i) ie rr u (eo) he uo Magno Alloys crise, now repo Pty. Ltd. v. Coffey [19381] V.P. 23, ot p.22: "The weignt to be given to the verious consideretions shown by the ruthorities to he relovant will vary fLrov case to ces. 11 the authoritics say in one vay or cnothe2r that the plaintiff must show thet he hos a cnance of . success before he will be grrnte? on interlocutory injunction. Tne eutnorities refer to tne use of the injunction for the purpose of maintaining tee status guo, cr eStablishing or maintaining i stato of fffeire wnich iS on the balance of ccnvenience eppropricte to be maintained until the trial. Tney refer to avoiding irrepcrable harm te the plaintiff. There will be situptions in «hich ' the plaintiff cannot expect to be grornted an Injunction unless pre can snow that he con prove pesitively the cxistence of his rigqnts and the infringement of them. There will ve other situations in which, though the Plaintiff's proof of his rights or tho iunfringenent of them is not strong, cn injunction may be granted becausc2 to withnele 1t would do the pleintiff irreperabJe aura, while to grant 1t would not greatly injur- tho defendant. The possible variety of situations 1s unlimited." In the present cases there 18 evidence and matericl contained in the affidavits file? on behalf of the applicecnts wnich, 1f£ accepted at the trical of the proccedings woul2z estoblish s contravention by the respondent conpanies of s.5? ana s.53A of the Trodjic Practicocs %ct and cenduct by Cler re) c Herscu on aicing, ebetting, councellirg or procuring tnas in) companies in tnat contrevention, see s.f0 of the Act. Th is) re iw) le avidence slso thet the arplicants eve suffered loss or - 39 - Gamage by that concuct end could thereby recover tne av-oune of the loss and danage under ¢.82 of the act. Likewise, tac lessee applicants could obtain orders varying the tore of the lcases under s.97 of the Act. The evidence end matcrial containcd in tne affidavits filed on behalf of the respondents deny the conduct alleged to be in breach of s.5? and s.53% of tac Act. It is not necessary Lor the court to determine on the hearing of these motions where the truts a lies. It 18 sufficient to say that for prosont nurpos there exists the factual basis on which the claim isc made ard the gu fons of law arise. for presont purposes I find that the lessee applicants owed to the Lessor the monies relerred to in the various notices of acceptance of repudiation of leases. Likewise, in my opinion, the fect thet the notices referred to other greunds which were not expressly established for the purpose of the hearing of thesa rotions docs not affect tne validity of those notices if otherwise they are valid and effective, sec by way of analogy Grir v. Smith [1964] vV.R. &14. Counsel for the applicants contende? that under 0.25 r.2 of the Pules of Court, tae court shovl* m-ke a prescrvation order preserving the proyarty, being the shore, on the basis thet they constituted property under thot rutc. It wes contended further that in censicvering wactnaer to Prks a such or crzer the court 71° not mee? to be sttisfie? thit tt -~ 40 - applicants nad mode out ao prita fecete cose in the sens. necessary for obtaining an interlocutory injunction, ner niod the court consider the belsnce of conventence in Secl7ing whether an order should ba made or net, Jobneen v. Tohrece Leaf tlarketing Poerd [1967] V.R. 427. In my opinion, that rule and those principles heve no applicetion to the facts found fer the rurposes of t2s¢e four motions. The power oxercised by courts of equity to Make preservation orders existed long before the Judicature Acts and the Rules of Court corresponding to 0.25 1.2, yrt very few authorities were cited where thet power was @ y T rt Q be n oO qd. Reference was made to cases sucn as Danie] v. Ferguson [1597] 2 Ch. 27, Von Joel v. Tornsey [1895] 2 Ca. 774, Strclley v. Pearson (1880) 15 Ch.b. 113 and Steamship New Orlzens Co. v. London Provinciel "crine ona Gen2ral Insurance Co. [1909] 1 K.B. 942 where mandatery erdere of varlous kirds were made. Io am not persuaéed that 0.25 r.Z can be used to support the applicant's clain. Tf that rule applied, tost cases where an applicant seught an interlocutory injunctior would be based upon thet rule and not on s.°9 Tre@e Proctices Act or §.23 Fedadoral Court of Xvstralic *%ot Of equivejce powers in the Stete Supreme Courts. Thais 1S mot the crse. Novelty of an argument does not rean that it is necesserily wrong, bee grert caution should v2 eazreiso1 befor: ° . -'l- frov a loncj-establisnod perectice. In the present cas- i: epplicants ere seeking ronedies conferred by the Tr 42 Practices %ct. The relevant remody relates to the variztien of the lcases. The subject wattcr of the proceedings is tne conduct of the respondents ard the romedies flew from thet conduct. In my opinion, the doniscd premises, or rataer tne lessee applicants' rignts of property in the dearit su premises, are not to bce conslicrad property for the purposcs of 0.25 £.2(1). The proceefings do not conc2rn that promcrty within the meaning of the rulc. The court does not zccept the submission and refuses to make an order under 0.25 r.2. As a first step the applicants must establish 2 prima fcocie case in the reauisite sense. To do tnis tney must establish that the forcible entry by the responderts constituted = breecn of the terms of the leeses. This is not a case wrere the Lessor relies upon e fellure to comply with a notice of default under the leese. Tt is a cass where che respondents claim that by their actions the lessee oppliccnts have repudiited their obligations under the leeses, thet rie Lessor has ecceptec their repudiation anéd has exercised its proprietary right to taxe possession of the shops. The applicants, in their affitavits, have dcnied c they are in breech of their cbligations to pay rent, outgoings ond contributions. 3s justificcrion of that 4cnial they Neve cleared thet bhey aov2 2 claim for J-miqes agqrinct the respondents which exceods the anount of prync res otherwise payable under the leases and that in any cvent tnev ere entitled to a variation of the terms of the leases Lo reduce the amount of rent to an amount detertine] by ture applicants. Only one lessee applicant has tendered sone Payment of that lesser emount; the other lessee cpplicerts have not even tendercd the reduccd emount. Py wey of comment, 1t should be noted that by not paying the amounts of rent, outgoings and contributions provided by the terms cf the leasos the lessee applicents have ergeged in a forn of self-help outside legal proceedings. Such an action cf self-help is not to be encoureged by the court. The self-heJp has extended over a lengthy period from Novenmbcr 1979 to April 1981. The lessee applicants have meée 1t clezr they intend to continue co engege in thet form of sclf-help. They have ignored and are ignoring their obligations wunicr the leascs. Anten1lo Catalfamo nas not complicd with tne Clause 14.01 notice of default. In my opinion, for ttc purposes of these motions, I am satisfied that by treir actions the lessee applicants are in breczch of their obligations undor the leases snd have shown an intention of repudiating those obligations ond an intention to continu- to repudiate tncese obligations. During the course of the hoering of the motions, lengthy end interesting subaissions vere out on the question of woether > elran for unlicuiltated enegec ovcoecdin £22 - ) amount of the defaults under the leases prevented the Lessor i mf from relying upon the lessee appoliccnts' Acfeulk i] constituting r2pudiations. Put ?nothner way, the issue wa whether the possible existence of an ecuiteole set-off covsc be used to counter the inference to be drawn tnat the conduct by the lessce applicants constituced a repudiation of their obligations. Arguments were put to the effect thot Le] set-off, whether at conmon law or statute, or an equitercle set-off, were matters of precedure end arose only against ¢ person who nad brought proceedings in a court. In tne present case the respondents nave not brought legal procecdings and therefore it was submitted that no claim for ' @ set-off was applicable or effective. Special provisicns apply with respect to actions to recover rent by way o£ distress and where a tenont secks relief against forfeiture or where a mortgagce exercises a power of sale against default. In the latter two cases 1f the relief 1s grantee? it 1s granted only if the amount in dispute is paid into court, see Division 5 of Part (V111) Suprete Ccurt 2ct 1958 (Vic.) and Inglis v. Commonwealth Troding Sonk (1972) 126 C.L.R. 161. For the purpeses of these motions I am not satisfiel, 1n the requisite sense, tret the lessee apmlicrcnts are eble to rely upen cay cleirn of set-off whether by wry of their cleim for danages or their claim for variatior of tne terns of the 1: ¢f. Likewis2, for tne rurposes of thesa rotions I cr not satisfied, in the recuizite sense, that the irplicants have establisned @ sufficient case tnet the Lesser coul? net accept the repudiation by tne Ie2ssee applicents, see Diners Likewise, for tho purposes of these motions Tf = not satisfied, in the requisite sensc, thot the appliccrts have established a sufficient cese thet the respondents were and for tort Furposc to remove tne property of the respondents, Hemmira= not entitled to teke possession of tne shon uo v. The Stoke Poges Golf Club Ltd. [1920] 1 K.3. 720. During the nearing of theee votions, @s well cs the motions for contempt, a large number of authorities were cited and relied upon by counsel] fer all parties. Tt is importent that a decision on the interlocutory matters be given as speedily as possible. In the time available I ave been unable to stcte ny reasons as fully as JT woule hove liked, or to support them by express reference to the authorities referred to in the course of ergument. To essret all ainterestcd, I eprpens' to theee r1ersors a list of the autherities cites cor referrer to during the cours2 of tne hearing. It is sufficient Lo ery thot I have conciderer the sub™isasienc opd tat ceivoritice cited ond an not catisfici, in tne recuisite sense, thet the applicants have mato our =: Driann facie case thst the rcspendents took posscesion of tx leases in braach of the tarms of tho leases. Accerdinaly, the orders sought in the motions by the opplicents: for interlocutory relief are refused. In these circumstances 1t 1S not nece fra] sary to consider the question of the balance ef convenierco, tne Magna Alloys czse [19€1] V.P. 25. However, in case the matter goes furtner, I snould Statc that on the balance of convenience I would refuse to grant the interlocutory injunctions scught. These opinions are expressed on the basis that the applicants have made cut a prima facie case, in tno requisita sense. In the exercise of discretion I rely upon the facts that the Ilcstee applicants have not paid their obligations under their lc2ecs for a long period of time nd cre refusing to pay tnoce amounts in the immediate future. Tne applicants delayoe o long tim2 before commencing th2 procecdings in the Federal WwW Court. The applicants have fcw assets and if, subsecuently, they are ordered to pay damages the order ics likely to remain unsatisfied. The businesses of the opplicants havo not been successful finsne1ally. The Cantre has not beon = financial succcss. It 15 not likely thet in the immediate future there will be sny improvement in the commercial activities of rhe a x busancescis cuing conéucted cy tenints at tna Contre ond tho business of the respondents at the Centre unless dJr-stic steps are teken to attract more customers. rie responderts are planning to attract more customers to the Centre by leasing 2 large area to a major tenant. Final ogrcement acts almost been reacned. They ccnnot do this unless they have "3 u possession of the four shops. Otner tonants have agreec to be re-locate?, and on the fects of this case tne interests of all tenants at the Centre ore to be consigered in th exercise of tne discretion. The respondents have tanrn physical possession of the shops, and although 2 party snoulij not gain any bencfit from his unlawful ects, the fact of possession remains. To be effective, any injunctions grented f would need to be mandatory and there 1s no probakility thet orders of that kind would assist the applicants to any re2l extent. Tne grenting of injunctive relief 1s discretionery, and for present purposes I am assuming that the cntry of tho respondents into the shops was unlawful. The injunctive relief sought by tne applicants apparently is sought cn the basis that the terms of the lease be varied by reducing the amount of rent to be paid. Tnat, likewise, 15 a discretionary matter. On the assumption madc that the applicants would be entitled to damages, end probably exemplary damages, I am unable to say thet on the meterial presently before the court thore is a likelihood that the terms of the leases would be vorice2 as sought. Certainly, I eam unable to sey that the court should orant tne interlocutory ianjersclion on the toras tiuct tne epplicants voy -~47 - rental at an amount @ctermircd by then enc being fer less tnan the emeunt specified in the leases. In all the circumstances, at this Stage of the preceedings, tae belance of convenicnce 15 in favour of the respondents. There emains for ccnslidicration the motions for injunctive relief against the appliconts. In an appropricte case the court has the jurisdiction and power to grent such an aunjunction, Firone Pty. Lti. v. Horsfirld Goldings Pty. Ltd. (Federal Court of Australis, Smithers J., 123 Febrvuory 1981, unreported). Cn the mceterial before me, I am not prepared to make the orders sought. The respondents have not yet filed defences in the proceedings. 'o cross-claim has been mede against the applicents. In those circumstancos I am not satisficd that at the present time the court has power to make the orders sought. Further, the orders sought cre not base? on s.20 Trade Practices Act. The respondents so2k guic timct injunctions based upon tnreatened trespass. on io) i) hw the evidence I am not satisfied that there is a re probability of trespass by the applicants, and that this trespass 1S imminent or tnet the applicants will cause subst iv] ti 1 Gamage to the property of tne respondents, Grasse v. Love [1980] V.k. 163. In conclusion, I express appreciation for tne cain, careful and extremely competent submissions aade by counsel LQ wftl wast ca eerlicstcel, lifficult ana volatile sctte is , i] ny fos) I nignly charged witn emotion shich could have cloultea tie rsai ucs for determination and mede the Cettrmination of the cs so mucn more difficult. In the result tne following orders ere Tade: Application ilo. V.S. 42 of 1921: Orders sought in applicant's notion for conteas of court refused witn costs to pe taned. Orders sought in applicant's motion for interlocutory injunctions refused with costs to be taxed. Crders sought in respondent's totion for interlocutory injunctions rcfused with costs to be texed. Application No. V.G. 44 of 1991: Crders sought in applicants' motion for conterct of court refused with costs to be taxed. Orders sought in epplicants' motion for ainterlocutcry injunctions refused with costs to be taxed. ~ 49 - 3. Orders sought in respondonts' motion for interlocutery injunctions refuscd with costs. Application No. V.G. 45 of 19°1: 1. Orders sought in applicent's motion for contompt of court refused witn cests to be taxed. 2. Orders sought in applicant's motion for interlocutory fer injunctions refusec with costs to be taxe 3. Orders sought in respondents' motion for interlocutory injunctions refused with costs to be taxed. Application No. V.G. 79 of 19381: 1. Orders sought in applicant's motion for interlocutory injunctions refused with costs to be taxed. 2. Orders sougnt in respondcnts' motion for interlocutory injunctions refused with costs to be taxed. LIST OF AUTHORITIES CITED OP REFEPRED TO MORTYC UL TC Absclom v. knight (1743) I-rnes 450; 94 Andrew v. Fancock (1219) 1] Troi. & Ansett Trensport In¢ustrics (Cp (1979) 25 V\.L.N. 639 Air Expross Ltd. v. Ansett Trensport Industries (Cperaticns) Pty. Ltd. (1931) 55 ALL.J.R. 107 AssocLated tiewspapers Lee. v. Bancks (1951) 3° C.L.R. 322 Attorney-General v. Puttersorth [1963] 1 C.?. £96 Attorney-General (N.5.i3.) v. John Fairfcex & Sons Ltd. [19°] 1 U.S..L.R. 362 Attorney-General (N.8.7.) ve v Austman & Cé@dson v. Thorn (SesKkatcnewan Court of & Bayview Cuarries Pty. Lt (1963] v.n. 445 Brambles Holdinas Ltd. v. T.P.C. (1999) 32 A.L.P. 3228 British Anzani v. International Marine ianegercnt [1979] 3 .L.F. 451 Brown and Benbow v. Jam Fectory Pty. Lt¢. and L. J. Hooker (Vic.) Ltd. (Unreported: VG No. 16 of 1920, Fox J. 26 tiarch 1981, .ielbourne) Burgow v. Hornsey [1895] 2 Ch. Butcner v. Poole Corporation [1942] 2 All E.R. 572 Campbell v. Peyne (1953) 57 S.R. (N.5.0.) 537 Cannon v. 1000 (13837) 2 1.8 w. 500; 150 E.R. 1243 Chapnan v. Honig [1963] 2 2.2. 502 Daniel v. Ferguson [1891] 2 Ch. 27 Decro-wall Internationel S.A. v. Practitioners in riarketing Ltd. [1971] 1 J§.L.R. 261 Dimond v. .foore (1931) 45 C.L.R. 159 Edward Ward & Co. v. ieDougall [1972] V.P. 433 Federal Contmerce & Navigation Co. Ltd. v. Nelena Alpha Inc. [1979] A.c. 197 Firona Pty. Ltd. v. Horsfield@ Holdings Pty. Ltd. (Smithers J., unreported, 13 February 1931) Fong v. Cilla (1968) 11 F.L.R. 495 Fortuna Holdings Pty. Ltd. v. D.F.C. of T. [1973] V.R. 82 Fryer v. Plucis [1967] (.4.F. 151 Gabriel v. Lobban [1976] V.P. 629 GalamLos & Lon Pty. Ltd. v. JcIntyre (1974) 5 A.L.C.n. 10 Galr v. Smitn [1964] v.r. 814 George iiacgrogor 7uto foarvice Pty. Ltd. ve. Caltex Cil (Australia) Pty. Lt?. (v7orthroc J., unreported, 20 Koveracr 1930) Gouriet v. Union of Post Office Workers [1978] A.C. 435 Grasso v. Love [1980] V.R. 163 E.R. 637: ' Felton Pe) Lal to cr be 3°Ls) iz) fag he . a ct a < N.S.7.L.R. 143 11 BY ne 2 wads. 20 [193 a] [1932] os so #p d exe . v. Castley Develormnent Pty. Ltd. He m7ings v. Thc Stoke Poges Goll _Club Lei. [3920] 1 K.8. 729 Henrin.sons keceri. */5 y. TOH.%2. Folimpeyr [1974] 1 2.5. 72? Bighwcy Prossrties Le. ve viliy Lauy tas & Co. Lei. (1°71) 17 D.L.P. (3d) 710 Inglis v. Conmonwaalth Troding Bank (1972) 126 C.L.R. 161 In re Hiram daxim Larp Conpony [1°92] 1 Cn. 70 In re &.L. Tractors Ltd. [1954] V.L.n. 595 Jemes v. Robinson (19635) 109 C.L.r. 593 Johneon v. Yobsccco Leaf nrketing To2ard [1957] V.P. 427 Knockholt Pty. Ltd. v. Graff [1975] ¢3.R. 98 Laycock v. Tufnell (1737) 2 Chit. 531 Leney & sons Ltd. v. Callingher and Thonyson [1998] 1 K.B. 79 tlagne Alloys & Pescarch Pty. Lt2. v. Coff-y [1981] V.R. 23 "icPhell v. Persons, Nenes Unknown [1973] Ch. 447 Nova (Jersey) Knits Ltd. v. Kenngarn §Epinnerei G.w.e.n. {1977} 1 4.L.R. 712 Perrey v. lordizsel Co. Pty. Lti. [1976] Vv... 569 Pizzoy Properties Pty. Ltd. v. Edelstein [1977] v.r. 161 Poort v. evelopment Underwriting (Victoria) Pty. Ltd. (Mo. 2) [1977] V.F. 454 Praznoveky v. Sr 7blyack [1977] v.r. 114 Re Boswell [1906] 2 Ch. 259 Registrar of the Supreme Court, EBeurty Division v. ticPrerson & Ors. [1980] 1 N.S.0.L.R. 388 Rutile .:aning Cevelorments Pty. Ltd. v. Australian O11 Exploration Ltd. [1950] Od.7r. 439 Samuel Keller (Holdings) Ltd. v. Martins Tonk Ltd. [1971]1' 1 W.L.R. 43 Sheponerld v. Felt & Textiles of Aust. Ltd. (1931) 45 C.L.R. Slater Welker Superannuation Pty. Ltd. v. Great Boulder Cold fines Ltd. [1979] V.P. 107 Sovereign Life Assuranc? Co. v. Codd [1892] 2 9.7. £73 Steamshir New Crleans Co. v. Lenden and Provinciel iirrine and Genoral Insurance Co. [1999] 1 H.3. 942 Stehar Knitting ills Pty. Ltd.v. Southorn Textile Convertors Pty. Lee. [1930] 2 N.G.4.L.E. 514 Strellcy v. Pearson (1°8C) 15 Cn.c. 113 Stewart v. Lotce Investments [196%] 1] N.S.a.R. 432 Stockbridge v. Sussumse (1942) 22 9.3. 239, 114 E.P, 499 StooKxe v. Taylor (1530) 5 9.5.0. 569 Thomes v. Cross (185?) 7 Ex. 728; 155 E.R. 1142 Thomson 7. Tites Nowsnpopers Ltd. [1969] 1 'I.L.P. 12236 Totol O11 v. Thomnoson Geregces [1972] 1 C.£. 31% United Doainiens Corporation Ltd. v. Jaybe Homes Pty. Lt. (1979] 21.R. 111 Von Joel v. Hornsey [1°°5] 2 Ch. 774 Vowell v. Wostirgs fZhire [1972] V.F. 764 wolters v. Cooser [1957] V.Fr. 582 Webster v. Pekowoll P.O.C. [1915] 1 Ch. 5 wilson v. Devenzort (1833) 5 C.&sP. 5 ? cana, that tus and the FIFTY (so) tierce) pegs. are a true copy of the ; "li fe. Tudgment herein of the Lionourable Mr. Justice NORTHROP Ybrb Vteens Associate | Dated: (| May 198I prea eons a