T NEA CENERAL AUSTRALIA ) ) PEGISTRY ) No. G.108 er 19954 )EPRENOEN BEFNAPD NG & ANDR. Ne om =} "Y i= 11] Pel a = o uw HW ni rl tel is &4 co Resvondent MINUTES OF DOT [53] fel Lae! i D> 3B en ct a The Appiican ana any Detence 1394, Ali earcies co Documents on or serve its Dertence a a fe) aen) or D rh a ry ip par Lai anc any Cceoss-Claim on os file tied List a re) ry ad serve ver cp | ol tS before 6 Auqust, 1994. + an All parties to sdminister any interrogatories on or nefore 27 August. 13984. Stand over for further mention cto 14 Seorember, ira) feu) ku .20 am. ad WEEN + PERNASO M2 S Accolicantes ANE: PIER ONE PTY. EEMTTED Rescondenr On 2 Aprii., i984, the applicants ccommencea proceeaings in this Court claiming an oraer -racving a Deed arolaztants to lease shop sramises from che dererndant, an credes Tor tne YSenAayMant or certain mnonevs allscediy paid sy tne BRppLlicants to the reésovoncent in connection 71th the erocosed alleges b hes or ss. 92, 53, S3A ana £3 of the Trace Fractices Act, i974 and common law negligence. No Derence 79 tne application has ver neen filed but I have been informed from the Bar table that. 1f the matter oroceeds in this Court, = The yvespoective eclicitors for the vacr1ies indicates that beth pacties were in breach of directions given bv ths Reaistrac in 1th the result that cr EH Eauity as to the riling or arfidaavits;: 29 Ruqust, 1982, the Registrar stoad ths atter ovec generally with Leave to e1ther oarty to cestore che mattec ro che list on seven (7) days notice. Nothine further na yy roa iT bma ) oO y te poi solicitors aegaling with the fururs course of, and costs vaised in the Supreme Court [a] Ley oO ip) ip 3p re] a= in Hl x ib a o pom r wr i cr oO TSiI. J Goldbeca, also indicared costs in the Supreme Coucr. As made ALS onm estimate of sarty and Darty 29803 which the cesveonaent would oe erncitlea to cscover in the Supreme Court oroceedings if the vroceedindgs were Giscontinued at this staqde as being apour $1,200.09. The oerfer ¢ e@ sect a Te}fa) < BE Fert F rity in this amount was apparently conveyed to the solicitor for the respondent on 17 Mav, iged, an arfidayic dated 1 dune, 1984 in which he estimated the tl ie] w tyur re) a xca 7) f=" ri o ry ct = a A t 'G 'S - pP oO fy a a the o ry ty w ry ib pu w He) c =] fer 1D ny el fu ay } dD q 5) re a b>! at they would provide a sum oF monev, tne ameunt to be determined by the Court, as security for the 5 cost ty 1D ao 't fe) bs] Q Dec ro} un the Supreme Court. an Mr & D Seriszer, counsel for tne rcespcncent, arquea that 1t was untair and unjust that his client shouid be placec pcosecute those yroceedings sending tne aetermination or the ar 'O o Oa H rh bP a 6] a rs Fh ie) you +3 Qa 'D So o fal wtt rs ia c o a a v Qty w h et Ny ty rm# t3a) B far) a {= my i a ct Court they sougnt damages. He stacted. From the Sar table. nis client would be orepared to undertake tnat 10 would not, even in the Surreme Court proceedinas, oersist with a ciaim for specific serformance oc injunctive relier. Fe saia that stay of oroceeaings. However, he went on t2 a tay than the Court shouid strive against vecmitting In both Tr Company a stay of oroceeaings ias refusea. In neither or those case onto vs) a aa il) ee uv w ry Pd ro] Q my pa] ct fi) uw Cc 'S be MmD q ie} Cc S aa Pp. o ny)a Fe ms) nv] ch case a ne apolicant in tals vourr desires OF action under che Trade Practices Act which would not have been avaliabie in the Supreme Court proceedings. ft) fe) fo s w 'D un oO rt fy co] ow th re} bo] Fs oy a a Loe a py a 'S) un rya fy 'S 'S I= rt fe) m ei a a Pourt 1s imminent. Incerlocutory oroceduces in that court have not been compiated ana no nearing date nas been fined. . c2 can p2® a hearing on the merits in this Tourt az least as ta o oD nas in the <Sueseme Court. Specilzic matters have oean urcdea upon me by cae claim an ornss For specific perrarmance ard sorcecs by way a Oo by zniuncrions whilst they litigate a claim merely fIcr damages there night well be difficulties in the assessment of damaces, ct : tet fa area with tnat submission and I aad thar entitied to succeed, in the nective relief will be made in hese difficuities nave besn ec Eo apandon,. in the Supreme OT2 that a similar arcument was .ut to Toohey J in che mattecs, interviewed that the solicitcr foc the respondent had potential witnesses in reaqard to the alleqations made by th apolicancs in the Suoreme Couct eroaceeaings and wD that counsel had conterrea with some of tncse wienesses. Ft appears From the Sratemenc of Claim in this Court thac the allegations upon which the applicancs will rely will overlas, ac igasc to a considerabis extent. the matters devnosed ta in Ioaave reached the ccnclusion in these circumstances, The question remains as to che arpropr1ate amounr of securitv for costs. TI have estimates from the respective edlicitors. each of whom has ion The 2stimates vary consideraoly and = have no eact1 <9 the calculation of either fidqurs. ile Goldbera's no wi estimate surrers from the dirficulty that ne can only speculate ct bm om aOoow &, He is)H ct uo cc) 1G) fa) I B a jr ct o ry rh ie) By el pb o Ley 1) a 'D I do net think that 10 13 asyracr1are f attempt te caiculate thac the trcper aporoach 1s for me to syecify a : ble. 2 sacretfied, upon such evidence as is availa ua Although I ao not have any svidence as wsark done on nehalf of the resnondent in prevara defence of the Supreme Court proceedings. I hav a ims fa) fp ty a 1) o Ve] cl ¥ w ty ty, oO rs ct as ie} s oO A ondent michrt have a f ct r a canraseant a Aiagn estimates of cecoverable pArty-xarty costs. fo orovose to adopt that Figure. PH rT) i te Me < o ine q a) p. Hot ts oOfo a ct t Hi would be inclined to agree tnac there should be a costs order in his favour. at least to the point of orderings that costs he anplicants costs in the procesaings. Hcwever, ec tar as aoosars rrom the material before me, 10 Was NOL until during imeression that the detarmination of this matter by che Courcr could have been obviated 1f the vespondent's sciicicors nad c@sponded to Ths Aattampr oy the apvolicants salicitors =o in the vesuit, gacn sacty has had some surzcess and sons farluce. Tach oacty has been pactly cespensibie fer tne acslication haying to be Fouqnt ouc Ioio nor think taat (a) condition procesdings Cours that No. n the the a mea oplicanczs undertake tO the in restrained from leasing, licensing, q@ranting any estate or interest in tne scemises to any person body or corporacion cruner than the apolicanrce or otnerwise dealing with of sermircird They will take no stess in 'S s Car rC ny) Cut1ion cr the said Suoreme Coust orecesdings until: = I iy wup My Q ny cl i) v fy GC re) ron fa io) fu a rl m ct te) n re] qu oO te ey cid) Chis Court has finaliv disposed of the application fh iD Le] iy H 1] vthicheyer first occurs. cesponaent's cozts in the said Supreme Court ct we yw shy Pr ip hg Du tel Ay Mon 1b DM ats Pans rom ' the casts of this anslicaticn che acecedina ct cooy of the Bea sr I joete ee te ieoe easons tor Judcement