CATCHWORDS Trade practices - misleading or deceptive conduct - representation of sponsorship or affiliation in connection with sale of land - applicant s father founder of real estate development business in 1890s - father's firm no longer in existence - father dead for over 309 years - purchase bv respondents in 1984 of shares in companies incorporated by father - reference in advertisement to advertiser as qroup of companies bearing father's name and of having been in business since 1906 - whether false ov misleading - whether representation of sponsorship or affiliation which did not have. Trade Practices Act 1974. ss. 52, 53A WARPEN HALLORAN_ v._ HENRY EF. HALLORAN & CO. PTY LIMITED AND ORS. No. G360 of 1984 Ceram: Sheppard J. 3 December 1984 Svdnev IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G360 of 1984 GENERAL DIVISION wwe ew BETWEEN : WARREN HALLORAN Applicank AND: HENRY F. HALLORAN & CO. PTY LIMITED AND ORS. Respondents ORDER JUDGE MAKING ORDER : Sheppard J. DATE OF ORDER : 3 December 1984 WHERE MADE : Svdnev THE CONRT ORDERS THAT 1. Leave be qiven to the applicant to amend his application by: (a) inserting after the words "Henrv F. Halloran & Co. Group" in para. 4/4) and para. Q9t(e) the words "under either of those names" (b) inserting after the words, "An order that each of." in para. 8 the words "the twentv-first respondent" Orders be made in terms of paras. 1, 2, 4 (as amended), 5. 8 (as amended>. 9 (as amended) and 10 of the application. The respondents pay the applicant's costs of the application. The exhibits other than Exhibit E he returned to the persons from whose custody they were produced on or before 1 February 1985, if in the meantime no appeal has been lodded. Exhibit Eis not to be returned except upon the order of a Judge of this Court. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G360 of 1984 } GENERAL DIVISION ) BETWEEN : WARREN HALLORAN Applicant AND: HENRY F. HALLORAN & CO. PTY LIMITED AND ORS. Respondents CORAM: SHEPPARD J. 3 December 1984 REASONS FOR JUDGMENT This 1s an application for injunctive relief to restrain alleced breaches of ss. 52 and 53A of the Trade Practices Act 1974 «"the Act"). The application was precipitated bv the appearance in two issues of a magazine, "The Good Weekend". a supplement cto the Saturday edition of the Svdney Mornina Herald. of an advertisement for the sale of land on the New South Wales coast. The advertisement appeared on 6 and 20 October 1984. It was spread over two facing pages of the magazine. At the top of each pade was a photoaraph in colour of an area where the advertisers had land for sale. one at Coffs Harbour and the other at Port Stephens. The advertisers were said to be "Henry F. Halloran & Co. 2. Group of Companies". The text of the advertisement beaan with the words: "'Since 1906 our land developments have proven to be outstanding investments'". These words were printed in bold tvpe. To the left of them was an artist's impression of Henry F. Halloran who was said to have Lived between the vears 1869 and 1953. Underneath his portrait was a replica of an old map of subdivision of part of the Sydney suburb of Seaforth. This extended to the bottom of the page. The remainder ot the text of the advertisement was in bold tvpe. although less prominent than that used in the heading. The text in part said: "Our Founder Henrv F. Halloran made this comment in 1920, some 14 vears after one of his first mator land saies ... the Svdnev suburb of Seaforth. Today the Henrv F. Halloran & Co Group continues to uphold its reputation as a leading land development companv,. offerina quality resort and residential land on the North coast of New South Wales at verv attractive prices. THE GREAT AUSTRALIAN DREAM Henry F. Halloran was described as 'possibly the most completely equipped person ever to peactise real estate in this State.' His forsiaght and imagination created the estates of Stanwell Park, Queanbevan. Avoca, Warriewood and Seaforth. Most of these earlv developments are now prime residential land in some of our most scenic resort areas." Under the heading "New Lots Now Available" was advertised land which the advertisers had for sale at Coffs Harbour. Port Stephens and Lake Macquarie. There then followed the words: "For nearlv 100 vears our Estates have proven to be a sound form of investment. Like the purchasers of land at Seaforth in 1906 we are dust as confident of the investment potential of todavs' offering." Ample finance was said to be available. At the end of the advertisement was a counon which readers could send in to obtain further information. It was intended to be addressed by them to Henrv F. Halloran & Co. Group, P.O. Box 42, Edgecliff. 2027. N.S.W. A telephone number was also given. In verv small print towards the end of the advertisement appeared the words: "Marketed exclusivelv by Kim Clarke Marketing Pty Ltd, 1 Taylor St, Darlinghurst. 2010." The words "Henrv F. Halloran & Co." appeared at the bottom of the left hand paqe of the advertisement ina box made to look like an old sign which miaqht have been affixed to a door or entrance to an office. The words were printed un a scroll-like print aiving the impression of a sidqn which 4, had been first printed manv vears ago. Underneath the words "Henrv F. Halloran & Co." in the box were in block type the words "Group of Companies". The applicant is one of the sons of Henrv F. Halloran who lived in Svdnev from 1869 to 1953. Mr. Halloran confirmed that the portrait in the advertisement was a likeness of his father. He said that he was aware that his father qualified as a survevor in 1890 and later became a certified local aqovernment enaineer. He practised as a survevor and as an enqgineer from some time in the 1890s until his death. He became entirled to practise as a convevancer in about 1896 and carried on practice as such continually until] his death. Mr. Halloran said that his father beaan practising as a surveyor under the name Henrv F. Halloran & Co. in about 1894 and his practices as an engineer and a convevancer were carried on under this name. He used the name until his death in 1953. Thereafter Mr. Halloran maintained the reqistration of the name until in the late 1950s he allowed 1t to lapse. Mr. Halloran said that his father had become involved with land development some time 1n the 1890s. He had in his evossession subdivision plans bearing his father's name which dated back to about 1900. By that vear he had extended his business activities to include those of an auctioneer, real estate aqent and valuer. Appended to Mr. Halloran''s affidavit 15s a facsimile of a letterhead apparently used bv his father. It is headed Henrv F. Halloran & Co. The firm 1s described as "Convevancers-at-Law, Chartered Survevors, Land Valuers, Civil & Local Government Enqineers, Land Planners, etc." Mc. Halloran said that his father. both 1n his own name and through a number of companies 'incorporated bv him. came to hold larve areas of land throughout New South Wales, particularly in the Queanbevan. Port Stephens and Shoalhaven areas. He was responsible for opening up manv areas throughout New South Wales and became well-known as a land developer. The first company which he incorporated was Warriewood Ptv Limited which was formed on 16 March 1906. It owned a larqge area of land at Warriewood which it subsequently developed and sold as' residential lots. The next company. Bunaarribee Ptv Limited, was incorporated on 18 April 1906. It is one of the respondents to this application. Mr. Hatloran confirmed that his father was responsible in or about 1906 for the develoment and sale of a larae number of residential lots in the Seaforth area. Between 1907 and 1931. so Mr. Halloran said. his father caused a further 22 companies to be incorporated. particulars 6. of which are qiven in his affidavit. Those companies inciude the respondents. Avoca Ptv Limited, Balaownie Ptv Limited. Canberra Freeholds Ptv Limited, Canberra Suburbs Ptv Limited. Decentralisation Ptv Limited, The Gates of Canberra Ptv Limited. Homeville Heiaghts Estate Pty Limited. Jerrabombera Ptv Limited, Stanwell Ptv Limited. The Stanwell Park Hotel Company Pty Limited, Tanilba Ptv Limited, Tor Ptv Limired, Wandandian Ptv Limited and Wyee Ptv Limited. Broadlv speaking the evidence establishes that each of those companies 15 now owned and controlled bv the last named respondent, Mr. Lvons. or bv persons or other companies associated with him in business. The other respondents are similarly connected with Mr. Lvons. The respondent. Kim Clarke Marketing Ptv Limited, wronalv called Kima Clarke Management Pty Limited in the application. is the companv referred to in small tvpe in the advertisement. Mr. Halloran said that on 5 June 1930 his father caused to be incorporated Realtv Realizations Ptv Limited. There is in evidence a copy of a circular dated 7 July 1930 which was apparentlv circulated to clients of Henrv F. Halloran & Co., whose name the circular bears. The name is part of a stamp in the top left hand corner of the circular which described Henry F. Halloran & Co. as auctioneers, convevancers at law, licenced survevors and sworn valuators. Amonqst other things the circular said: "The Real Estate Agency portion of our business has as from the Ist instant (that 1s 1 July 1930) been transferred to and will in future be conducted by REALTY REALIZATIONS LIMITED, a new Company formed for that purpose. All sales and collections will henceforth be made bv the new Company which will. however, continue to have the benefit of Mr. Henry P. Halloran's assistance and advice. There will be no change in the professional side of the business as Mr. Halloran will continue his professional work as Convevancer-at~Law. Licensed Surveyor. Civil Engineer. Town Planner. Valuator, &c. under the same name of Henry F. Halloran & Co. and will act in those capacities for the new Company. The new Company will occupv the same offices and those members of the Staff who have been carryina on the Real Estate Aqencv business have become the emplovees of the new Company. Thus vou may be sure that the traditions of this well known business will be maintained, together with its reputation for soundness and fair dealing with the public during the past 40 years." The circular was sianed Henrv F. Halloran and Co. Mr. Halloran confirmed that his father was retained by all companies as convevancer. surveyor. enaineer, valuer and town planner. A copv of minutes dated 2 October 1930 of a meetina of directors of one of the companies. Avoca Limited (as it then was), confirms that this was the case. Mr, Halloran said that after 1930 his father continued 8. to carry on his various professions and businesses under the name Henry F. Halloran & Co. He said that 1 was common for him to sav that he was able to provide everv professional service which a land developer required from acaquirina the land, surveying it, developing it, and selling it. Mr. Halloran said that he became involved in his father's business in the earlv 1940s and that after his father died in 1953 he assumed dav to dav control of the companies. There is some disagreement with that statement bv a Mr. Hiscock but I do not think it necessarv to attempt to arrive at anv conclusions about such ditference as there 15 in the evidence of the two witnesses. Mr. Halloran said that by 1982 the onlv persons with a substantial interest in the companies were his two sisters and himself. He said that they owned approximately a oone third interest each. Mr. Hiscock also had a small interest. Mr. Halloran said that approximately two vears ago, that is in 1982. he and his two sisters decided to divide the group so that each would assume control of companies which held land. In this wav what might be described as a partition of the property was achieved. Mr. Halloran himself was interested in taking land in the Shaolhaven area. His sisters took land elsewhere. Each took an approximately equal share. although Mr. Halloran's appears to have been sliaghtlv larger. The transaction involved not only share transfers but the need to move lands from one or other of the companies so that the obiect of Mr. Halloran in havina land in the Shoalhaven area only could be fulfilled. Thus it was that in many cases companies which had held land for vears transferred that land and received in its place other land. On 16 March 1984, the sisters either personally or through a company, which one of them controlled, aadareed to sell to a companv, Idotrack Ptv Limited. their shares for a consideration of $6,045,161 upon terms and conditions set our in an aqreement of chat date. The agreement 18 a complex one and I do not find it necessary to refer to the detail of it. Idotrack Ptv Limited 1s a companv which 1s controlled bv Mr. Lyons or by persons or companies associated with him in business. Mr. Halloran retained control of seven land holding companies and two operating companies, Realty Realisations Ptv Limited, alreadv mentioned. and Loralyn Ptv Limited. which had been incorporated bv Mr. Halloran senior on 17 December 1952. Mr. Halloran said that on 25 Mav 1984, he learnt that a company under the name of the first respondent. Henry F. Halloran and Co. Pty Limited, had been incorporated. On that dav he wrote to Mr. Lyons a letter which was as follows: 10. "It has today come to my attention thata companv styled Henry F. Halloran & Co. Pty. Limited has been reqistered at the Corporate Affairs Commission. Iocan onilv assume that vou are in some wav responsible for this and that you propose to carry on business in some way under that name. I am looking further into the matter and at this stage I want vou to know that I am opposed to any use of the name and I would be verv disappointed in you should vou make use of it." On 29 May 1984, Mr. Lvons wrote to Mr. Halloran. He did so on letterhead which bore the heading. "Lyons Brothers Group of Companies and Affiliates". Underneath that name were the words. "Incorporated in New South Wales". There then followed a number of companies. one being the respondent Lyons Brothers (Australia) Ptv Limited. each of which presumably was incorporated in New South Wales. Jnder a further heading, "Incorporated in Queensland" were siz further companies. At the bottom of the lether were printed the words, "Lyons Brothers (UK) Limited (Established 1929)". The letter said: "We confirm that a company stvled Henrv F. Halloran & Co. Pty Limited has been incorporated and that the nominee Directors and Shareholders in that company have some association with our Group. You will appreciate that we did purchase approximately 2/3 of the land holdings of the Group known as Realtv Realizations Group. We feel a need to have a trading name that identifies with the land holdinas of the Realty Group since both vour late il. father and the Realtv Realizations Group have a long and established track record and contained within our purchase from vour sisters was a certain qoodwill content. Since we are not able to use the Realtv Realizations' name, we made enquiries as to whether Henry F. Halloran & Co. was available. It seems that neither vou nor vour family have preserved such status and accordinaly we felt that we were both leaallvy and morallv able to use the name as a marketing entitv. We would be prepared to relinguish such useage should vou be willing to transfer the riahts to the Realtv Realization Group name to our companies. We certainlv have no desire to offend vou or vour familv and hope vou will understand and aaree with our intentions." Mr. Halloran replied to this letter on 31 Mav 1984. saving that if the name Henrv F. Halloran & Co. were used in the manner pronosed. he thought that on behalf of ail the members of the familv that Mr. Lyons would offend. He added, "Por mvself, that certainlv will be the case." Mr. Halloran said that subsequentiv he came into possession of a letter dated 15 August 1984 written ona letterhead entitled Henrv F. Halloran & Co. Group of Companies. The letter was addressed to the Town Clerk of the Citv of Oueanbevan. Its contents are not relevant. It is the aet-up of the letter to which reference needs to be made. The words Henrv F. Halloran & Co. are in the same sian-like drawing as thev are inthe advertisement: thev are in the same scroll-like print and appear in a box above the words. 12. "Group of Companies," which are in block letters. A number of companies are listed underneath the name. some of which are respondents to this application. Mr. Halloran. however. pointed out that two of the companies - that 1s to sav the eighth and twelfth respondents - were not companies with which his father had anv association. He said that he knew nothing of their origin. At the bottom of the letter were the words, "Developing land for Australians since 1885". Mr. Halloran said that none of the other companies said to form part of the Henrv F. Halloran & Co. Group of companies were developing land for Australians or for any other persons since 1885 nor was his father involved in land development at that time. Mr. Halloran said that he heard nothing further about the use of the name Henrv F. Halloran until he read the advertisement which appeared in the Good Weekend on 6 October 1984. He said that his father had no business or personal connection whatsoever with the persons who had control of the companies said to constitute the Henry F. Halloran & Co. Group of Companies. That completes the account of the evidence led on behalf of the applicants to which I find it necessarv to refer. There was other evidence led on Mr. Halloran's behalf but I do not reaqard it as of direct relevance. I indicate. 13. however, my acceptance of the truth of the evidence which each of the witnesses gave. Apart from Mr. Hiscock, the respondents called two witnesses, Mr. Pudid, their solicitor, and Mr. Davev. Ido not need to refer to Mr. Pudida's evidence. Mr. Davev said that he was the secretarv of all the corporate respondents. The respondent, Mr. Lyons, was said by him to be the chief executive officer of most of the corporate respondents. Mr. Lvons did not aive evidence. At the outset I wish to say that I found Mr. Davey's evidence unsatisfactorv. That was not due. I think. to dishonesty on his part. but to inexperience and lack of real knowledge of many of the things he sought to depose to. Eventuallv I said that I would not accept any part of his evidence unless 1t were aqreed upon or corroborated by other evidence whether documentarv evidence or otherwise. I said this before the evidence concluded in order to qive counsel for the respondents an opportunity to call additional evidence if he thoudht it necessary. No additional evidence was called but some aqreement was reached about some or the matters deposed to in Mr. Davey's evidence. The evidence which I accept shows that the purchaser of the shares under the 16 March aareement, Idotrack Ptv Limited. 15 a company associated with or controlled bv Mr. Lvons. it also shows that the first respondent. Henry F. Halloran & Co. Ptv Limited. was 14. incorporated on 18 October 1983 as Damilarp Pty Limited which was a shelf companv. According to Mr. Davev it is intended to change the name of the companv. It 1s not carrying on anv business at the moment. I donot know whether those statements are correct or not. The evidence does not enable me to sav. The evidence also discloses the name. Henrv F. Halloran & Co. Group of Companies. has been reaqistered as a business name pursuant to the Business Names Act 1962 (N.S.W.). Originally the proprietor was to be the first respondent, Henry F. Halloran & Co. Ptv Limited. but the Corporate Affairs Commission would not accept the reqistration because the name indicated a qroup; more than one proprietor was required. The registered proprietors were originally the first respondent and the respondent Canberra Suburbs Pty Limited. The registration was effected on 5 Mav 1984: subsequently application has been made to chanage the registration to encompass all the companies in which Idotrack acquired shares as a result of the aaqreement of 16 March 1984. There was an extensive cross-examination of Mr. Davey, much of it desianed to show that the person behind the advertisement was Mr. Lyons and that the advertisement had been inserted on behalf of the Lyons Group of Companies or companies controlled by Mr. Lyons. This cross~examination 15. served to demonstrate how unsatisfactory Mr. Davev was as a witness. but LI donot think it assists areativ in the resolution of the question to be decided in the case. In summary. the facts of the matter are as follows: i. Henry F. Halloran was awell known real estate developer in New South Wales from some time in the 1890s until his death in 1953. He had a reputation for sound qudagment. honesty and integrity: that is the burden of his son's evidence and what his son said 1s confirmed in the evidence of Mr. Hiscock. 2. In 1930 he separated his activities bv forming the companv., kealtyv Fealisations Limited. as 1t then was. It carried on business as a develorer leaving him to pursue his professional occupations which included survevina, valuina, town planning and convevancing as well as some other such activities. His name continued to be known in connection with real estate development but the name Realtv Realisations. either Limited or Ptrv Limited developed, a reputation of its own. 3. Tt was that name which continued to be used after Mr. Halloran's death in 1953. The firm name, Henrv F. Halloran & Co.,. which Mr. Halloran senior had used was allowed to lapse so that by the vear 1960 or thereabouts it was Realty Realisations alone which had a reputation in the land development business Mr. Halloran had commenced. 16. 4. Realty Realisations Ptv Limited has had a continuing reputation in that field since 1930. 5. It was operated bv members of the Halloran familv until the partition which occurred in 1982. Since then 1t has been operated by the applicant. 6. In 1982 the maior interests in the land managed bv Realtv Realisations Ptv Limited were held in almost equal shares bv the applicant and his two sisters. Mr. Hisock also had a small interest. 7. %In 1982 1t was decided to divide up the land so that the applicant and his sisters would have about an equal share in it. This necessitated transters of land from some of the companies to others. When this had been done the sisters controlled 17 companies and the applicant 7. Additionaily he had the companies Realty Realisations Ptv Limited and Loralyn Pty Limited. 8. Each of the applicant and his sisters was then free to deal with his or her land as he or she saw fit. In the result the sisters decided to sell to the Lvons' interests. This was done pursuant to the aaqreement of 16 March 1984 which provided for the transfer to Idotrack Pty Limited of the shares in each of the 17 companies which they controlled. 9. In Mav 1984 steps were taken bv the Lvons' interests which would enable them to use the Halloran name. 10. The first manifestation of this was the advertisement which appeared on 6 October 1984. 17. Against this factual backqround the first question 1s what a reader of the advertisement would take from it. In the light of the fact that Mr. Hallioran has been dead for over 30 vears and did not engage directlv in real estate development in his own name after 19306. 1t seems unlikelv that many people. except perhaps some who have a close knowledge of the industrv, would have heard of him or have known of anv reputation he had for soundness of judament. honesty and intearity in land dealina. But the overall effect of the advertisement would be to indicate to a reader that a very old undertaking which had been in business at least since the early part of the century was still in business and was continutna in the tradition of its founder. That tradition 1s best summed up in the opening words of the advertisement earlier quoted, namelv: "Since 1906 our land developments have vproven to be outstanding investments." And the words further on in less bold tvpe: "For nearly 100 vears our Estates have proven to be a sound form of investment. Like the purchasers of land at Seaforth in 1906 we are ust as confident of the investment potential of todav's offering." In mv opinion, a reader would understand that he was dealing with a aqroup of companies of substance with a long 18. and successful experience of the purchase of land for unvestment purposes. The message is one of stabilitv, londg experience, continuity. substance and wise jiudqment. There is also to be inferred that the advertiser 1s the continuation of the enterprise founded bv Henrv F. Halloran. The provisions of the Trade Practices Act which are relied upon are sub-sec. 5211) and para. 53A(1)(a). The former section provides that a corporation shall not in trade or commerce engage in conduct that 1s misleading or deceptive or 1s likelv to mislead or dece1ve. The latter provision 1s as follows: "S3A.(1) A corporation shall not. in trade or commerce, in connexion with the sale or aqrant. or the possible sale or grant, of an anterest in land or in connexion with the promotion bv anv means of the sale or arant of an interest in land- (a) represent that the corporation has a sponsorship, approval or affiliation it does not have;" The essential submission made by counsel for the respondents was that there was no breach of either provision because the various companies were, under their present control. well entitled to call themselves the Henry F. Halloran and Co. Grouv of Companies. Thev were all companies founded bv Mr. Halloran. The land advertised had been acquired either before 1930 bv him or in the veriod between 19. 1930 and 1953 bv Realty Realisations Ptv Limited. The companies were thus properlv described as the Henry F. Halloran Group of Companies. The position was little different from manv other situations in various fields todav where companies are acquired bv other interests. Dut continue on in their former names. There was no attempt bv counsel to relv upon what Mr. Lyons had said in his letter to Mr. Halloran. namely that a certain element of qoodwill was involved in the acquisition of the shares. I have not mvself been able to find in the aqreement reference to anv such matter. I have aqiven the submissions mad2= by counsel for the respondents due consideration. In my opinion they should be reiected. I am unable to tind in the whole of the evidence anv basis for the continuitv and connection with the Henry F. Halloran name which the advertisement claims. Since at least 1930 there has been no such aroup. From that time the business was conducted by Realtv Realisations. From Mr. Halloran's death in 1953 little or no use ot Mr. Halloran's name was made. After the business name lapsed in or about 1960 there was no use of ait at all. It seems to me that all that happened in this case was that the Lyons' interests acquired land formerlv owned or controlled bv the applicant's sisters. The vehicles used for the transfer-of the lands were the companies which held them, the shares in which were transferred from the sisters to the Lyons' interests. 20. The real advertiser was Mr. Lyons or companies controlled by him and perhaps Industrial Equitv Limited with which he 1s apparently associated in this venture. The claimed connection with Henry F. Halloran and Co. 1s based on no more than that the Lyons interests purchased shares in companies formerlv controlled by him. his familv or Realtv Realisations Pity Limited. In my opinion the advertisement is a pretence of something which is not and 1s thus misleadina and deceptive. Iam also satisfied that. within the meaning of para. 53A(liia), of the Act 1t represents that the qroup or the companies have a svonsorship or affiliation which thev do not have. It mav be that the Lyons' interests have a reputation in real estate in their own ridht: the evidence does not enable me to say. But thev are not entitled, in mv opinion, to hold out to the public, as thev have done, that thev were founded almost 100 vears ago or that thev have had a continuing tradition in real estate development based on what I mav call the Halloran connection. For those reasons the applicant is entitled to relief of the kind which he seeks. In a moment I shali raise with counsel what the form of that relief should be. but before I do so, there are two matters that I should mention. MNeither is associated one wav or the other with the merits of the 21. case. but they are matters which have come to mv attention in the course of hearing the evidence. The first is the reaistration of the business name, Henrv F. Halloran and Co. Group of Companies. Section 5 of the Business. Names Act 1962 (N.S.W.) provides that a person shall not either alone or together with other persons carrv on business in the State under a business name unless the business consists of the name of that person. or. the business name 1s reaistered under the Act. "Business name" is defined in sub-sec. 4(1) of the Business Names Act to mean a name. stvle, title or desianation under which a business 1s carried on. Io fand it difficult to understand upon the evidence that I have had in this case how it could be said that the companies which are said to form the qroup and which mav by now have been reaistered as the wsroprietor of the name, carry on a business in the sense in which that expression is used in the Act. The second matter I wish to mention has to do with the minutes of one of the Lvons companies. Lvons Brothers (Australia) Ptv Limited. The minute book. that is to sav the bound minute book, was produced and marked 1 for identification. It contained no minutes after 30 November 1978 affixed to it although there were minutes dated 30 November 1981 and 31 December 1981 appended to a pace of it with a qlider clip. There were also produced separatelv from 22. the minute book certain minutes of meetinas of directors and of annual general meetinas, not all of which were sianed. These minutes were produced by the company secretary, Mr. Davev. The separate minutes on the loose sheets of paper were marked 3 for identification. Eventually the documents marked 1 and 3 for identification became Exhibit E. In mv opinion the material to which I have referred discloses a prima facie breach of s. 253 of the Companies Code (N.S.W.) which, in sub-sec. 1, provides that a company shall cause minutes of all proceedinas of aqeneral meetinas and of meetinas cf irs directors to be entered within one month after the relevant meeting is held 1n books kept for that purpose. There is a penalty of either $1,000 fine or imprisonment for three months or both for breach of the section. I have also some reason to think that the reqister of members of one of the companies which 1s also in evidence does not comply with the provisions of s. 256 of the Companies Code. For those reasons a copy of this jiudament will be sent to the Corporate Affairs Commission after it becomes available. The minute book and the loose minutes which together form Exhibit E will not be released except on the order of a Judae of this Court. ! 23. (Discussion then ensued as to the form of the orders to be made). HIS HONOUR: 1. (a) (b) I qive leave ta the applicant to amend his application by: inserting after the words "Henrv F. Halloran & Co. Group" in para. 4(e) and para. 91e) the words "under either of those names" inserting after the words. "An order that each of" in para. 8 the words "the twenty-first respondent" I make orders in terms of paras. 1. 2, 4 (as amended). 5. 8 (as amended), 9 'as amended) and 10 of the application. I order the respondents to pay the applicants' costs of the application. I. order that the exhibits other than Exhibit E be returned to the person from whose custodv thev were produced, on or before 1 February 1985. if in the meantime no appeal has been lodaed. Exhibit E is not to be returned except upon the order of a Judae of this i cerufy that tris and the 22 preceding pages are a true copy 3f tle 'sasons for Court. judgment herein of The Honourable Mr Justice Sheppard. ' AP, ReMAaar~ Associate Dated 3 DECEMRER /754