eae * Alte NOT PROPOSED FOR CIRCULATION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY 3 Q ie n oohy reés, GENERAL DIVISTON RETWEEN : RICHARD KURLAND and SANDRA MARGARET KURLAND Applicants AND: EUROPEAN ASTAN OF AUSTRALIA LIMITED First Respondent AND: ERDMANN R.G. VOGT Second Respondent AND: F.J.A. BROWN Third Respondent AND: JOHN R. THOMAS Fourth Respondent dudae Making Order: Burchett J. Where Made: Sydnev Date: 17 September, 1985. MINUTE OF ORDER OF THE COURT THE COURT ORDERS THAT: (1) The application be dismissed bacaiaadl costs. NOTE: Settlement and entry of order. is dealt with in Order 36 of the Federal Court, Rules. 'et . "4 t ot nt lane 8 Pngabeie MLL eaten ate aha epee IN THE FEDERAL CQURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G. 268 of 1985 GENERAL DIVISION BETWEEN : RICHARD KURLAND and SANDRA MARGARET KURLAND Applicants EUROPEAN ASTAN OF AUSTRALTA LIMITED First Respondent AND: ERDMANN R.G. VOGT Second Respondent FE.d.A. BROvIN ' Third Respondent AND: JOHN R. THOMAS Fourth Respondent EX TEMPORE REASONS FOR JUDGMENT BURCHETT J. The applicants have commenced proceedings in this Court by Application and Statement of Claim. Pursuant to leave to serve short notice, granted by Morling J. last Friday, they now seek an interlocutory order restraining the first respondent (to 2. which I shall refer as the Eurasian Bank) from taking any further step in certain proceedings in the Supreme Court of New South Wales. The proceedings in the Supreme Court of New South Wales were instituted by the Eurasian Bank, which is a merchant bank, to recover monies amounting to over $600,000 claimed pursuant to a guarantee dated 7 June 1984 anda letter of request dated 5 December 1984, An order was made bv Rogers J. in the Supreme Court providing for the filing of a defence and affidavit of facts. This order was not complied with. Counsel for the applicants informed Rogers Jd. that it was proposed to launch the present proceedings in this Court, the applicants apparently taking the view that such a course would provide sufficient reason for failure to comply with the requirement to file a defence and affidavit of facts in the Supreme Court. As a result Rogers J. granted leave to the Eurasian Bank to enter judgment. It is submitted that, because the issues, sought to be raised on behalf of the applicants, include an issue under s.52 of the Trade Practices Act 1974, I ought to accede to their request for an interlocutory order restraining the Eurasian Bank from proceeding further in the Supreme Court. Not only has no affidavit of facts been filed in the Supreme Court, but also in these proceedings, the applicants have failed to provide any detailed evidence in support of their application. What has been placed before me is a pleading with a 3. formal affidavit verifving it. Whilst the exigencies of interlocutory applications, which are often launched as a matter of great urgency, may frequently excuse what would otherwise he unsatisfactorv evidence, I can see no reason why, in the present case, an affidavit should not have been put on detailing precisely the essential facts alleged to give rise toa claim under s.52 of the Trade Practices Act. Where an applicant, who could have supplied such details, simply does not do so, it is necessarily more difficult for the Court to be satisfied that there is a sufficient case to justify a grant of interlocutory relief. In the present case, I have no context in which to understand the alleqed wmisrepresentation, said to amount to misleading conduct within s.52, nor anv evidence capable of showing, even prima facie, that its effect 'assuming it were established) was to cause anv particular quantum of loss to the applicants. What is alleged is that an officer of the Eurasian Bank misstated the total amount of the principal debtor's indebtedness, at a time a number of months subsequent to the qiving of the guarantee by the applicants, but prior to the issue of the letter of request pursuant to which apparently a major part of the debt was in some manner "rolled over". The applicants argue that if the alleged misstatement had not occurred they would have insisted that the principal debt be called up then and there. It is obvious the s.52 question thus raised might or might not, even if established, be shown to 4, involve an effect upon the ultimate liabilitv of the applicants to some significant extent. A number of other issues involving the doctrine of non est factum, the law of quarantees, and negligence are also pleaded in the Statement of Claim. All of these matters would of course be cognisable in the Supreme Court and some of them would go to the full extent of the alleged liability. On the material presently before me, there is no basis for concluding that this Court is the forum of convenience: there may be little legal substance and a small sum involved in the s.52 point while a very large amount depends upon possibly real questions of the law of guarantees. I do not think it is an appropriate case in which to grant, upon such evidence, interlocutory relief which would go to the whole of the claim of over $600,000 to which the applicants have chosen not to file defences in the Supreme Court, and in respect of which they have still not filed in any court an affidavit setting out with particularity the facts upon which they claim to rely. Accordingly, the application is dismissed with costs, I will stand the proceeding itself over to a convenient date for directions to permit the applicants to consider their position, and so that, if they choose to make some application in the Supreme Court, the situation in respect of that mav perhaps be known at the time' directions are given in this Court. I certify that this and the four preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. C.h, Ainetak Associate Date: 17 September, 1985.