| CATCHWORDS TRADE PRACTICES - consumer protection - interlocutorv relief - discussions about whether respondent would exercise its securitv over applicant's land - whether misleading and deceptive - balance of convenience. Trade Practices Act 1974 s.52 SCAREL PTY. LIMITED v CITY LOAN AND CREDIT CORPORATION PITY. LIMITED No.G513 of 1986 FOX J. SYDNEY 27 NOVEMBER 1986 IN_THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No.G513 of 1986 ) GENERAL DIVISION ) SCAREL PTY. LIMITED Applicant AND: CITy LOAN AND CREDIT CORPORATION PTY. LIMITED Respondent MINUTE OF ORDER JUDGE: FOX J. DATE _OF ORDER: 27 NOVEMBER 1986 WHERE MADE: Svdnev. THE_COURT ORDERS THAT: 1. The application for interlocutorv relief be dismissed with costs. Note: Settlement and entrv of orders is dealt with in Order 36 of the Federal Court Rules. | : IN_THE FEDERAL COUPT OF ANSTPALIA a is] i) m rv Ww iP) th Im 9) i) in NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON BETWEEN : SCAREL PTV. LIMITED Applicant AND: CITY LOAN AND CREDIT COPPOPATION PTY, LIMITED Respondent CORAM: FOX J. DATE: 27 NOVEMBER 1986 REASONS FOP JUDGMENT These are interlocutory proceedinas toa restrain a mortaagee's sale. The applicant is the registered proprietor of rand at Normanhurst and the resvondent holds a first mertaage over it which is reaqistered. The amount stated as secured is $489,750, but there has been continuina default for several vears as a result of which it is said that the amourt now pavable bv "he applicant is $1,403,825.37. The resvondent has qiven notice under $.57(2)'(b) of the Real Proprertv Act 1900 of its intention fo sell and the sal i} has been advertised to take place bv auction wn en 4 December next. The apolicant's case is that arrancements were made, ameunting probablv to an agreement. between the Managing Director ef the applicant (Mr, Yates) and Mr. Adelstein as Managing Trrector of the yvresscondent in August 1994 that the resocndent would not exercise its cower of sale over the land bur would inctead be aiven vecurity over iand at Darling Harbour, which was owned bv Yates Property Corvoration Ptv. Ltd. of which Mr. Yares Was apoarentiv the principal. The Darling Yarbour land 1¢ werth very much more than the land at Normanhurst. The oriqinal loan arranoments were made in Nevember LORL The applicart granted security in the ftrm of the registered mertaqage over the Normanhurst land ard an ecuitarle charge over its undertaking, which was stated as fimec in relation tc realty. The charade has been reaistered with the Cervorate Affairs Commission. Guarantees of the ltan were executed by Mr. Yates and bv Yates Property Carnoration Pry. itd The apolicant defaulted and woursuant to the eauitabie ewharge a caveat was entered in March 1984 on 'The "17le of other land at Trows Nest owned bv it In Aor1] 1324 the resnondent rey "a wt — 'D o osbow D w ke] B pay nm w 2] vtaran fay a fae ot iP) s m "S oD Qm 1t 3D $a it Hom 1D early Aucu withdrawal of che caveat ¢o that the Crows Nest land could he sold, but the respondent's solicitors refused. wecured., the respondent becomina a third mortaaqgee of the Darling Harbour land. The land was resumed later. in Mav 1985, by the Darling Harbour Authority as part of a larae idevelooment scheme. The first and second mortaaqees., whose mertaages remain remistered, would seem now to have been mainly paid out by monies advanced by the resuminc autheritv against "the -ccmoensation monies which will eventualy be waid br the apnlicart. The ieie] ry ot Q wy Q D a w wa Pe] ia) t+ "s 'D Q i) un + wD ss 'Dp fon r itsu mqQ at A bt, Hr o rey resvondent's thir oy A caveat an the title. An instrument of variation of the Nermanhurst mortcace was executed on 24 September. but was not reacistered. This oriv dealt with the repavment date. There was a much fuller "deed of variation of mortacaqge" executed on the same dav. clause 2? of which was as follows: "2. Mortaade No. $823212 Cthis heing the original Normanhurst mortaage] and the Deed of Eaurtable Mortaade te herebv varied ta vorovide that the orincinal sum and unterest now outstanding, namely one nwrillim & taventy fhree thousand twentv five deliars & fifteen cent ($1.973,.025.15) shall be revard tc the Mortaagee oan th 21st dav of Seotember 1995," : D in : ® qq ts aras >] a) aa wv ot)rary Ste ie] Q ok HY)lezxQ "y w+ Q by Q 0D EH py uh Db tad La) s iD a a 'D mn a Ww ty On 2] ao Ooin He a Oo s i)AH o .) (a) m ct 'y Hee arey % is @ co i 8) a " ' n Darling Harbour mortaqage secured the total 77 f_.°- lt LF cha difference being expressed to he the resooniert = -lstz in the Supreme Court proceedings. The interest vates and tats orf venavment (72 Sentember 1986) hecame the same in sicn cietreres Although mone of the documents veferre: tt cs Trive a2 av a at caveat, 21 would seem that 1 was then witttcat tee ccs raceeded. uw w Man b uo into existence evidencing it. What did hacren ccARF the7 77s Darling Harbour mortaace was thereatrer szrantec fyi wunderstarding of what was said and 1ts meanirc are efre77 17 4s it necessary to set the conversation in 1ts cen text The context as relred upon bv tne atclirant ote lirtic stated. The Normanhurst lan: was worth 2 *_irtiir if cas eri osnt secured on it. the vesnondert was oreceinc fF: tacmerr ont vn Vates had control over cr a santrellirae i-terezt Lt Tit He Provertyv Cerpcration which -wned the Darlire -2z_ Tag an was expected that the land would goon be transferred ta the Government and this would realise more than enough te pav out the respondent in full. Mr. Yates offered. or was asked [9 Give. securitv over the Darling Harbour land and Mr. Adelstein said that if his companv. the respondent. had that security it would not bother itself 'or werds to that effect' ctoncernine the Normanhurst Land. T do rot know whether Mr, Adelestein was then aware of the amount secured bv the existing mnortcaces. The exchange went in part as follows: Yates: "Can I have vour aqreement then that the mortaage over Darling Harbour ¢ v make me sell Nermanhurst or do anvtir bathe' unterefere with the settlement of Da a at which time vou will be waid for Nor 4 vou know TI have enouch croblems without wondering what will hapoen with vou in future. T'm trying ts improve the Normanhurst value bv obtaining a develonment arproval. That's costing we more dollars and helpina vour vcositicn' all the time. Have we a deal Peter?" Sdelstein: "Look what can I do? Normanhuret os useless, I've been in now with vou for three vears. T might as well stay umountil this 15 all rveselved. Darling Harbour will enable me to eventually cet mv money back with interest. As lona as IT can show av Board that I have adequate security ther that will be OK. TE vou can get Tour approvals and refinance the lean and pay us back then that's 2 bonus." Yates: "Good. thanks Peter, I reallv do aporeciate vour artitude in all this. You'1ll orqaanise the documentation?" Adelstein: "Yee, I'll talk to Roger and get Dack to vou." There had iust before this beer discussions about the Crows Nest oroperty. Perhaps the strorgest statement sucporting the intended arranaement is to be found in the evidence of Mr. Miles, a eolicitor then acting for the applicant. who was oresent ata tonference in September 1984 attended bv Mr. Yates, Mr. Adelstein and Mr. Carnforth. legal reoresentative of the resnordent. He Adelstein said: m BYmnN "Our securitv over Scarel's Normanhuret orcoerty 16 vi.tually of ne oractical value. Tf we are aranted 4 vollateral mortaaqge over Darling Harbour we'll not bother ourselves anv more "1th the Normanhurst eecurit'." The arrancement relied upon would mean that the respondent would be vaid ute debt out of the aweantual sale cof Darling Harbour. The date of repayment, as TI have said, was fived at 21 September 1985. In many cases such a date is not cf The context as relied uccn bv the resoondert brings inte account ag additional factors the Crows Nest caveat. the Suvnreme Court eroceedinas, and the documents executed on 74 Saentember ' e Us) Fy Ps ey D " wy [asy SG i) o ot c im cy iD oa + vy a+ te) o 1D= ? yi) r ib Ss D> w ita wt P Qo w fay a 9) Ss "s i) a vr H A. ip) io] a) Tt w ip) oO D ve) t wv ea ty ct 1t ty iD n ip)utD tS m w Tt ie 'J=) 4 a 1 Ye ' ' a ' q" iw mn ts w nm " at 1 ah Se a er 1 ul ca ot f£ i' St 1" ft a ' r ot ' ' r H I t fy a mt ile . f. tn a "i 'tr ' inl F m 1 t f l rl t 1 ' { 4 io ' Se ae be ed 1 ma 1 vt al 1 , it qe 4 a . ql re ny c ai re $ A { w v q hi ut fr i 4! H tt mw a 5 ' 1 'rood w trot (an) ' o ho ig Boos uw y ae L} mi t a f q nD "1 mm 1 ot ot tr ta w t! . ' £ an c w ! o at i 0 rn et a a rt ny q tl ! ' c a uN ha ra a ve a ro ' bh { ca L tt ut is a ¢ er a ri ¢ ' f1 ate tr s* a) oe "oO a f E hd tt od u ot 1 c mr g == the a fa ' u ' 1 na an . rn - fe he iy " a im we L ve ! ut Fr as! a nt 1 " Un t w tu ' F tr t « ' a ay oe ' & te , ' a ' ti tt a ' 1" ' 1 ' ee ', te . nn ay 44 u 1 oD a q a yt : f. fig ' ia t ve ar t rt ny OT wa if ] s' ro rs o ' o ' ra Lb 1! te ef <' ' i ug we ' a 4 . - 2 I a n on " ia mh G te u ot ' u te oD ud rf te a Ve { ms t' 'ye te me te ° w iy qQ tu ci ra ue et t" 4" iv " oy wc a a ', $i " a t th w ' th ot a q fi c loo ond hh rl _ " th qe cl ue " Mt wt ' Cr ot mt ': be ' ef tr St ws ' it we al uo 4! nm Sr Ha " w "e . in oo ol hi a rt i) fa on el 1 a hy ae ot 4 "4 Ff is ' Si yt ul ig ni t t ay & gt Tid ra oo a bo uw ft a] St uw a OD a + a vl ' "1 oa) D] th iq cr) of t tz we ta f} mn y! ' ae u a a ia . ae re qe Sa "4 m a a} e f a . 4 ' in na ag it uw in ra Si tt iy a1 4 tu ' Ww tw ray ray br vt Wa " ue a Ae of a uw te vr Lb a ' " t ' v 1 ad ' ra) a Ly tt we e 1 he te = fo F. " rw . " fa t fi: F ra ti C qe hy . . me Ot ub u We te mt T a ct b u Cry ue vst u uv on ty, @ etooue c a it a . m G% 4° th i) wo a g ' : tr ' ' i" c "1 r¢ h CG Ci] 'ee Da io \ '' . c on ia) or + 2 On ' a ae sl tr t 'cl rt 1 a he 4) rh od ey ud gh a te ue qa Nt ( uw at ue vu a i wv a , iq Cr fr ft t a a 4 G st @ E & a) a F te { tr a +) a " , be io u ' 7 u a 0 2 ie Wr nm a o a t' 4° . d 4° " 1 q or my ca c! hy we i Cc 4 , Tl uw et my Fi ra) 83 Re He he fi u an a tt ne { "$ Cy ul ur of Aw o t J! mn 4 if cl ni . ' c, t t te ' <n a oe 9 ! . wt b 1! mw 4 Hd b. mn is St 6. £ iw ie wo O) et al q a ty s° it ad wy ad qe . 4 ut ur u th q ct yr ur ce ul "we it a rf a . we ' f it ca id A] qe 4 $e cud vy) a) 4 ct iy u co £ to a c' be , ay nm otoord ed 1 " 1 i u ! oo uw ob odo ta - ' t t U uo rr os) Sa xt C, g a' th t qr ia mu {, st S ' a ne oo wv at he tt ev " we rt " 1 Ww t vr a o 4 q D Tt is submitted on behalf of the applicant that a rase under s.52 of the Trade Practices Act 1974 15 made aqcainst the respondent because Mr. Adelstein did not have ary belief that his company would release the Normannurst nortaace, or. at least. the power of sale therein. The credit of Mr. Adelstein was attacked. Hi + ro nfs] Pad a o vy)me <4 fy ay 'oO "ss oO 'Sd Ley v Wu ct 'D mhLey at oe 'D2+ ot PP) 1D ta { 'D 'S 'D cf) i) w t 'Db a 1) In mv view, the applicant does not have an arquable tase. which can be put on sound grounds. cr one which justify the avant of interlocutory relief. I shoule addin this connectior what mich cof the evidence, I would think neariv all of 14. which emald be oresented at a final hearirg has been presented tefare in oO th m 'Dp it it et it0ct wa me. In the long run, I think that the term - a 1D a ct 1D A od rs - ive) D & w i D what was done oon 2? virtually insuverahble hurdles. but ther O) w " 'D Tt ty re Dthers IT have mertioned. Om the question of balance of convenience. the asplicant has presented little evidence which qoes to show the lcse it wiil suffer aif the sale ares ahead. The resoendent. on tne cther hand. as the eyidence shows, will have lest *he ovat inconsiderable expense of advertisirg and arrangira the sale, if wt. dces not proceed om the scneduled date. ard interest at a dailv rate of over $509 dailv will continue I therefore dismis: Torunsel for the Applicant: Solicitors for the Applicant: Acrearance for the Resvoondent Selicitors for the Respondent Mares of hearina: Date Judoment delivered: ay RCoKNe £9 . voplication. with costs. MM TRADE PRACTICES - consumer discussions about whether over applicant's land - balance of convenience. CATCHWOPDS protection - interlocutory relief - respondent would exercise its securitv whether misleading and deceptive - [Trade Practices Act 1974 s.52 SCAR PTY. LIMI Vv PTY. LIMITED No.G513_ of 1986 FOX J. SYDNEY 27 NOVEMBER 1986 CITY LOAN AND CREDIT CORPOFATION IN_THE FEDERAL COURT OF AUSTRALIA ' ) NEW _SOUTH WALES DISTRICT REGISTRY } No.GS13 of 1986) GENERAL DIVISION BETWEEN: SCAREL PTY. LIMITED Applicant AND: CITY LOAN AND CREDIT CORPORATION PTY, LIMITED Respondent MINUTE OF ORDER JUDGE: FOX J. DATE OF ORDER: 27 NOVEMBER 1986 WHERE MADE: Svdnev. THE COUPT ORDERS THAT: 1. The application for interlocutory relief be dismissed with costs. Note: Settlement and entrv of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COUPT OF ANSTPADTIA 9 Q u pa Ley Pe) oy I~ 'D £0 yh NEW SOUTH WALES DISTRICT PEGISTFY I SCAREL PTV. LIMITED Applicant CITY LOAN AND CREDIT CORPORATION Pry. LIMITED Respondent CORAM: FOX J. DATE: 27 NOVEMBER 1986 REASONS FOP JUDGMENT E0X J. These are interlocutory eroceedinags to restrain a mortaagee's sale. The applicant 1s the registered prorrietor of land at Normanhurst and the resoendent holds a first mortoaage over it which is reaistered. The amount stated as secured is $489,750, but there has been continuing default for several vears as a result of which it is said that the amount ncw pavable hv the applicant is $1.403,825.37. The respondent has aiven notice under s.57(2)(b) of the Feal Property Act 1909 of its intention to cell and the sale has been advertised to taxe voiace by aucticn en 4 Tecember rext. The applicant's case is that arrancements were made. amounting probablv to an acreement, between the Manaqine Director of the anrmlicant 'Mr. Yates) and Mr. Adelstein as Managine Cc wo mt iw Te «oO Bo it yr or ty oa iT is p "s 1) m')Act © respondent in Aud WAG ApPparentlv the wprincival. The Darling Harbour land 1¢ worth very much more than the land at Normanhurst. The original loan arranoments were made in November LAI, The applicant granted securitv in the form of the registered vertaqage over the Normarnhurst land and an equitable charce® over its undertaking. which was stated as fired an relation +o realtv. The charge has been reaqistered with the Corporate Affairs Commission, Guarantees of the isan were executed by Mr, Yates and by Yates Prorerty Corporation Prev. Led. ~hargve a caveat wae entered in March 1994 on the tirls ef other Tand at Crows Nest owned bv it In Acyjil] 1224 'the rezoondent cemmerced peroeceedings in the Cupreme Court of New South Wales TJatee Treverny Corooration Fry. Ltd, as suarantors tlaimire the erconcital ard oacerusd interest of tha November 199] Tran Tx earths: Anaust 1684 t early LUISUST Las¢ ~ eh w iy is] —i] wwt rr) Nn . pay w iy 4. + te) s in Lay D Q » mn + ts th + vy D> 'D ie) WS 1) a i) =z 0D tn ctBu a pe y ie] — an. withdrawal cf the caveat <¢o that the i) m tad 1D al c ut 1D rey eold., but the respordent's ¢eoliciter An 24 Sentember 1994 the nasiticn was rearranged, The Supreme Court woroareedings were settled on terms whith required Yates Provertv Corporation Pty. Ltda. to arant a mortoage over the nt. This mortcaaqe was ie) w » rQ Tt w % ty iP) c tay fm] wrey + Qo + w D "S wD if G3 rah executed, the respondent becominae a third mortcacee of the Harbour land. The land was resumed later. in Mav 1985, bv the Darline Harbour Authority as part of a larce development scheme. The farst and second mortcacees. whose mortaaces remain reqistered. would seem now to have been mainlv paid out by monies advanced bv the resuming authoritv against the compensation monies which will eventualv be valid bv the applicart. The resvondent's third mortaaqe was not reagistered. but was notified in instrument of variaticen of the Normanhur'et mortcace was executed on 24 September. but was not recistered. This onlv "2. Mortaace No. $223219 Cthis being the vriainal Normanhurst mortgage] ard the Deed of Ecuitable Martaace te hereby varted to vorovide that the orirncinal sum and interest now outetandine. namely one million & savant three 'hougane twertv fave dellars & 'f21fteen cents $1,973.028.15.) shall be reecard to the Mortaadee on the 2lst dav of Sentember 1995, The arant of the Darling Harbour mortaaqe was exprersed ri se in censideration of this variation. The varied Normanhurst mortoace secur]ea 4 triccictal if ¢1,072,025.15, which represented the oracinal ctryintrical oats aterued irterest on the applicant's loan ct 'Te-rember llth Tre Darling Harbour mortaace secured the total ff f_.°+2 Flt lt che difference being expressed *o he the resecoriert = ttt in The Nest caveat. it would seem that it was then witnasranre ere ve sale voraceeded. Darlina Harbour mortaave was thereafter srartec 2yoRe understanding of what was said and its meanince arc efrect im te necessary to ser the conversstion in its certest "n ct w it oD rey oveo) %gp» pay wo c 's tn + ia p ts EH w m £ fe) "S it Y AO yal oa «tt " ; t mo tmt uA eacured on ait, the respondert was oresftine ft tTartent ers "tT Yates had control aver cr a controllire c.--eree7 Lo "arse mn wae exnected that the land would goon be transferred ta the Gevernment and this would realise mere than @noudh te car out the respondent in full. Mr. Yates offered. or was askecd to aive. securitv cver the Darling Harbour land and Mr. Adelstein said that if his companv. the respondent. had that security it woul net bother autself 'or words to that effect) ctencerring the Normanhurst land. I do not know whether Mr. Adeletein was then The exchange went in wart as follows: Yates: "Can I have vour acreement then that if I give vou the mortgage over Darling Harbour then vou won't make me s@11 Normanhurst or do anvting that would interefere with the settlement of Marling Harbour at which time vou will be paid for Normanhurst. As vou know TI have e*nouch oroblems without wondering what will happen with vou in future. I'm trvine to improve the Normanhurst value bv obtainina a development approval. That's costinra me more Gollars and helpina vour positicn all the time. Have we a deal Peter?" Adelstein: "Look what can I do? Normanhurset 1¢ useless. I've been in now with vou for three vears. T might as well stav oaim until this is all resolved Tarlina Harbour will enable me to avertually cet my meney back with interest. As lona as I can enow -7 Beard rhat To have adequate security 'then that will be OK, If vou can get veur apsorovals and refinance the loan and pav us back then that's a bonus." Yates: "Good, thanks Peter. I reallv do avcreciate vour attitude in all this. You'll organise the documentation?" Adelstein: "Yes. I'll talk to Roger and get back ta vou." There had tust before this beer discussions ahout the Crews Neet 'uU fa) s a (p a] na at Lom % wns is] mest ost arrancemert ais fo be found in the evidence of Mr. Miles solicitor then acting for the applicant. who was present at a "Nur ¢ecuritv over Scarel's Normanhurst property is virtually of ne practical value. Tf we are cvranted a qOllateral mortgage over Darling Harbour we'll not bother Seurselves anv more with the Nermanhurst security." The arrarqement relied upon would mean chat the Tarlina Harbour. The date of repayment. as T have said. was September 1995. In manv cases such a date is not of great sranificance. but 14 was ourposively fined in t+ 1D n Qtr4 tas relied unon by the respondent brings into account as additional d factors the Crows Nest caveat. the Suvreme that the aintention was that security be oarven ever Bart Harbour to compensute for the loss of recourse to Crows Mast, and nat to replace the Normarhurst security. . ie 1. qe t On 1 q 1 ul te \ "fe A ur ss n ut is ' q Sa a a at s! it qe ut nt & rm tr a 1 ot ' ' bs ' ue i 1 (ir f a : a f ' ih at ie ' ut i St t ue in u 1 el t 1 in £ uw 1 { rt ' tr Bee a 4 '1 ri a ' ' " ar t us uw We id) a i) 5 oy s 7 me a ' D st ' w $ ' we "1 rt s' i ' t" ot '3 $e at "1 t t ul ' tr on a4 a] a . { : & ¢ .' at nt a "f oa) ft ur ! , t ) y ul uu a | wu ' tr ad ' ui : "1 ut tl : ou us ' & ue f Ll) I u ad 4 ' a a Li) +t t tt 4 ae ar ts he we {, a L a at s! ul a «! a ot ur 6 ov 3 ul fa t a i , re Oo wt it an om tn fo 5 ra P) wt ul 4 ns Ly tu . i mn nO % u H u a qi oo i tog ot ' f 1 de ' re on a on a ¢ 4 4 t! i te 1 1 ve u ia he te ef < t tT te "I is ar et on af ? t ut q ' oa tw tr G ba af Wt ' aw u on me qe tH et i a ye as t t' "Ne Me oy ne nh Q . . u c' ue be © " a 00 a CH w i Sr eo te a 4 th st ot be { vt Ss hh , Q a jr cl ia we tr Sa om ue mw Oo ' ih "1 hr um ye a ef we sy! uw Ns 1 ra uw 'we . ie 1 et on 5° a f° n 1" ot Ny he ot a "A is {. . ' $i tr me a a Vt & 'i (t tt ba a it a im - u on) "tr ' y ye £ Wa of u he uw D i a Uo . io a a a . a to a $a m4 au ay, A 5 a ' 9 bY) ' 1? "a eR ri at a) $e S: us 7) On - qu Q 1 nid o u "at Se Wa ee e m q a at a at be 4 qs ti fo 4a i a ut rf u o wy " we a ' 4" a a f. Ly a1 t 6 id "a ng fe at . Ww ' ' ' co t € q qe : . i u Ce et ws us rt La) u nT) » u On w t tr rt a ' b id OH 4 th tt oA "a " a sf ' zt ' ' € rt a hn wt Pa] 'ee ue Mi ' re Ce s is 1° eG vt a 1 q a ot a 'cl u on ao a be ori ot u sh hog "1 q A] f a u a i w oH + t io Sh rt t Gr ? 4! M3 & a] ca r Ne tt ot hi Ie we 4, c u w Q OU {) fa we he io u a nt " C we oe] 4) te t cy tt On $2 'Lr Hd tt a 4 <! uw - ol uy at ti v mw Fa i ro I") th a C tw ") ' i at t ft Hh an a : ' d {, . ur ' 1 «t no t te a CD . . of id) t qe au t. um ' {, i Se . i§ i t ") ra io et at ny Wi 1 Ot oe y ie . tz al a 4] cl! a 1 uu Ww uw tu ai ia ce vl Gq w qe ar Si ig ut a" i ue 4 ' rl ra Ty {' uw ww ge tt uw" 1 oa r w Ae ey he % a "4% al a LY} Se at ro t ape to ft (' Me . wt Ps) tt et et a a aa 1 on t rt ro 4 u ny cd w » " 0 ul He _ ia i on) u u 1" '. 4h he & '" iq ue of uw al i G L on fs «t c, at be oo ys a q a w we Tt i wv , re) 'p tu tf ' w ' o Cr a ' qu " Tt is submitted on behalf of the arrlicant that a race under ¢.52 of the Trade Practices Act 1974 1s made acairst the respondent because Mr. Adelstein did not have anv belief that his tompanvy would release the Normanhurst mertaace. or. at least. the power of sale therein. The credit of Mr. Adelstein was attacked. Tt is not «usuallv approoriate for the Court to express a view on matters of credit at an interlocutecrv stage. but as I think the acolicant's case ais otherwise hopelees. I feel Free to express the view that I do not see anv substance in the criticisms made. On the contrarv, the account Mr. Adelstein sives seems to me to be sensible and entirely creditworthy. In mv view, the applicant does not have an arauable case, which can be put on sound grounds. cr one which iustifyv the qaranz of aiunterlocutorv relief. I should add in this connection hat mich cf the evidence. IT would think nearly all of it. which could be wresented at a final hearing has beer cresentead before me In the long run, I think that the terme cf settlement. ard what was done on 24 September 1994 are virtually insuperable On the question of balance of convenience. the anvlicant has presented little evidence which aces to show the less 1t wiil suffer aif the sale ames ahead. The resnoendent. on the cther dailv rate of over $509 dailv will continue t2 accrues therefore dismiss . the apolicatior, with costs. T certify that this ard the eight (M voreceding pages are~ 4S frue corey af the Reasons for Judement herein ef his Honour Mr. Justice Fox. v £ P r iJ wv + a ie] | < Dy 'D a rary 'p wD p Mr P K Eassie Messrs Snelcrove Mucsnik & ' Brien : Mr R Anderson 'solicitor) Respondent: Messrs Lane & Lane Svdnev: 19,21,24 November 12986 mMnhDB v J Ss] Pa yDty 0D 'S t+ wD iD Da)