' Feud foe Asda Ger wi em "IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION ) ~ QLD G9 of 1987 BETWEEN: WALTIP PTY. LTD. First Applicant AND: ANTHONY MICHAEL GEANEY Second Applicant AND: CAPALABA PARK SHOPPING CENTRE PTY. LTD. Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 16 FEBRUARY 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. Subject to the condition that the first applicant pay to the respondent the sum of $7,938, on or before the 23rd day of February 1987, the respondent be restrained from pursuing until further order District Court proceedings number 16 of 1987; 2. Costs of the application be costs in the proceedings. - i Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGTSTRY ) QLD G9 of 1987 GENERAL DIVTSTON ) BETWEEN: WALTIP PTY. LTD. First Applicant AND: ANTHONY MICHAEL GEANEY Second Applicant AND: CAPALABA PARK SHOPPING CENTRE PTY. LTD. Respondent PINCUS J. 16 February 1987 EX TEMPORE REASONS FOR JUDGMENT This is an application for interim relief. The applicants are a tenant and guarantor in respect of a lease of a shop in a shopping centre. When the matter first came before the Court on 4 February, it was adjourned; since then further material has been filed. However, the case is much the same as it was, in that the claim is that the shop in question has a kiosk very close to it which obstructs the view of the applicants' shop. The material discloses that the first applicant had presented to it a plan which did not show any kiosk. The first applicant has also put material before the Court suggesting that, at the time when negotiations took place between the first applicant and the respondent, the proposal to put the kiosk there 2. existed, and one would have expected that the landlord would have made that clear. In my view, as a commercial matter, the presence of the kiosk is likely to make a difference to the average tenant, and it is a matter he would expect to be told about. However, it is not necessary to speculate about that, because, on the face of it, it seems clear that the plan which was presented to the first applicant showed no kiosk. The only doubtful point is whether, at the time when the plan was presented, the kiosk was a firm proposal, and that is a matter, no doubt, to be gone into at the trial. I am of the view that the applicants have shown a prima facie case, or a case requiring investigation, and I am influenced in the direction of granting the applicants relief of an interim kind by the circumstance that the respondent, although it has had an opportunity to do so, has placed no information before the Court with respect to the kiosk. On the other hand, the proceedings in respect of which relief is sought related to a cheque drawn on 12 November 1986 and dishonoured on 20 November. In the view I take, it is only in very unusual circumstances that a court should encourage or sanction the dishonouring of a cheque. I think that business people rely upon a cheque being substantially as good as cash, subject to the possibility that funds may, through no fault of the drawer, not be available. Here there is no suggestion of that; the drawer simply changed his mind and withdrew the bank's mandate. Although there is great force in much of what has been 3. said by Mr. Fraser on behalf of the applicants, I do not think the Court should grant relief in respect of that cheque. I think the cheque should be paid and that the relief should be confined to restraining the proceedings if the cheque is paid. The other point which was raised in the course of argument by Mr. Perry, on behalf of the respondents, is what is to happen with the subsequent liability to pay rental. Mr. Perry said that a condition should be imposed that the applicant pay the rental pending the disposition of the Federal Court proceedings. I decline to accede to that submission for two reasons: firstly, the application relates only to the cheque for $7,938. No application has been made in respect to any future rental. Secondly, it would seem odd, while requiring the amount of $7,938 to be paid, to grant the relatively inconsequential relief of restraining the District Court proceedings on condition that some other sums which may, in the end, be much larger, be also paid. On the whole, although there is some inconvenience attached to doing so, I will, as regards the subsequent rental - that is, rental subsequent to the periods covered by the $7,938 - accede to the suggestion of Mr. Fraser and leave that to the agreement of the parties or, failing agreement, further application. It may be that the disposition of that question will depend upon subsequent events. The order which I propose to make is as _ follows: subject to the condition that the first applicant pay to the 4. respondent the sum of $7,938, being the amount of the cheque mentioned in the proceedings, on or before the 23rd day of February 1987, I order that the respondent be restrained and an injunction is hereby granted restraining it from pursuing until further order the proceedings in the District Court, number 16 of 1987, the initiating process in which is exhibit A to the affidavit of Mr. R.M. Lockhart. I further propose to order that the costs of the application for injunction be costs in the proceedings in this Court. i certify that this and the So prec:ing Pages are a true cony Gi Tne rieso7s for > — 0 : judgroent hersin of Ais Hocour Mr, Jusuce Pincus SE ie Associate Dated ™ 16-2-€7