"ATS IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G7 of 1987 GENERAL DIVISION ) BETWEEN: ESTHER KULLACK Applicant AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED First Respondent AND: PAUL HARWOOD Second Respondent AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED Cross Claimant AND: ESTHER KULLACK First Cross Respondent AND: VALERIE KULLACK Second Cross Respondent AND: ARMIN KULLACK Third Cross Respondent MINUTES OF ORDER JUDGE. MAKING ORDER: PINCUS J. DATE OF ORDER: 2 JUNE 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application for an interlocutory injunction be dismissed. > ae Ure a os 2. The applicant pay the costs of andzincid ental™t6 the application, including costs .reservé Monday, 18 May 1987. i ae Settlement and entry of orders lage wits Order 36 of the Federal Court Rules? : - \ i area ~s - ee er pee ne ee eee emp ae a IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G7 of 1987 GENERAL DIVISION ) BETWEEN: ESTHER KULLACK Applicant AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED First Respondent AND: PAUL HARWOOD Second Respondent AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMYTED Cross Claimant AND: ESTHER KULLACK First Cross Respondent AND: VALERIE KULLACK Second Cross Respondent AND: ARMIN KULLACK Third Cross Respondent PINCUS J. 2 JUNE 1987 EX TEMPORE REASONS FOR JUDGMENT This is an application for an unconditional interlocutory injunction to restrain the exercise of rights under security documents pending the resolution of the principal dispute between the parties. The application was made on 23 January 1987, and, as originally framed, relied upon allegations of misrepresentation and negligence relating to the applicant's entry into a transaction of loan. san weree ers oe pretae ees eae pa ee oe Ra pee eye oe oe wee oes ai ry . + Soak? Mr. Douglas, who appears for the applicant, has today obtained leave to amend the statement of claim so as to raise other points, and it is, in essence, on those new points which he relies in seeking the relief, which is an unconditional injunction, that is, one not subject to a condition as to payment into Court. The two questions which are raised may be stated in an abstract way. Firstly, the suggestion is that under s.9 of the Currency Act 1965 it is unlawful to have a loan transaction in mixed currencies, for example, partly in Australian and partly in Swiss currency. It is common ground that the present transaction is one of that sort. The relevant part of s.9 of the Currency Act 1965 is sub-s.(1), which is as follows: "Subject to this section, every sale, every bill of exchange or promissory note, every security for money, and every other contract, agreement, deed, instrument, transaction, dealing, matter or thing relating to money, or involving the payment of, or a liability to pay, money, that is made, executed, entered into or done, shall, unless it is made, executed, entered into or done according to the currency of some country other than Australia, be made, executed, entered into or done according t the currency of Australia provided for by this Act." It is argued by Mr. Muir Q.C., senior counsel for the respondents, that the purpose and effect of s.9(1) have nothing to do with mixing of currencies, and that the sub-section is designed to prevent the use of what might be described as unofficial currencies - that is, currencies which are not either the recognized currency of some other country or the proper Australian currency. He gave, as an example, the use: of Australian pounds-- ' « '' A' a : ' { V F ¥ , - fi : ' :, ,a he" + < \ "t dy ss a, i! : ¢ \ why "46 paige? to iy Ye POET Genes pon pn eteaare eee eee cee pa a owes ieee ran . tne een e ea er ee eee ~f¢ The argument which Mr. Douglas advances may claim some support from the words of the section read in one way, but seems to me to impute a very improbable intention to the legislature. The other point that Mr. Douglas raises is of similar character, although in my view, rather weaker. It rests upon s.15 of the Money Lenders Act 1916-1979 (Q.), which reads in part as follows: "(1) All loans purporting to be loans of money shall be made in current money, bank notes, or cheques on bankers, and shall be made in full without any deduction for interest or otherwise. No land, goods, or articles of any kind whatever or things in action shall be given or supplied in or by way of barter or otherwise for or as part of any such loan. This subsection shall not be construed to prevent a money-lender deducting from any loan of money all such fees, costs, charges, and expenses of any kind whatsoever as may be lawfully charged pursuant to this Act, except interest. (2) Every contract made or transaction entered into or performed in breach of or with intent to evade or avoid this section in respect of a loan after the commencement of this Act shall, to the extent of such breach, evasion, oar avoidance, be absolutely void." The argument is in substance that the loan here in question purports to be a loan of money and must therefore be made as sub-s.(1) prescribes. Counsel says its prescription is that it must be made in Australian money. The simplest answer to the argument, perhaps, 1s one Which is made by Mr. Muir, namely that presumably the word ""money" has the same meaning throughout the, sub-section, and if "money" in the second place means Australian verse ' ate y Spey ew wee ore ne RSaeees mt ee er ete ce ce ca ee ween money, then 1t presumably means that in the first place. Here the loan does not purport to be a loan of Australian money. It purports to be, as Mr. Douglas says, a mixed loan. Another problem in the argument is whether the Queensland Parliament could ever be taken to have intended to govern the way in which Queensland transactions shall be transacted with respect to the currency to be used. Although the arguments are both ingenious, they seem to me not strong; I would be surprised if either succeeded at the trial. Mr. Douglas contends, and it is so, that one of the sets of circumstances in which 1t may be proper to decline to impose a condition of payment into court on grant of an injunction to restrain enforcement of a security pendente lite is where the transaction in question is said to be absolutely void. The matter, however, is ultimately one for the exercise of discretion and it appears to me that where the points taken are wholly technical, that is, have no substantial merit, and where they seem not likely to succeed, it would be wrong to depart from the usual rule applicable in such cases. Despite the able argument of Mr. Douglas, I am clearly of the view that the proper exercise of the Court's discretion would impose a condition as to payment into Court and since the application for an injunction is not pressed on that basis, it will be refused. i certify that this and the 3 preceding Pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Pincus lef Associate Dated 2 Sune (9&7. You tere ea eons ae oper : . : - ! . rT er