IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G96 of 1987 GENERAL DIVISTON ) BETWEEN: WALTER CORNEILLE CLEMENTMARIE JANUS First Applicant AND: WINJAN PASTORAL COMPANY PTY. LTD. Second Applicant AND: TWEED CANAL ESTATES PTY. LID. i Third Applicant AND: WINGARA ENTERPRISES PITY. LTD. Fourth Applicant AND: A.G.C. (ADVANCES) LIMITED First Respondent AND: MACDONALD WAGNER PTY. LTD. Second Respondent '. MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 3 JULY 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: Ll. On undertakings being given as hereinafter mentioned, the order made by the Honourable Mr. Justice Spender on the 26th day of June 1987 be varied by deleting order number 2 and replacing it by the following: "That the injunction so granted continue until further order." uo =f voy [7 Ae ne mete eee OT ve NOTE: se festhe r, Find The undertakings mentioned are as follows: (1) That within six weeks of the 26th day of June 1987 the sum of $300,000 be lodged in the Federal Court of Australia, Brisbane registry, or security to that amount be provided to the satisfaction of the Registrar. (2) That the applicants will use their best endeavours to obtain without delay a transfer of the land described as lot 508 on deposited plan 251298 contained in New South Wales certificate of title volume 13054, folio 35, and that the third applicant will give to the first respondent such security in relation to its anterest in the said land as may reasonably be required by the first respondent. (3) The applicants will further cause the third applicant toa give the first respondent, whether or not such a transfer as hereinbefore mentioned is obtained, such security as the first respondent may reasonably require in respect of the third applicant's interests in the benefit of the terms of settlement of Action no. 4403 of 1979 in the Equity Division in the Supreme Court of New South Wales, being exhibit ""D" to the affidavit of the first applicant filed herein on 2 July 1987. In the event of any difference arising with respect to the form of security hereinbefore mentioned, the parties may have liberty to apply. The costs of and incidental to today's proceedings be paid by the applicants in any event; that is, whatever the outcome of the principal proceedings, on a general order for costs being made, the respondents are to have their costs of'today's proceedings taxed and paid by the applicants. Leave be granted to amend the statement of claim generally, without prejudice to the right of the respondents to attack the amended version. An amended statement of claim be filed and served on or before Friday, 10 July 1987, reserving all questions of costs arising in relation to that. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. we late Mik ons eee call eo IN THE FEDERAL COURT OF AUSTRALTA ) QUEENSLAND DISTRICT REGISTRY ) QLD G96 of 1987 GENERAL DIVISION BETWEEN: WALTER CORNEILLE CLEMENTMARIE JANUS First Applicant AND: WINJAN PASTORAL COMPANY PTY. LTD. Second Applicant AND: TWEED CANAL ESTATES PTY. LID. Third Applicant AND: WINGARA ENTERPRISES PTY. LTD. Fourth Applicant AND: A.G.C. (ADVANCES) LIMITED First Respondent AND: MACDONALD WAGNER PTY. LTD. PINCUS J. Second Respondent 3 JULY 1987 ae ia A Sg ee ee tee . 2 7 yan ogy EX TEMPORE REASONS FOR JUDGMENT In this matter Spender J. made an order subject to a condition of payment of $50,000 today; 1t has not been paid. The parties have come before me in a dispute as to whether or not the conditions should he varied. It is said on behalf of the applicants, and seems to me to be correct, that as to about $30,000 the mortgagee's position ere ne Or tt ene Hl Me has advanced. That 1s, it has, in fact, received $30,000 since his Honour made his order and has not had its security, to the extent to which it was then taken into account, reduced in value. The second, and rather more complex matter, which has been raised is that by the terms of a settlement executed in April 1986 it appears that the third applicant has become entitled, on payment of $45,000, to a piece of land which is available as security. On the evidence of Mr. Dyne, the equity in the land is about $25,000. As against that, Mr. Eliadis for the respondents points out that clause 6 of the settlement contains release of any equitable interest. I take the agreement to mean that the plaintiff claims no interest in the land, other than that which is obviously given by clause 4. It appears to me that the applicants have shown a sufficient case to vary the order, because they can offer something which places the respondent mortgagee in a position which may roughly approximate that which it would have obtained under the order, subject to one thing, and that is that they must be able to give security in respect to the rights under clause 4 of the terms of settlement I have mentioned. It seems to me that the appropriate course is to intimate that I am prepared to vary the order so as to substitute for the requirement of payment of $50,000 an undertaking with respect to the rights of the third applicant under clause 4. I s ee re ey wpe oe eee cp eer ee, v ats te ve over pee ot omy my Pn ae ee have in mind, for example, that the third applicant might undertake to deal with the rights under clause 4 by way of security in such a way as required by the first respondent, or it might simply undertake to execute any document by way of security reasonably required by the first respondent, in respect of its rights under clause 4. I have reached this conclusion with some hesitation, in view of the evidence as to the Law Society suit, which is rather troubling. It is peripheral ina sense, but should properly influence the exercise of my discretion, and it may be that further investigation of that matter is necessary, fairly urgently. I have also taken into account the fact that, on the undisputed facts, it seems that the first respondent is amply secured. Although it is no doubt inconvenient for the first respondent, and somewhat untidy, the proposal that security be given in respect of the third applicant's rights under clause 4 goes close enough to bridging the gap between the first respondent's being in such a position as Spender J. envisaged and its actual position, to justify my varying the order. What I propose todo is to adjourn the matter briefly and perhaps counsel or solicitors could discuss the precise form of order. I am treating the $30,000 as in effect discharged, and = eye ee woe a arene yernn 7 rN the respondents may have such security as they indicate they desire with respect to the rights under clause 4. AA KKK AK K In this matter I have this morning indicated the view I have, speaking generally, and counsel endeavoured to reach agreement on the form of order, without success. The order I propose to make, subject to any further submissions, is as follows:- That on undertakings being given as hereinafter mentioned, the order made by the Honourable Mr. Justice Spender on the 26th day of June 1987 be varied by deleting order number 2 and replacing 1t by the following: "That the injunction so granted continue until further order." The undertakings mentioned are as follows: (1) That within six weeks of the 26th day of June 1987 the sum of $300,000 be lodged in the Federal Court of Australia, Brisbane registry, or security to that amount be provided to the satisfaction of the Registrar. (2) That the applicants will use their best endeavours to obtain without delay a transfer of the land described as lot 508 on deposited plan 251298 contained in New South Wales certificate of title volume 13054, folio 35, and that the . oo + lhe . we third applicant will give to the first respondent such security in relation to its interest in the said land as may reasonably be required by the first respondent. (3) The applicants will further cause the third applicant to give the first respondent, whether or not sucha transfer as hereinbefore mentioned is obtained, such security as the first respondent may reasonably require in respect of the third applicant's interests in the benefit of the terms of settlement of Action no. 4403 of 1979 in the Equity Division in the Supreme Court of New South Wales, being exhibit "D" to the affidavit of the first applicant filed herein on 2 July 1987. It is further ordered that in the event of any difference arising with respect to the form of security hereinbefore mentioned, the parties may have liberty to apply. It 1s further ordered that the costs of and incidental to today's proceedings be paid by the applicants in any event. That is, whatever the outcome of the principal proceedings, on a general order for costs being made, the respondents are to have their costs of today's proceedings taxed and paid by the applicants. . I give leave to amend the statement of claim generally, without prejudice to the right of the respondents to attack the amended version. ms rs a ~s I direct that an amended statement of claim be filed and served on or before Friday, 10 July 1987, and I reserve all questions of costs arising in relation to that. 5 The matter will come on for directions on 14 July, as previously ordered by Spender J. i certify that this and the 5 preceding pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Pincus Ahr] Associate Dated 3 July 1987 Oe et a ee + rae aes