C A T C H W O R D S PRACTICE AND PROCEDURE - Adjournment - discretion of trial judge - role of appellate court. Adam P. Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 House v The King 55 CLR 499 Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137 Campbell Discount Company Limited v Bridge [1962] AC 600 No: SG 82 of 1994 EQUUS INVESTMENT SERVICES PTY LTD, PR MCKAY INVESTMENTS PTY LTD, EQUUS MARKETING SERVICES PTY LTD and JULIA RUTH MCKAY Appellants - and - PEGASUS LEASING LIMITED & ORS Respondent No: SG83 of 1994 EQUUS INVESTMENT SERVICES PTY LTD, PR MCKAY INVESTMENTS PTY LTD, PEGGY RUTH MCKAY, JULIA RUTH MCKAY, DAVID GOULD HARVEY and EQUUS MARKETING SERVICES PTY LTD Appellants - and - PEGASUS LEASING LIMITED Respondent BURCHETT, O'LOUGHLIN & NICHOLSON JJ. ADELAIDE 11 MAY 1995 IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) ) GENERAL DIVISION ) No: SG 82 of 1994 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA B E T W E E N: EQUUS INVESTMENT SERVICES PTY LTD, PR MCKAY INVESTMENTS PTY LTD, EQUUS MARKETING SERVICES PTY LTD and JULIA RUTH MCKAY Appellants - and - PEGASUS LEASING LIMITED & ORS Respondent No: SG83 of 1994 EQUUS INVESTMENT SERVICES PTY LTD, PR MCKAY INVESTMENTS PTY LTD, PEGGY RUTH MCKAY, JULIA RUTH MCKAY, DAVID GOULD HARVEY and EQUUS MARKETING SERVICES PTY LTD Appellants - and - PEGASUS LEASING LIMITED Respondent MINUTES OF ORDER CORAM : BURCHETT, O'LOUGHLIN AND NICHOLSON JJ. PLACE : ADELAIDE DATE : 11 MAY 1995 THE COURT ORDERS THAT: 1. Each of the appeals be dismissed with costs. 2. Unless an application for an order to the contrary is filed and served within fourteen days, the amount paid into court as security and any interest that has accrued on that sum may be paid out to the respondents in part satisfaction of the verdict. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) ) GENERAL DIVISION ) No: SG 82 of 1994 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA B E T W E E N: EQUUS INVESTMENT SERVICES PTY LTD, PR MCKAY INVESTMENTS PTY LTD, EQUUS MARKETING SERVICES PTY LTD and JULIA RUTH MCKAY Appellants - and - PEGASUS LEASING LIMITED & ORS Respondent No: SG83 of 1994 EQUUS INVESTMENT SERVICES PTY LTD, PR MCKAY INVESTMENTS PTY LTD, PEGGY RUTH MCKAY, JULIA RUTH MCKAY, DAVID GOULD HARVEY and EQUUS MARKETING SERVICES PTY LTD Appellants - and - PEGASUS LEASING LIMITED Respondent CORAM : BURCHETT, O'LOUGHLIN AND NICHOLSON JJ. PLACE : ADELAIDE DATE : 11 MAY 1995 REASONS FOR JUDGMENT O'LOUGHLIN J. (Delivering the first judgment at the request of the presiding Judge): On 26 October 1994, Pegasus Leasing Limited, which I shall call Pegasus for the purposes of convenience, obtained judgment by default in this court in the sum of $748,382.89 against the present appellants, Equus Investment Services Pty Limited, P.R. McKay Investments Pty Limited, Julia Ruth McKay, Peggy Ruth McKay, David Gould Harvey and Equus Marketing Services Pty Limited. The judgment debt was inclusive of interest to the date of judgment. Claims and counter-claims that had been made by the judgment debtors, that is the present appellants, were dismissed and they were ordered to pay all costs in respect of all proceedings. The appellants have come before this court alleging that the learned trial judge denied them "the opportunity to be properly heard or represented in breach of natural justice." Elsewhere in their grounds of appeal, the judgment debtors had alleged that the learned trial judge erred in law "in finding that he could enter judgment against the appellants when the appellants were not represented at trial and had had no opportunity to present their defence to the trial judge." A proper assessment of the grounds of appeal requires an analysis, not only of the events that occurred on the day upon which judgment was entered but also of the events that occurred in the preceding weeks. Before embarking on that exercise, however, it is desirable to set out in summary form the history of these proceedings. In October 1990, Pegasus instituted proceedings in the Supreme Court of South Australia in which it named the present appellants together with one Michael Alfred Channell as defendants. Mr Channell was not served with the Supreme Court proceedings. There was information in the papers suggesting that he was declared bankrupt. In any event, he has played no further part in the matter. In its amended statement of claim in the Supreme Court, Pegasus alleged that it had entered into certain contractual arrangements with Equus Investment and McKay Investments and that the obligations of those two last-mentioned parties had been guaranteed by the remaining appellants and Mr Channell. It appears that in 1989, a scheme which came to be known as the Austral-Eire Thoroughbred Investment Parcel, or sometimes called the Austral-Eire TIP, was established. Under the scheme, the proposal called for Pegasus to lease and to finance the leasing of interests in thoroughbred stock in breeding and in trading ventures. The venture included mares, their progeny and breeding interests in stallions. According to the pleadings, Equus Investment and McKay Investments acquired, between them, three one-hundredth shares in this venture from Pegasus. In order to effect the acquisition of their leasehold interests, Equus Investment and McKay Investments borrowed funds from Pegasus. Thus there were prima facie obligations on Equus Investment and McKay Investments, first to pay rental payments to Pegasus, next to repay borrowed moneys and finally to pay interest on borrowed moneys. In addition to those commitments, the various contractual arrangements contained provisions for Equus Investment and McKay Investments to pay additional interest in the event of them defaulting in the due payment of rental payments or loan repayments. In the Supreme Court proceedings, Pegasus alleged default on the part of both Equus Investment and McKay Investments under the leasing agreements and under the loan agreements. It claimed $207,310.62 pursuant to the leases, $203,083.32 pursuant to the loan agreements plus interest on both sums at the rate of 25 per cent per annum and costs. The appellants, as defendants in the Supreme Court proceedings, filed a defence denying liability and counter-claiming, seeking orders of rescission of all agreements, together with damages for breach of contract, breach of fiduciary duty, breach of the provisions of the Trade Practices Act 1974 (Cth) and for other relief. The solicitors who were then acting for the defendants in the Supreme Court proceedings were Fisher Jeffries. The significance of their role will become apparent shortly. On 29 June 1992, separate proceedings were instituted in the South Australian Registry of this court in which 30 or so different parties were named as applicants. Equus Investment and McKay Investments were two of those applicants. The respondents were Pegasus Leasing Limited and various other companies which, it was alleged, had commercial associations with that company. Even though there were several respondents, it will be convenient to use the abbreviation Pegasus to encapsulate all of them. In the first paragraph of the statement of claim, which extended over 122 pages, it was alleged that each of the applicants was a participant in the thoroughbred investment parcel, that is, the Austral-Eire TIP. To summarise the contents of a statement of claim of such length and complexity is not an easy task. At this stage it is, however, sufficient to state that, for a variety of reasons and on a variety of grounds, claims were made that the applicants should be relieved of any responsibilities at law which might otherwise be visited upon them by virtue of their having participated in the Austral-Eire TIP. The solicitors responsible for the preparation and filing of that statement of claim were Fisher Jeffries. On 27 November 1992, the Supreme Court proceedings were cross-vested to this court upon the application of the present appellants. The Supreme Court file reveals that Fisher Jeffries were still acting as solicitors for the appellants and were the solicitors involved in making the application for the cross-vesting order. As a result of amendments that were made to the statement of claim that had been filed in this court, at the time of the making of which Fisher Jeffries continued to act as solicitors for the applicants, certain allegations were made against various persons including Equus Investment, Equus Marketing and Julia McKay who were said to have acted as agents for Pegasus. As a consequence of these allegations, Pegasus was given leave in this court on 13 August 1993 to file a cross-claim against Equus Investment, Equus Marketing and Julia McKay. In paragraph 6 of that cross-claim, so far as it is relevant, there was an allegation that those two companies and Julia McKay were acting as the agents of Pegasus in respect of the sale of interests in the Austral-Eire TIP and upon that premise, even though Pegasus denied such agency, it proceeded to make claims of and by way of indemnity or contribution against Equus Investment, Equus Marketing and Julia McKay. It was also alleged in the cross-claim that Equus Investment, Equus Marketing and Julia McKay were: "The author and publisher of the brochure, the interim report and the May 1990 report..." they being documents having a material degree of importance with respect to the actions of parties who had made investments in the Austral-Eire TIP. The cross-claim alleged that the three cross-respondents that I have named were not acting as agents of Pegasus, but that if they were and it was found that they did make representations on behalf of Pegasus, whether by publication of the brochure, the interim report and/or the May 1990 report or otherwise, they owed a duty to Pegasus to take reasonable care not to subject Pegasus to liability for misrepresentation or otherwise. The contents of those pleadings established the untenable position of Fisher Jeffries. They had pleaded that one of their clients, the applicant Equus Investment, together with an associated company and an associated person, had acted as an agent for Pegasus, and although that agency had been denied, it had nevertheless resulted in a cross-claim being instituted against those three parties. There followed a change of solicitors. The defence of Equus Investment, Equus Marketing and Julia McKay to the cross-claim was filed by a firm of solicitors, Nyland Haines, on 13 December 1993. Earlier, at a directions hearing on 29 November 1993, at which Mr Nunn of Nyland Haines is recorded as being present, both sets of proceedings were listed for trial in this court. The tentative date was Monday 19 September 1994, and the parties then estimated that the likely duration of the trial was three months. It is to be emphasised that upwards of 10 months' notice of the trial date had been given to the parties. Thereafter there were regular directions hearings in February, March, April and June, and on each occasion Equus Investment, Equus Marketing and Julia McKay were represented by Nyland Haines. On the last mentioned occasion, Mr Nunn of that firm indicated to the court that his client still required further time within which to provide further and better particulars of their proceedings and to provide sworn lists of their documents. It was also on this last-mentioned occasion that the court was informed that a number of the applicants represented by Fisher Jeffries were in the process of settling their claims with Pegasus. That advice did not of course extend to Equus Investment and it is not suggested that it extended to McKay Investments. Further regular direction hearings continued to be held and on one such hearing on 23 August 1994 it was noted that with respect to the cross‑vested Supreme Court proceedings, Fisher Jeffries still appeared on file as the solicitors for McKay Investments, Peggy Ruth McKay and David Harvey. On that occasion, Mr Nunn confirmed that he had received instructions to act for McKay Investments and Peggy McKay, but that he had not yet received instructions from Mr Harvey. The next directions hearing was 5 September 1994, when Mr Nunn indicated that he would be filing notices that his firm was acting on behalf of McKay Investments, Peggy McKay and now also David Harvey. On that date the court ordered Pegasus to deliver a fresh request for particulars of the amended statement of claim to Equus Investment and McKay Investments. That request was to be served within four days and answered within a further seven working days after the receipt of the request. The court further ordered that within 11 working days Equus Investment and McKay Investments were to give particulars of the quantum of each of their claims to Pegasus. Equus Investment and McKay Investments failed to comply with the orders of the court that had been made on 5 September 1994. As a consequence, Pegasus moved for orders including an order that judgment be entered in its favour in respect of the claims of Equus Investment and McKay Investments in the Federal Court proceedings. By notice of motion dated 23 September 1994 Nyland Haines moved the court on behalf of Equus Investment and McKay Investments for an order that the hearing of the proceedings now listed for trial on 26 September 1994 be vacated. In support of the order so sought Mr Nunn deposed that: "Complete files and records in relation to my clients' matters have been retained by Fisher Jeffries pursuant to a lien to protect their costs." He added that his clients were not: "presently able to properly instruct me to conduct the trial on their behalf" and that his clients were "attempting to negotiate a final resolution". He concluded by saying that his clients: "have not yet been afforded the full opportunity to explore all prospects of settlement". It must be said that such an affidavit, coming as it did three days before the date fixed for trial, and after Mr Nunn has been acting for these parties for a period in excess of 10 months, raises more questions than it answers. Why had there been no attempts to negotiate a transfer of papers with Fisher Jeffries? If there had been any such attempt and it had been unsuccessful why was that not reported in the affidavit? Why were his clients unable to instruct him properly with respect to the conduct of the trial after he had been acting for a period of 10 months or so? Who had not afforded the full opportunity to his clients to explore the prospects of settlement? Another notice of motion was filed in court seeking an adjournment for a six week period. The moving parties on that notice of motion were the six present appellants. The notice of motion was supported by an affidavit of Julia McKay who relevantly said at page 4 that: "Mr Nunn has encountered severe financial difficulties with his legal practice which have crystallised within the last few days." She continued in her affidavit saying that Mr Nunn was unable to act at present but: "will be in a position to act for me again once he places his affairs in order within the next few weeks". At this point it is necessary to retrace steps back to 16 September 1994 and to summarise the events at directions hearings commencing with that date so that the notices of motion, to which reference has just been made, seeking vacation of the trial date, can be better understood. On 16 September Mr Nunn appeared on behalf of the McKay interests, first suggesting that the matter be referred by order of the court for mediation. That application was opposed by counsel for Pegasus and no order was made. Mr Nunn then foreshadowed the possibility that he would be seeking an adjournment of the trial date. As to this, his Honour, at appeal book 960, responded, not by rejecting out of hand any suggestion of an adjournment, but by addressing in the form of comment the question whether costs and security would be appropriate matters to discuss if such an application for an adjournment were to be made. Mr Nunn claimed in the directions hearing that unspecified concerns about the settlements being made by other co-applicants were affecting his clients. He nevertheless acknowledged to his Honour that his clients had had sufficient time for the purposes of the preparation of their proceedings. In my opinion, the remarks of his Honour at page 961 of the appeal book show a reasoned and balanced approach to the competing interests of both parties - a proposition which at page 962 of the appeal book Mr Nunn is recorded as accepting. He said: "I appreciate the issues about costs and security". Nevertheless Mr Nunn warned that he did not at that stage consider that he would be ready for the conduct of the trial to commence on 26 September. As to this, his Honour warned that the case was not likely to be adjourned, but he did not have a closed mind on the subject as is indicated by his remarks at page 963 of the appeal book where he referred to the possibility of "a real issue" saying that if a real issue arose, well then, indeed, the trial date might have to be vacated. On the one hand, his Honour was strong and firm. He suggested that some of the remarks that had been made during the course of the directions hearing pointed to the McKay interests being "in diabolical financial trouble". He also pointed to the earlier acknowledged failures of the McKay interests to comply with orders of the court. However, the directions hearing concluded without there being any formal application for an adjournment of the trial date. The next directions hearing to which reference need be made is 26 September, the intended trial date. Mr Nunn appeared and informed the court of personal difficulties that had occurred over the weekend. He consulted with his Honour and opposing counsel in chambers, and it would seem from the record that the nature of his concerns was such that, although understandable, on the one hand, they nevertheless had nothing to do with the state of progress, or the lack of the state of progress, of the McKay interests and the preparation of their case for trial. His Honour, according to the transcript of proceedings at the directions hearing on 26 September, expressed his concern and described as extraordinary the fact that the McKay interests were not personally present in court. He asked Mr Nunn about this, but Mr Nunn could not give any explanation for their absence. Mr Lander QC, who had announced his appearance for Pegasus, informed the court that his instructions were to proceed and that he was ready for trial. Even so, he asked for a listing later in the week, merely asking that his Honour proceed on that day to determine finally the question of an adjournment of the trial date. Nevertheless, despite Mr Lander's urgings his Honour declined to do so, and intimated that he would stand the matter over for a period of three days until Thursday 29 September. In doing this, his Honour delivered ex tempore remarks which are contained at pages 978 to 981 of the appeal book. Those remarks, in my opinion, are objectively fair and accurate in summarising the history of all relevant matters; they contain appropriate references to the McKays' knowledge of the existence of the trial date and to the period of the time of that knowledge. His Honour's remarks, expressing concern about the way in which the McKay interests had prosecuted their proceedings, were wholly justifiable. Three days later, on 29 September, there was a further directions hearing when a Mr Brooke appeared and announced that he was representing Mr Nunn and on Mr Nunn's behalf was seeking leave to withdraw from the proceedings. That leave was granted. Once again the McKay interests were not present, but there was before the court the notice of motion from the McKay group seeking the 6 week adjournment, that being the notice of motion to which earlier reference has been made. Mr Lander said that his instructions were to apply for summary dismissal of the Federal Court proceedings that had been instituted against Pegasus and that he was also instructed to apply to proceed on the cross-vested proceedings. His Honour once more expressed concern at the absence of the McKay interests and ultimately declined Mr Lander's application to proceed, volunteering instead that efforts should be made by facsimile and telephone to contact Ms Julia McKay. Indeed, those efforts were successful and the hearing proceeded in court but with Ms Julia McKay participating through a telephone connection. In my opinion, that alone emphasises his Honour's concern about the matter, and his determination to give the McKay interests every opportunity to advance their cause. But having said that, once again it is only proper to emphasise his Honour's firmness. He was strong in reminding Ms McKay that the earlier orders of 5 September had not been complied with. He adverted to Mr Lander's submissions and generally he made it clear to Ms McKay that there were strong reasons for believing that if there was no further advancement in the situation, orders of the nature sought by Mr Lander might well be made. His Honour's and Julia McKay's discourse entered into a crucial stage during the course of that telephone contact, when his Honour said, as I have just mentioned, that both applications were likely to be successful, but he added the rider that if Ms McKay could meet the issues of costs and security, then her chances of obtaining the adjournment which she had requested would be improved. I refer to the transcript at appeal book p1005. It is also pertinent to emphasise that during that discourse the figure of costs of $30,000 was mentioned, as was the figure of security of $500,000. There were further directions hearings on 7 October, 10 October and finally on 26 October. On 6 October the McKay interests retained fresh solicitors, Minter, Ellison, Baker, O'Loughlin. Mr Strawbridge of that firm attended before his Honour on each of the three dates to which I have just referred. In some respects, it is permissible to kaleidoscope much of what happened over those three directions hearings. Julia McKay deposited, first $30,000 on account of costs, and later a further sum of $10,000 in respect of an increased assessment of costs, and those deposits were made in court in accordance with arrangements earlier made by her. Despite the urgency of the situation and the many clear warnings from his Honour, she failed to supply the security, which it must be emphasised she had promised, and which she had said could be forthcoming. On the most generous view, she had known and agreed since 26 September, that security in the sum of $500,000 was required. In her affidavit of 7 October 1994 at appeal book 255, she deposed that she owned the whole of the issued capital in a company which owned unencumbered land worth $3.5‑million. One can only wonder why such a valuable asset was not offered as security, the more so when she said in the same affidavit that the only way in which she was able to obtain a bank guarantee in the sum of $500,000 from her banker was by depositing cash of $500,000 with her banker. On 10 October his Honour had stressed that failure to produce security on 26 October would, by virtue of the reasons submitted by the respondents through Mr Lander, lead to the hearing continuing on that date. But notwithstanding the strictures of this warning the security was not offered, nor was there any evidence, affidavit or otherwise, offered to afford an explanation to his Honour or to support any alternative form of security. It should be emphasised that nothing that has just been said points to his Honour having adopted a concluded and final view. He remained at all times amenable to any reasonable proposition that might have been forthcoming. In my assessment of the events that have been summarised in the course of these reasons, there is no error of law, principle or fact disclosed in his Honour's reasoning: Adam P. Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170. Nor was the exercise of his discretion so unreasonable or unwarranted as to justify interference upon the principles laid down in House v The King, 55 CLR 499. An adjournment is a matter of discretion; it is a matter of practice and procedure. The so-called "catastrophic consequence" to the McKays was caused, not by his Honour's refusal to grant the adjournment, but by the decision of the McKay interests not to be present on 26 October for the continuance of the case and not to prosecute their interests. The subject of adjournment has been referred to by a full court of this court in the matter of Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137 at 146. There the court said: "The decision whether or not to adjourn the hearing of the petition was within the discretion of the primary judge. It is well established that an appellant court will rarely interfere with the trial judge's exercise of discretion upon an application for adjournment. However, the refusal to grant an adjournment may in some cases prevent the party seeking it from presenting his case or defence and in some circumstances this may result in injustice of such kind or magnitude as to warrant interference on appeal. In Maxwell v Keun [1928] 1 KB 645 Atkin LJ said (at 653): 'I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question of an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties then the court has power to review such an order and it is to my mind, its duty to do so.' In Block v Block (1981) 37 ALR 55; 55 ALJR 701 Wilson J at 703, with whose judgment Gibbs CJ, Murphy and Aicken JJ agreed, described this passage from the judgment of Atkin LJ as stating 'the rule in terms which have won general acceptance'." I respectfully adopt the quoted passage with the observation that the refusal by his Honour on 26 October to grant the adjournment was not the cause of the difficulties now faced by the McKay interests. They could, if they had chosen to do so, have accepted, albeit with disgruntlement, the decision of his Honour and stayed in court, either personally or by their representatives. But they chose not to do so. There were other grounds of appeal, some of which were abandoned, others of which were not referred to during the course of submissions, but one in particular to which Mr Strawbridge made reference was the question of penalties and penalty interest, alleging that there was a duty of a trial judge, on an ex parte application, to question an applicant for the purpose of determining whether its claim included an element of penalty. In support of this proposition, Mr Strawbridge made reference to the speech of Lord Radcliffe in Campbell Discount Company Limited v Bridge, [1962] AC 600 at 622 where his Lordship said: "The refusal to sanction legal proceedings for penalties is in fact a rule of the court's own, produced and maintained for purposes of public policy..." In my opinion the quoted passage merely identifies the historical source or the genesis of the court's attitude to the subject of penalties, and is not to be taken as a suggestion that there is cast upon a trial judge a responsibility akin to that of counsel for the defence. In my opinion, for the reasons which I have stated, this appeal must be dismissed. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice O'Loughlin. Associate Dated: Counsel for the Appellants : Mr N L Strawbridge and Ms R J Batt Solicitors for the Appellants : Minter Ellison Baker O'Loughlin Counsel for the Respondents : Mr B R Martin QC and Mr G L Muecke Solicitors for the Respondents: Kelly & Co Hearing Date : 11 May 1995 IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) ) GENERAL DIVISION ) No: SG 82 of 1994 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA B E T W E E N: EQUUS INVESTMENT SERVICES PTY LTD, PR MCKAY INVESTMENTS PTY LTD, EQUUS MARKETING SERVICES PTY LTD and JULIA RUTH MCKAY Appellants - and - PEGASUS LEASING LIMITED & ORS Respondent No: SG83 of 1994 EQUUS INVESTMENT SERVICES PTY LTD, PR MCKAY INVESTMENTS PTY LTD, PEGGY RUTH MCKAY, JULIA RUTH MCKAY, DAVID GOULD HARVEY and EQUUS MARKETING SERVICES PTY LTD Appellants - and - PEGASUS LEASING LIMITED Respondent CORAM : BURCHETT, O'LOUGHLIN AND NICHOLSON JJ. PLACE : ADELAIDE DATE : 11 MAY 1995 REASONS FOR JUDGMENT BURCHETT J: I agree, and the only thing I will add is that in my opinion, if the appellants had chosen to do so, they could, within the time available to them after it had become apparent that the final of the several dates for hearing that had been fixed was to stand, have prepared sufficiently to proceed at that hearing. I certify that this and the preceding page is a true copy of the Reasons for Judgment of Justice Burchett. Associate Dated: IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) ) GENERAL DIVISION ) No: SG 82 of 1994 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA B E T W E E N: EQUUS INVESTMENT SERVICES PTY LTD, PR MCKAY INVESTMENTS PTY LTD, EQUUS MARKETING SERVICES PTY LTD and JULIA RUTH MCKAY Appellants - and - PEGASUS LEASING LIMITED & ORS Respondent No: SG83 of 1994 EQUUS INVESTMENT SERVICES PTY LTD, PR MCKAY INVESTMENTS PTY LTD, PEGGY RUTH MCKAY, JULIA RUTH MCKAY, DAVID GOULD HARVEY and EQUUS MARKETING SERVICES PTY LTD Appellants - and - PEGASUS LEASING LIMITED Respondent CORAM : BURCHETT, O'LOUGHLIN AND NICHOLSON JJ. PLACE : ADELAIDE DATE : 11 MAY 1995 REASONS FOR JUDGMENT NICHOLSON J: I am also of the same opinion and I express my agreement with the reasons which have been stated by O'Loughlin J. I certify that this and the preceding page is a true copy of the Reasons for Judgment of Justice Nicholson. Associate Dated: