Re Hugh Parsons v Ad Astra Properties Pty Ltd; Bernard Breslin Spence Robertson and Grant Robertson [1984] FCA 129; 4 FCR 79 Trade Practices - High Court and Federal Judiciary (14 May 1984)

FEDERAL COURT OF AUSTRALIA

Re: HUGH PARSONS
And: AD ASTRA PROPERTIES PTY. LTD.; BERNARD BRESLIN SPENCE ROBERTSON and GRANT
ROBERTSON
No. VG116 of 1984
(1984) ATPR para 40 - 454 / [1984] FCA 129; 4 FCR 79 Trade Practices - High Court and Federal
Judiciary

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)

CATCHWORDS

Trade Practices - Application for Interlocutory Relief - Stay of Proceedings in County Court of Victoria - Removal of Proceedings from County Court to Federal Court - Power to Grant Orders - Discretion to Grant Orders.

Trade Practices Act 1974 - ss. 52(1), 53A

High Court and Federal Judiciary - Federal Court of Australia - Jurisdiction - Matter associated with matter within jurisdiction - Non-federal issue - Discretion to exercise jurisdiction in respect of non-federal issue - Proceedings in County Court (Vic.) for recovery of rent - Application before Federal Court of Australia for relief from lease under Trade Practices Act 1974 (Cth) - Discretion to grant interlocutory restraint of County Court proceedings - County Court Act 1958 (Vic.) - Trade Practices Act 1974 (Cth). The applicant sought relief from the terms of a lease under the Trade Practices Act 1974 (Cth), s. 86 alleging contravention of ss 52 and 53A. In those proceedings he sought to restrain the continuation of an action in the County Court of Victoria for the recovery of arrears of rent under the lease.

Held: (1) The court had a discretionary power to prevent the continuation of the County Court action if it was in the best interests of the parties.

Bargal Pty Ltd v. Force [1983] HCA 36; (1983) 57 ALJR 731 at 744, applied.

(2) It was not in the best interests of the parties to prevent the continuation of those proceedings because:

(a) considerable costs had been incurred in those proceedings; and

(b) assuming the applicant could show an entitlement to relief under the Trade Practices Act 1974 (Cth), s. 86 but not sufficient to warrant rectification of the lease pursuant to the County Court Act 1958 (Vic.), s. 42(d) the court could permit the applicant to make a further application to the Federal Court of Australia before entering judgment.

HEARING

1984, May 11, 14. 14:5:1984
INTERLOCUTORY APPLICATION.

Application for an interlocutory order to restrain the first respondent from prosecuting an action in the County Court of Victoria until the hearing of proceedings under the Trade Practices Act 1974 (Cth), s. 86.

D.A. Perkins, for the applicant.

Dr. P. Buchanan, for the respondent.

Solicitor for the applicant: Brendan, Stewart & Co., for their city agents Clements, Hutchins & Co.

Solicitors for the respondent: Abbott, Stillman & Wilson.
B.A.G.

ORDER

Orders accordingly.

DECISION

Application for an order restraining the first respondent from prosecuting an action pending in the County Court of Victoria until the hearing and determination of this proceeding.

2. By a summons issued on 13 December 1982 the first respondent claimed against the applicant moneys alleged to be due for rent and under other covenants of a lease of part of a building by the first respondent to the applicant for a term of 7 years commencing on 1 July 1981. On 8 April 1983 the applicant was granted leave to defend the action. The action is fixed for trial next Thursday. By application filed 1 May 1984 the applicant claimed in this proceeding, in respect of conduct of the second and third respondents on behalf of the first respondent which is alleged to have been done in contravention of ss. 52(1) and 53A of the Trade Practices Act 1974, damages and an order varying the lease. The variation claimed is of a clause which provides for annual adjustment of the amount of rent in accordance with variation in a price index published by the Australian Bureau of Statistics. The clause is so drawn that the variation is calculated by reference to the amount payable for rent in the month immediately preceding the commencement of the year in respect of which the variation is to apply. In respect of the first year of the term the rent was $5,220, payable not by equal monthly instalments of one twelfth of that sum, but, to quote the relevant provisions of the lease, "in the following manner:

nil for the period 1st July 1981 to 19th October 1981;

(b) $226.96 for the period 20th October 1981 to
31st October 1981; and

(c) $624.13 per calendar month for the balance of
the first year of the term.

The rental thereafter shall be revised as in Item
10 of this Schedule provided.

The first rental payment shall be made on or before
the 20th October 1981 and thereafter on the 1st day
of each month during the term and any extension
thereof."

"Item 10" is the clause prescribing the method by which variation of the annual rent is to be calculated. The applicant contends, and the respondents deny, that he was misled by conduct of the second and third respondents into the belief that the lease he was executing made provision for ascertainment of the rent payable in respect of the year commencing 1 July 1982 by reference, not to the $624.13 payable on 1 June 1982, but to one twelfth of $5,220, namely $418.33. The respondents contend, but the applicant denies, that express oral agreement on the point was reached before the lease was sent to the applicant for execution and that the executed lease gives faithful expression to that oral agreement.

3. The circumstances which the allegations of the applicant disclose, no less than the circumstances which the allegations of the second and third respondents disclose, hardly admit of the supposition that it may hereafter be found that there had been a contravention of s.52(1) and s.53A, whereby the applicant was induced to execute the lease, but that there had not been such "a degree of sharp practice" on the part of a director of the first respondent as would result in rectification of the lease in exercise of the equitable jurisdiction conferred by s.42(d) of the County Court Act 1958, were that jurisdiction invoked: Johnstone v. Commerce Consolidated Pty. Ltd. (1976) VR 463, 724. If the jurisdiction of that Court under s.42(d) were exceeded "in point of ammount", s.63 of the County Court Act 1958 could be invoked. It does not appear that the jurisdiction of the County Court to rectify the lease has been invoked by the applicant. The applicant has for more than a year failed to seek any curial relief in respect of the mistaken, as he alleges it was, execution by him of the lease. But the powers of the County Court are adequate to enable justice to be done, even to so dilatory a litigant as the applicant : see ss. 45, 49 and 78 of the County Court Act 1958 and the County Court Rules. Costs estimated by the first respondent's solicitor at $1,700 have been incurred by the first respondent in the County Court action.

4. "The first and paramount consideration in the exercise of" the discretionary power conferred on me to prevent the first respondent from proceeding to trial of the County Court action until further order "is to do what is best in the interests of the litigants" : Bargal Pty. Ltd. v. Force [1983] HCA 36; (1983) 57 ALJR 731 at 744. I think that the application should be refused. In the event, which I think to be very unlikely, that the learned County Court judge who tries the action finds facts which may afford the applicant an entitlement to relief which can be granted in exercise of the jurisdiction conferred by s.86 of the Trade Practices Act 1974, but is unable to give in the exercise of the jurisdiction conferred on him relief which does justice between the parties, I have no reason to doubt that he would afford the applicant an opportunity to make a further application to this court before pronouncing judgment in the action. If I accede to the present application substantial costs already incurred in the County Court action will be thrown away, even if the respondents, two of whom are not parties to that action, were willing to consent to the use in this court's proceeding of documents filed in that action.

5. The orders claimed in the originating application by way of interlocutory relief are:

"1. An order for a stay of the proceedings of the
County Court until the trial of this action.

2. An order that proceedings in the County Court
be removed into this Honourable Court for
hearing and determination.

3. An order that a date for hearing this
application be fixed forthwith.

4. An order that this application proceed
without further pleadings and without further
interlocutory steps."

I shall treat the claim numbered 1 as a claim for interlocutory restraint of the parties to the County Court action from proceeding in the action. There is of course no power in this court to direct to the County Court or to any of its judges or officers any order of the kind claimed in paragraph 1 or 2.

6. It is ordered that each of the applicant's claims for interlocutory relief specified in the application originating this proceeding be dismissed and that the applicant pay the respondents' costs of the application for that interlocutory relief and that the summons for directions be adjourned to a date to be fixed by any party upon written notice to each other party and that no defence be filed or served until further order.