Re Warren Halloran v Henry F Halloran & Co Pty Limited and Ors [1984] FCA 369; 5 FCR 571 (3 December 1984)

FEDERAL COURT OF AUSTRALIA

Re: WARREN HALLORAN
And: HENRY F. HALLORAN & CO. PTY LIMITED AND ORS
No. G360 of 1984
Trade Practices
[1984] FCA 369; 5 FCR 571

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)

CATCHWORDS

Trade Practices - misleading or deceptive conduct - representation of sponsorship or affiliation in connection with sale of land - applicant's father founder of real estate development business in 1890s - father's firm no longer in existence - father dead for over 30 years - purchase by respondents in 1984 of shares in companies incorporated by father - reference in advertisement to advertiser as group of companies bearing father's name and of having been in business since 1906 - whether false or misleading - whether representation of sponsorship or affiliation which did not have.

Trade Practices Act 1974, ss. 52, 53A

Trade Practices - Advertisement in newspaper supplement of land sales - Representation that advertiser was "Henry F. Halloran & Co Group of Companies", an old, successful undertaking, in business at least since 1906 - Advertiser had merely purchased shares in other companies formerly controlled by founder - Whether misleading or deceptive conduct - Representation of affiliation which the group did not have - Trade Practices Act 1974 (Cth), ss 52, 53A(1)(a) - Business Names Act 1962 (NSW), ss 4(1), 5 - Companies Code (NSW), ss 253(1), 256. The applicant, the son of Henry F. Halloran who was a well known, successful and reputable real estate developer, surveyor, valuer and conveyancer from the 1890s until his death in 1953, applied for injunctive relief to restrain alleged breaches of s 52 and s 53A of the Trade Practices Act 1974 (the Act) by the respondent group of companies who had placed in a Sydney newspaper supplement an advertisement for the sale of land on the New South Wales coast by the "Henry F Halloran Group of Companies", representing, inter alia, that that group of companies had been developing land since 1906.

Held: (1) The advertisement was misleading and deceptive within s 52 of the Act in that it indicated to a reader a particular continuity and connection in the land development business for which there was no basis. The advertisement represented that the Henry F. Halloran & Co Group of Companies was a very old undertaking in business at least since 1906, still in business and continuing in the successful tradition of its founder, whereas in fact, although the founder, Henry F. Halloran had in the 1890s commenced a real estate business under his own name, by 1930 that business was being conducted by another of his companies, Realty Realizations Pty Ltd, a company presently controlled by the applicant, with the founder's business name, Henry F. Halloran & Co lapsing some time after 1953 and with Realty Realizations Pty Ltd from about 1960 onwards alone having the reputation in the land development business which the founder had commenced.

(2) The particular continuity and connection with the Henry F. Halloran name claimed by the advertisement could not be established by the respondents' adducing evidence that the real advertiser had purchased controlling interests in companies formerly owned by the founder, his family or Realty Realizations Pty Ltd and that the land advertised for sale was land acquired by the founder or in the period between 1930 and 1953 by Realty Realizations Pty Ltd.

(3) By holding out to the public that the developer was the Henry F. Halloran & Co Group of Companies, land developers founded almost 100 years ago, the developer had represented that it had an affiliation or sponsorship that it did not have and accordingly s 53A(1)(a) of the Act had also been contravened.

HEARING

Sydney, 1984, November 20, 21, 22, 23; December 3. 3:12:1984
APPLICATION

Application for injunctive relief to restrain alleged breaches of s 52 and s 53A of the Trade Practices Act 1974 (Cth).

S. Archer, for the applicant.

J. M. Ireland, for the respondents.
Cur adv vult

Solicitors for the applicant: Sly & Russell.

Solicitors for the respondents: Photios Slater & Co.
GFV

ORDER

Leave be given to the applicant to amend his application by:

(a) inserting after the words "Henry F. Halloran & Co.
Group" in para. 4(e) and para. 9(e) the words
"under either of those names"

(b) inserting after the words, "An order that each
of," in para. 8 the words "the twenty-first
respondent"

Orders be made in terms of paras. 1, 2, 4 (as amended). 5, 8 (as amended), 9

(as amended) and 10 of the application.

The respondents pay the applicant's costs of the application.

The exhibits other than Exhibit E be returned to the persons from whose custody they were produced on or before 1 February 1985, if in the meantime no appeal has been lodged. Exhibit E is not to be returned except upon the order of a Judge of this Court.

Orders accordingly

DECISION

This is an application for injunctive relief to restrain alleged breaches of ss. 52 and 53A of the Trade Practices Act 1974 ("the Act"). The application was precipitated by the appearance in two issues of a magazine, "The Good Weekend", a supplement to the Saturday edition of the Sydney Morning Herald, of an advertisement for the sale of land on the New South Wales coast. The advertisement appeared on 6 and 20 October 1984. It was spread over two facing pages of the magazine. At the top of each page was a photograph in colour of an area where the advertisers had land for sale, one at Coffs Harbour and the other at Port Stephens.

2. The advertisers were said to be "Henry F. Halloran & Co. Group of Companies". The text of the advertisement began with the words:

"Since 1906 our land developments have
proven to be outstanding investments'".

These words were printed in bold type. To the left of them was an artist's impression of Henry F. Halloran who was said to have lived between the years 1869 and 1953. Underneath his portrait was a replica of an old map of subdivision of part of the Sydney suburb of Seaforth. This extended to the bottom of the page.

3. The remainder of the text of the advertisement was in bold type, although less prominent than that used in the heading. The text in part said:

"Our Founder Henry F. Halloran made this
comment in 1920, some 14 years after one of
his first major land sales . . . the Sydney
suburb of Seaforth.
Today the Henry F. Halloran & Co Group
continues to uphold its reputation as a
leading land development company, offering
quality resort and residential land on the
North coast of New South Wales at very
attractive prices.
THE GREAT AUSTRALIAN DREAM
Henry F. Halloran was described as 'possibly
the most completely equipped person ever to
practise real estate in this State.' His
forsight and imagination created the estates
of Stanwell Park, Queanbeyan, Avoca,
Warriewood and Seaforth. Most of these
early developments are now prime residential
land in some of our most scenic resort
areas."

4. Under the heading "New Lots Now Available" was advertised land which the advertisers had for sale at Coffs Harbour, Port Stephens and Lake Macquarie. There then followed the words:

"For nearly 100 years our Estates have proven
to be a sound form of investment. Like the
purchasers of land at Seaforth in 1906 we
are just as confident of the investment
potential of todays' offering."

Ample finance was said to be available.

5. At the end of the advertisement was a coupon which readers could send in to obtain further information. It was intended to be addressed by them to Henry F. Halloran & Co. Group, P.O. Box 42, Edgecliff, 2027, N.S.W. A telephone number was also given. In very small print towards the end of the advertisement appeared the words:

"Marketed exclusively by Kim Clarke Marketing
Pty Ltd, 1 Taylor St, Darlinghurst, 2010."

6. The words "Henry F. Halloran & Co." appeared at the bottom of the left hand page of the advertisement in a box made to look like an old sign which might have been affixed to a door or entrance to an office. The words were printed in a scroll-like print giving the impression of a sign which had been first printed many years ago. Underneath the words "Henry F. Halloran & Co." in the box were in block type the words "Group of Companies".

7. The applicant is one of the sons of Henry F. Halloran who lived in Sydney from 1869 to 1953. Mr. Halloran confirmed that the portrait in the advertisement was a likeness of his father. He said that he was aware that his father qualified as a surveyor in 1890 and later became a certified local government engineer. He practised as a surveyor and as an engineer from some time in the 1890s until his death. He became entitled to practise as a conveyancer in about 1896 and carried on practice as such continually until his death.

8. Mr. Halloran said that his father began practising as a surveyor under the name Henry F. Halloran & Co. in about 1894 and his practices as an engineer and a conveyancer were carried on under this name. He used the name until his death in 1953. Thereafter Mr. Halloran maintained the registration of the name until in the late 1950s he allowed it to lapse.

9. Mr. Halloran said that his father had become involved with land development some time in the 1890s. He had in his possession subdivision plans bearing his father's name which dated back to about 1900. By that year he had extended his business activities to include those of an auctioneer, real estate agent and valuer. Appended to Mr. Halloran's affidavit is a facsimile of a letterhead apparently used by his father. It is headed Henry F. Halloran & Co. The firm is described as "Conveyancers-at-Law, Chartered Surveyors, Land Valuers, Civil & Local Government Engineers, Land Planners, etc."

10. Mr. Halloran said that his father, both in his own name and through a number of companies incorporated by him, came to hold large areas of land throughout New South Wales, particularly in the Queanbeyan, Port Stephens and Shoalhaven areas. He was responsible for opening up many areas throughout New South Wales and became well-known as a land developer. The first company which he incorporated was Warriewood Pty Limited which was formed on 16 March 1906. It owned a large area of land at Warriewood which it subsequently developed and sold as residential lots. The next company, Bungarribee Pty Limited, was incorporated on 18 April 1906. It is one of the respondents to this application.

11. Mr. Halloran confirmed that his father was responsible in or about 1906 for the development and sale of a large number of residential lots in the Seaforth area.

12. Between 1907 and 1931, so Mr. Halloran said, his father caused a further 22 companies to be incorporated, particulars of which are given in his affidavit. Those companies include the respondents, Avoca Pty Limited, Balgownie Pty Limited, Canberra Freeholds Pty Limited, Canberra Suburbs Pty Limited, Decentralisation Pty Limited, The Gates of Canberra Pty Limited, Homeville Heights Estate Pty Limited, Jerrabombera Pty Limited, Stanwell Pty Limited, The Stanwell Park Hotel Company Pty Limited, Tanilba Pty Limited, Tor Pty Limited, Wandandian Pty Limited and Wyee Pty Limited.

13. Broadly speaking the evidence establishes that each of those companies is now owned and controlled by the last named respondent, Mr. Lyons, or by persons or other companies associated with him in business. The other respondents are similarly connected with Mr. Lyons. The respondent, Kim Clarke Marketing Pty Limited, wrongly called Kimg Clarke Management Pty Limited in the application, is the company referred to in small type in the advertisement.

14. Mr. Halloran said that on 5 June 1930 his father caused to be incorporated Realty Realizations Pty Limited. There is in evidence a copy of a circular dated 7 July 1930 which was apparently circulated to clients of Henry F. Halloran & Co., whose name the circular bears. The name is part of a stamp in the top left hand corner of the circular which described Henry F. Halloran & Co. as auctioneers, conveyancers at law, licenced surveyors and sworn valuators. Amongst other things the circular said:

"The Real Estate Agency portion of our
business has as from the 1st instant (that
is 1 July 1930) been transferred to and will
in future be conducted by REALTY
REALIZATIONS LIMITED, a new Company formed
for that purpose. All sales and collections
will henceforth be made by the new Company
which will, however, continue to have the
benefit of Mr. Henry F. Halloran's
assistance and advice.

There will be no change in the professional
side of the business as Mr. Halloran will
continue his professional work as
Conveyancer-at-Law, Licensed Surveyor, Civil
Engineer, Town Planner, Valuator, &c. under
the same name of Henry F. Halloran & Co. and
will act in those capacities for the new
Company.

The new Company will occupy the same offices
and those members of the Staff who have been
carrying on the Real Estate Agency business
have become the employees of the new
Company.

Thus you may be sure that the traditions of
this well known business will be maintained,
together with its reputation for soundness
and fair dealing with the public during the
past 40 years."

The circular was signed Henry F. Halloran and Co.

15. Mr. Halloran confirmed that his father was retained by all companies as conveyancer, surveyor, engineer, valuer and town planner. A copy of minutes dated 2 October 1930 of a meeting of directors of one of the companies, Avoca Limited (as it then was), confirms that this was the case.

16. Mr. Halloran said that after 1930 his father continued to carry on his various professions and businesses under the name Henry F. Halloran & Co. He said that it was common for him to say that he was able to provide every professional service which a land developer required from acquiring the land, surveying it, developing it, and selling it.

17. Mr. Halloran said that he became involved in his father's business in the early 1940s and that after his father died in 1953 he assumed day to day control of the companies. There is some disagreement with that statement by a Mr. Hiscock but I do not think it necessary to attempt to arrive at any conclusions about such difference as there is in the evidence of the two witnesses. Mr. Halloran said that by 1982 the only persons with a substantial interest in the companies were his two sisters and himself. He said that they owned approximately a one third interest each. Mr. Hiscock also had a small interest.

18. Mr. Halloran said that approximately two years ago, that is in 1982, he and his two sisters decided to divide the group so that each would assume control of companies which held land. In this way what might be described as a partition of the property was achieved. Mr. Halloran himself was interested in taking land in the Shoalhaven area. His sisters took land elsewhere. Each took an approximately equal share, although Mr. Halloran's appears to have been slightly larger.

19. The transaction involved not only share transfers but the need to move lands from one or other of the companies so that the object of Mr. Halloran in having land in the Shoalhaven area only could be fulfilled. Thus it was that in many cases companies which had held land for years transferred that land and received in its place other land.

20. On 16 March 1984, the sisters either personally or through a company, which one of them controlled, agreed to sell to a company, Idotrack Pty Limited, their shares for a consideration of $6,045,161 upon terms and conditions set out in an agreement of that date. The agreement is a complex one and I do not find it necessary to refer to the detail of it. Idotrack Pty Limited is a company which is controlled by Mr. Lyons or by persons or companies associated with him in business. Mr. Halloran retained control of seven land holding companies and two operating companies, Realty Realisations Pty Limited, already mentioned, and Loralyn Pty Limited, which had been incorporated by Mr. Halloran senior on 17 December 1952.

21. Mr. Halloran said that on 25 May 1984, he learnt that a company under the name of the first respondent, Henry F. Halloran and Co. Pty Limited, had been incorporated. On that day he wrote to Mr. Lyons a letter which was as follows:

"It has today come to my attention that a
company styled Henry F. Halloran & Co. Pty.
Limited has been registered at the Corporate
Affairs Commission.

I can only assume that you are in some way
responsible for this and that you propose to
carry on business in some way under that
name.

I am looking further into the matter and at
this stage I want you to know that I am
opposed to any use of the name and I would
be very disappointed in you should you make
use of it."

22. On 29 May 1984, Mr. Lyons wrote to Mr. Halloran. He did so on letterhead which bore the heading, "Lyons Brothers Group of Companies and Affiliates". Underneath that name were the words, "Incorporated in New South Wales". There then followed a number of companies, one being the respondent Lyons Brothers (Australia) Pty Limited, each of which presumably was incorporated in New South Wales. Under a further heading, "Incorporated in Queensland" were six further companies. At the bottom of the letter were printed the words, "Lyons Brothers (UK) Limited (Established 1929)". The letter said:

"We confirm that a company styled Henry F.
Halloran & Co. Pty Limited has been
incorporated and that the nominee Directors
and Shareholders in that company have some
association with our Group.

You will appreciate that we did purchase
approximately 2/3 of the land holdings of
the Group known as Realty Realizations
Group. We feel a need to have a trading
name that identifies with the land holdings
of the Realty Group since both your late
father and the Realty Realizations Group
have a long and established track record and
contained within our purchase from your
sisters was a certain goodwill content.

Since we are not able to use the Realty
Realizations' name, we made enquiries as to
whether Henry F. Halloran & Co. was
available. It seems that neither you nor
your family have preserved such status and
accordingly we felt that we were both
legally and morally able to use the name as
a marketing entity. We would be prepared to
relinquish such useage should you be willing
to transfer the rights to the Realty
Realization Group name to our companies.

We certainly have no desire to offend you or
your family and hope you will understand and
agree with our intentions."

23. Mr. Halloran replied to this letter on 31 May 1984, saying that if the name Henry F. Halloran & Co. were used in the manner proposed, he thought that on behalf of all the members of the family that Mr. Lyons would offend. He added, "For myself, that certainly will be the case."

24. Mr. Halloran said that subsequently he came into possession of a letter dated 15 August 1984 written on a letterhead entitled Henry F. Halloran & Co. Group of Companies. The letter was addressed to the Town Clerk of the City of Queanbeyan. Its contents are not relevant. It is the get-up of the letter to which reference needs to be made. The words Henry F. Halloran & Co. are in the same sign-like drawing as they are in the advertisement; they are in the same scroll-like print and appear in a box above the words, "Group of Companies," which are in block letters. A number of companies are listed underneath the name, some of which are respondents to this application. Mr. Halloran, however, pointed out that two of the companies - that is to say the eighth and twelfth respondents - were not companies with which his father had any association. He said that he knew nothing of their origin.

25. At the bottom of the letter were the words, "Developing land for Australians since 1886". Mr. Halloran said that none of the other companies said to form part of the Henry F. Halloran & Co. Group of companies were developing land for Australians or for any other persons since 1886 nor was his father involved in land development at that time.

26. Mr. Halloran said that he heard nothing further about the use of the name Henry F. Halloran until he read the advertisement which appeared in the Good Weekend on 6 October 1984. He said that his father had no business or personal connection whatsoever with the persons who had control of the companies said to constitute the Henry F. Halloran & Co. Group of Companies.

27. That completes the account of the evidence led on behalf of the applicants to which I find it necessary to refer. There was other evidence led on Mr. Halloran's behalf but I do not regard it as of direct relevance. I indicate, however, my acceptance of the truth of the evidence which each of the witnesses gave. Apart from Mr. Hiscock, the respondents called two witnesses, Mr. Pudig, their solicitor, and Mr. Davey. I do not need to refer to Mr. Pudig's evidence. Mr. Davey said that he was the secretary of all the corporate respondents. The respondent, Mr. Lyons, was said by him to be the chief executive officer of most of the corporate respondents. Mr. Lyons did not give evidence.

28. At the outset I wish to say that I found Mr. Davey's evidence unsatisfactory. That was not due, I think, to dishonesty on his part, but to inexperience and lack of real knowledge of many of the things he sought to depose to. Eventually I said that I would not accept any part of his evidence unless it were agreed upon or corroborated by other evidence whether documentary evidence or otherwise. I said this before the evidence concluded in order to give counsel for the respondents an opportunity to call additional evidence if he thought it necessary.

29. No additional evidence was called but some agreement was reached about some of the matters deposed to in Mr. Davey's evidence. The evidence which I accept shows that the purchaser of the shares under the 16 March agreement, Idotrack Pty Limited, is a company associated with or controlled by Mr. Lyons. It also shows that the first respondent, Henry F. Halloran & Co. Pty Limited, was incorporated on 18 October 1983 as Damilarp Pty Limited which was a shelf company. According to Mr. Davey it is intended to change the name of the company. It is not carrying on any business at the moment. I do not know whether those statements are correct or not. The evidence does not enable me to say.

30. The evidence also discloses the name, Henry F. Halloran & Co. Group of Companies, has been registered as a business name pursuant to the Business Names Act 1962 (N.S.W.). Originally the proprietor was to be the first respondent, Henry F. Halloran & Co. Pty Limited, but the Corporate Affairs Commission would not accept the registration because the name indicated a group; more than one proprietor was required. The registered proprietors were originally the first respondent and the respondent Canberra Suburbs Pty Limited. The registration was effected on 5 May 1984; subsequently application has been made to change the registration to encompass all the companies in which Idotrack acquired shares as a result of the agreement of 16 March 1984.

31. There was an extensive cross-examination of Mr. Davey, much of it designed to show that the person behind the advertisement was Mr. Lyons and that the advertisement had been inserted on behalf of the Lyons Group of Companies or companies controlled by Mr. Lyons. This cross-examination served to demonstrate how unsatisfactory Mr. Davey was as a witness, but I do not think it assists greatly in the resolution of the question to be decided in the case.

32. In summary, the facts of the matter are as follows:

1. Henry F. Halloran was a well known real estate developer in New South Wales from some time in the 1890s until his death in 1953. He had a reputation for sound judgment, honesty and integrity: that is the burden of his son's evidence and what his son said is confirmed in the evidence of Mr. Hiscock.

2. In 1930 he separated his activities by forming the company, Realty Realisations Limited, as it then was. It carried on business as a developer leaving him to pursue his professional occupations which included surveying, valuing, town planning and conveyancing as well as some other such activities. His name continued to be known in connection with real estate development but the name Realty Realisations, either Limited or Pty Limited developed, a reputation of its own.

3. It was that name which continued to be used after Mr. Halloran's death in 1953. The firm name, Henry F. Halloran & Co., which Mr. Halloran senior had used was allowed to lapse so that by the year 1960 or thereabouts it was Realty Realisations alone which had a reputation in the land development business Mr. Halloran had commenced.

4. Realty Realisations Pty Limited has had a continuing reputation in that field since 1930.

5. It was operated by members of the Halloran family until the partition which occurred in 1982. Since then it has been operated by the applicant.

6. In 1982 the major interests in the land managed by Realty Realisations Pty Limited were held in almost equal shares by the applicant and his two sisters. Mr. Hisock also had a small interest.

7. In 1982 it was decided to divide up the land so that the applicant and his sisters would have about an equal share in it. This necessitated transfers of land from some of the companies to others. When this had been done the sisters controlled 17 companies and the applicant 7. Additionally he had the companies Realty Realisations Pty Limited and Loralyn Pty Limited.

8. Each of the applicant and his sisters was then free to deal with his or her land as he or she saw fit. In the result the sisters decided to sell to the Lyons' interests. This was done pursuant to the agreement of 16 March 1984 which provided for the transfer to Idotrack Pty Limited of the shares in each of the 17 companies which they controlled.

9. In May 1984 steps were taken by the Lyons' interests which would enable them to use the Halloran name.

10. The first manifestation of this was the advertisement which appeared on 6 October 1984.

33. Against this factual background the first question is what a reader of the advertisement would take from it. In the light of the fact that Mr. Halloran has been dead for over 30 years and did not engage directly in real estate development in his own name after 1930, it seems unlikely that many people, except perhaps some who have a close knowledge of the industry, would have heard of him or have known of any reputation he had for soundness of judgment, honesty and integrity in land dealing. But the overall effect of the advertisement would be to indicate to a reader that a very old undertaking which had been in business at least since the early part of the century was still in business and was continuing in the tradition of its founder. That tradition is best summed up in the opening words of the advertisement earlier quoted, namely:

"Since 1906 our land developments have proven
to be outstanding investments."

And the words further on in less bold type:

"For nearly 100 years our Estates have proven
to be a sound form of investment. Like the
purchasers of land at Seaforth in 1906 we
are just as confident of the investment
potential of today's offering."

34. In my opinion, a reader would understand that he was dealing with a group of companies of substance with a long and successful experience of the purchase of land for investment purposes. The message is one of stability, long experience, continuity, substance and wise judgment. There is also to be inferred that the advertiser is the continuation of the enterprise founded by Henry F. Halloran.

35. The provisions of the Trade Practices Act which are relied upon are sub-sec. 52(1) and para. 53A(1)(a). The former section provides that a corporation shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive. The latter provision is as follows:

"53A.(1) A corporation shall not, in trade or
commerce, in connexion with the sale
or grant, or the possible sale or
grant, of an interest in land or in
connexion with the promotion by any
means of the sale or grant of an
interest in land -

(a) represent that the corporation has a
sponsorship, approval or affiliation
it does not have;"

36. The essential submission made by counsel for the respondents was that there was no breach of either provision because the various companies were, under their present control, well entitled to call themselves the Henry F. Halloran and Co. Group of Companies. They were all companies founded by Mr. Halloran. The land advertised had been acquired either before 1930 by him or in the period between 1930 and 1953 by Realty Realisations Pty Limited. The companies were thus properly described as the Henry F. Halloran Group of Companies. The position was little different from many other situations in various fields today where companies are acquired by other interests, but continue on in their former names. There was no attempt by counsel to rely upon what Mr. Lyons had said in his letter to Mr. Halloran, namely that a certain element of goodwill was involved in the acquisition of the shares. I have not myself been able to find in the agreement reference to any such matter.

37. I have given the submissions made by counsel for the respondents due consideration. In my opinion they should be rejected. I am unable to find in the whole of the evidence any basis for the continuity and connection with the Henry F. Halloran name which the advertisement claims. Since at least 1930 there has been no such group. From that time the business was conducted by Realty Realisations. From Mr. Halloran's death in 1953 little or no use of Mr. Halloran's name was made. After the business name lapsed in or about 1960 there was no use of it at all. It seems to me that all that happened in this case was that the Lyons' interests acquired land formerly owned or controlled by the applicant's sisters. The vehicles used for the transfer of the lands were the companies which held them, the shares in which were transferred from the sisters to the Lyons' interests.

38. The real advertiser was Mr. Lyons or companies controlled by him and perhaps Industrial Equity Limited with which he is apparently associated in this venture. The claimed connection with Henry F. Halloran and Co. is based on no more than that the Lyons interests purchased shares in companies formerly controlled by him, his family or Realty Realisations Pty Limited. In my opinion the advertisement is a pretence of something which is not and is thus misleading and deceptive.

39. I am also satisfied that, within the meaning of para. 53A(1)(a), of the Act it represents that the group or the companies have a sponsorship or affiliation which they do not have. It may be that the Lyons' interests have a reputation in real estate in their own right; the evidence does not enable me to say. But they are not entitled, in my opinion, to hold out to the public, as they have done, that they were founded almost 100 years ago or that they have had a continuing tradition in real estate development based on what I may call the Halloran connection.

40. For those reasons the applicant is entitled to relief of the kind which he seeks. In a moment I shall raise with counsel what the form of that relief should be, but before I do so, there are two matters that I should mention. Neither is associated one way or the other with the merits of the case, but they are matters which have come to my attention in the course of hearing the evidence.

41. The first is the registration of the business name, Henry F. Halloran and Co. Group of Companies. Section 5 of the Business Names Act 1962 (N.S.W.) provides that a person shall not either alone or together with other persons carry on business in the State under a business name unless the business consists of the name of that person, or, the business name is registered under the Act. "Business name" is defined in sub-sec. 4 (1) of the Business Names Act to mean a name, style, title or designation under which a business is carried on. I find it difficult to understand upon the evidence that I have had in this case how it could be said that the companies which are said to form the group and which may by now have been registered as the proprietor of the name, carry on a business in the sense in which that expression is used in the Act.

42. The second matter I wish to mention has to do with the minutes of one of the Lyons companies, Lyons Brothers (Australia) Pty Limited. The minute book, that is to say the bound minute book, was produced and marked 1 for identification. It contained no minutes after 30 November 1978 affixed to it although there were minutes dated 30 November 1981 and 31 December 1981 appended to a page of it with a glider clip. There were also produced separately from the minute book certain minutes of meetings of directors and of annual general meetings, not all of which were signed. These minutes were produced by the company secretary, Mr. Davey. The separate minutes on the loose sheets of paper were marked 3 for identification. Eventually the documents marked 1 and 3 for identification became Exhibit E.

43. In my opinion the material to which I have referred discloses a prima facie breach of s. 253 of the Companies Code (N.S.W.) which, in sub-sec. 1, provides that a company shall cause minutes of all proceedings of general meetings and of meetings of its directors to be entered within one month after the relevant meeting is held in books kept for that purpose. There is a penalty of either $1,000 fine or imprisonment for three months or both for breach of the section.

44. I have also some reason to think that the register of members of one of the companies which is also in evidence does not comply with the provisions of s. 256 of the Companies Code.

45. For those reasons a copy of this judgment will be sent to the Corporate Affairs Commission after it becomes available. The minute book and the loose minutes which together form Exhibit E will not be released except on the order of a Judge of this Court.

(Discussion then ensued as to the form of the orders to be made).

HIS HONOUR:

1. I give leave to the applicant to amend his application by:

(a) inserting after the words "Henry F. Halloran & Co. Group" in para. 4(e) and para. 9(e) the words "under either of those names"

(b) inserting after the words. "An order that each of" in para. 8 the words "the twenty-first respondent"

2. I make orders in terms of paras. 1, 2, 4 (as amended), 5, 8 (as amended), 9 (as amended) and 10 of the application.

3. I order the respondents to pay the applicants' costs of the application.

4. I order that the exhibits other than Exhibit E be returned to the person from whose custody they were produced, on or before 1 February 1985, if in the meantime no appeal has been lodged. Exhibit E is not to be returned except upon the order of a Judge of this Court.