Market Facts (Qld) Pty Ltd v Peregrine Capital Australia Ltd [1995] FCA 379

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CATCHWORDS

PRACTICE AND PROCEDURE - Security for costs - credible evidence that applicant unable to pay respondent's costs of the proceedings if unsuccessful - present financial position not affected in any significant way by alleged conduct of respondent - recent history of substantial fluctuation in financial position of applicant not due to conduct of respondent - litigation being carried on for the personal benefit of principal shareholder - that principal shareholder not willing to come out from behind the shield of the company and hazard his assets a significant factor in favour of ordering security - not persuaded that order for security will stifle litigation.

Federal Court of Australia Act 1976 (Cth) ss.56(1), 59(1)

Corporations Law s.1335

Gentry Bros. Pty. Ltd. v. Wilson Brown & Associates Pty. Ltd. (1992) 8 ACSR 405 - Appl.

Bell Wholesale Co. Pty. Ltd. v. Gates Export Corp. (1984) 2 FCR 1 - Appl.

Harpur v. Ariadne Australia Ltd. [1984] 2 Qd.R. 523 - Appl.

National Bank of New Zealand Ltd. v. Donald Export Trading Ltd. [1980] 1 NZLR 97 (CA) - Refd.

Pacific Acceptance Corporation v. Forsyth [1967] 2 NSWR 402 - Refd.

Chaplin v. Hicks [1911] 2 KB 786

McRae v. Commonwealth Disposal Commission (1951) 84 CLR 377

The Commonwealth v. Amann Aviation Pty. Ltd. (1991) 174 CLR 64

Cameron's Unit Services Pty. Ltd. v. Kevin R. Whelpton & Associates (Aust.) Pty. Ltd. 13 FCR 46

John Arnold's Surf Shop Pty. Ltd. (In Liq.) v. Heller Factors Pty. Ltd. (1979) 22 SASR 20 (FC)

Brundza v. Robbie & Co. [No. 2] (1953) 88 CLR 171

Caruso Australia Pty. Ltd. v. Portec (Australia) Pty. Ltd. (1984) 1 FCR 311

Market Facts (Qld) Pty. Ltd. ACN: 009 040 265 v. Peregrine Capital Australia Ltd. ACN: 011 024 326

No. QG200 of 1994

Cooper J., Brisbane, 9 June, 1995

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

No. QG200 of 1994

BETWEEN:

MARKET FACTS (QLD) PTY. LTD.

ACN: 009 940 265

Applicant

AND:

PEREGRINE CAPITAL AUSTRALIA LTD.

ACN: 011 024 326

Respondent

JUDGE MAKING ORDER:Cooper J.

WHERE MADE: Brisbane

DATE OF ORDER: 9 June, 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Security of SIXTY THOUSAND DOLLARS ($60,000.00) be provided by the applicant Market Facts (Qld) Pty. Ltd. ACN: 009 040 265 or on its behalf within twenty-one (21) days to be in a form agreed by the respective solicitors for the parties and in default of agreement in a form fixed by the District Registrar with liberty to apply.

2. The applicant's proceedings be stayed until compliance with the order for security.

3. Market Facts (Qld) Pty. Ltd. ACN: 009 040 265 pay the costs of Peregrine Capital Australia Ltd. ACN: 011 024 326 of and incidental to the notice of motion including reserved costs if any, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

No. QG200 of 1994

BETWEEN:

MARKET FACTS (QLD) PTY. LTD.

ACN: 009 940 265

Applicant

AND:

PEREGRINE CAPITAL AUSTRALIA LTD.

ACN: 011 024 326

Respondent

CORAM: Cooper J.

PLACE: Brisbane

DATE: 9 June, 1995

REASONS FOR JUDGMENT

This is an application made by the respondent ("Peregrine") for security for costs. The application is made under sections 56(1) and 59(1) of the Federal Court of Australia Act 1976 and section 1335 of the Corporations Law.

The applicant in the principal proceedings ("Market Facts") seeks in excess of $9,000,000.00 for loss and damage alleged to have been caused by misleading and deceptive conduct in contravention of section 52 of the Trade Practices Act 1974, and breach of contract. Market Facts alleges in its amended statement of claim that Peregrine represented that it would underwrite or cause to be underwritten the float of an Australian public company as the joint venture vehicle for the supply and processing of Australian wool to and by a woollen mill in the Ukraine. Market Facts alleges that the respondent itself became party to the joint venture which is contained in or evidenced by a written agreement executed by the parties on 25 February, 1994. It is alleged that under that agreement Peregrine undertook to complete a pre-feasibility study within two months of the execution of the agreement and the main feasibility study within six months of execution. Market Facts alleges that Peregrine failed to complete the feasibility study and refused to underwrite, or cause to be underwritten, the public company float. That failure is alleged to be misleading or deceptive conduct in breach of section 52 and is also pleaded in various ways as a breach or breaches of contract.

Market Facts further alleges that Peregrine misrepresented its financial ability to underwrite the float or to procure funding from an international group of companies described as the Peregrine Group and was negligent in not completing the main feasibility study and failing to secure funding for the public float.

The formulation of Market Facts loss and damage is predicated on the basis that the joint venture has failed and is pleaded as :-

"Damages to the applicant's commercial reputation $ 200,000.00

Loss of marketing fees $ 285,000.00

Loss of equity in LISTEDCO at par $1,710,526.00

Loss of equity in Checkseal $6,301,170.00

Loss of profits on marketing agreement $ 500,000.00

TOTAL $8,996,696.00

plus loss of income from what would have been the equity in LISTEDCO and Checkseal and special damages particulars of which will be supplied prior to trial.

Further and/or alternatively, $30,000 expenses incurred by the applicant prior to the agreement with the respondent dated 14 February, 1994 relating to the project and a further $10,000 subsequent to 14 February, 1994."

The losses claimed for marketing fees, equity and loss of profit are losses
of future income or property dependent upon there being a satisfactory feasibility study produced, the successful float of a public company and a successful and profitable joint venture based on wool processing in the Ukraine. As pleaded the claim, in my view, if successful amounts to a loss of an opportunity and any entitlement to damages would be assessed accordingly (Chaplin v. Hicks [1911] 2 KB 786; McRae v. Commonwealth Disposal Commission (1951) 84 CLR 377 at 412; The Commonwealth v. Amann Aviation Pty. Ltd. (1991) 174 CLR 64).

The only direct loss pleaded is the payment of $30,000.00 by Market Facts prior to 14 February, 1994 and $10,000.00 thereafter on account of expenses. The total reliance damage claimed is the $40,000.00 which it must be inferred, as it is not pleaded, is wasted expenditure. Finally the claim involves a claim for $200,000.00 for damages to Market Facts' commercial reputation.

Peregrine, by its solicitor Mr. Standish estimates Peregrine's costs of preparation and on trial for a ten day trial would amount to $127,000.00. The detailed basis of this calculation is set out in Mr. Standish's affidavit. Market Facts has not sought to challenge in any way the basis of the calculation or the quantum of the costs. From a perusal of the material I am also satisfied that the estimate is a reasonable one.

Peregrine submits that there is credible evidence that if it succeeds in its defence of the proceedings, Market Facts will be unable to pay Peregrine's costs of the proceedings. That evidence comes from an examination by Christopher Skelton, chartered accountant, of the financial resources of Market Facts for the years 1991 to 31
December, 1994.

Mr. Skelton deposes that the company has a paid up capital of $4,012.00, representing 4,012 fully paid up shares of $1.00. Those shares are held by Mark Sybert Troy as to 4010. He further deposes :-

"10. The accounts reveal that the operating performance of the applicant has fluctuated substantially over the period covered by those accounts, as set out in the table below -

TOTAL 1991 1992 1993 1994 31.12.94

$ $ $ $ $

Gross profit 269,918.41 111,101.51 179,075.11 130,423.35 110,864.91

Overhead Expenses 223,455.32 174,833.55 140,949.89 152,909.33 84,992.59

Net Profit (Loss) 46,463.09 (63,732.04) 38,125.22 (22,485.98) 25,872.32

11. The accounts reveal that the financial position of the applicant as at the end of the relevant accounting periods has fluctuated substantially, as set out in the table below -

TOTAL 1991 1992 1993 1994 31.12.94

$ $ $ $ $

Current Assets 54,870.49 (20,740.36) (38,845.31) (52,522.95) (49,392.19)

Non-current Assets 31,451.91 43,612.91 94,596.91 102,321.06 105,616.21

Intangible Assets 603.00 603.00 603.00 603.00 603.00

Total Assets 86,925.40 23,475.55 56,354.60 50,401.11 56,827.02

Current Liabilities 18,924.62 5,846.77 4,213.26 21,352.41 2,000.00

Non-current

Liabilities 25,360.04 38,720.08 35,107.42 34,500.76 34,500.76

Total Liabilities 44,284.66 44,566.85 39,320.68 55,853.17 36,500.76

Net Assets 42,640.74 (21,091.30) 17,033.92 (5,452.06) 20,326.26

12. The accounts do not show any consistent trend in the performance of the applicant. Each period from 1991 to 1994 in which there has been a profit has been followed by a loss. There was a deterioration of $110,195.13 between the 1991 and 1992 financial years, an improvement of $101,857.26 between the 1992 and 1993 financial years, and then a deterioration of $60,611.20 between the 1993 and 1994 financial years.

13. Both as at 30 June 1994 and at 31 December 1994 the applicant had substantial liabilities by way of borrowings which are set out in the table below, the bank overdraft appearing in the accounts as an `asset' - cash at banks - but as a negative amount -

30.06.94 31.12.94

$ $

Bank overdraft 63,588.30 52,392.19

Loans 34,500.76 34,500.76

Total borrowings 98,089.06 86,892.95

14. Both as at 30 June 1994 and at 31 December 1994 the applicant's principal assets were investments and loans, the amount of which is set out in the table below -

30.06.94 31.12.94

$ $

Investments 62,229.70 62,229.70

Loans 31,704.36 34,509.51

Total investments & loans 93,934.06 96,739.21

The accounts do not give any indication of the nature of the investments, the basis upon which they have been valued, the recipient of the loans, or the prospects of their being recovered in full.

15. The net position arising if the total borrowings referred to in paragraph 13 above are deducted from the investments and loans referred to in paragraph 14 above is set out in the table below -

30.06.94 31.12.94

$ $

Net investments and loans

less borrowings (4,155.00) 9,846.26

16. If the assets and liabilities referred to in paragraphs 13 and 14 are excluded from the accounts the only tangible assets and liabilities of the applicant at 30 June 1994 and 31 December 1994 were as set out in the table below -

30.06.94 31.12.94

$ $

Tangible assets 19,452.35 11,877.00

Liabilities 21,352.41 2,000.00

Net other assets (1,900.06) 9,877.00

17. The accounts reveal that the applicant has had, and continues to have, a working capital deficiency (i.e. its current liabilities exceed its current assets) since 30 June 1992. The working capital at the end of the last 4 financial years, and at 31 December 1994, is set out in the table below -

1991 1992 1993 1994 31.12.94

$ $ $ $ $

Working capital

(deficiency) 35,945.87 (26,587.13) (43,058.57) (73,875.36) (51,392.19)

The figures for 1993 and 1994 are consistent with the information in the annual returns for each of those years as lodged by the applicant at the ASC.

18. The accounts do not enable me to assess whether -

(a) usually the trading performance of the applicant in the second half of a financial year (i.e. from 1 January to 30 June) is consistent with that achieved in the first half of a financial year (i.e. from 1 July to 31 December), deteriorates or improves;

(b) the trading performance of the applicant in the second half of the current financial
year (i.e. from 1 January 1995 to 30 June 1995) is likely to result in any significant change to the net assets of the applicant when compared to the position as at 31 December 1994."

Market Facts, in an affidavit sworn by its solicitor Mr. Michael Hogan on the basis of information and belief deposes :-

"2. I am informed by Mark Troy and verily believe as to the following facts:-

(a) Mr. Troy is the director of the applicant and for all practical purposes has all the legal and beneficial interest in the shares in the applicant company;

(b) The applicant company is continuing to trade normally, and a profit is expected this financial year;

(c) The applicant's financial position would have been much stronger but for the actions of the respondent in refusing to complete the feasibility study;

(d) The applicant had an agreement in place with Hadley Castle Pty Ltd to advance up to $200,000 the monies being advanced progressively, monthly, in $25,000 amounts commencing on 31 May 1994. The applicant did not obtain any such monies given the lack of action by the respondent. Now shown to me and marked `MRH1' is a copy of the letter from Hadley Castle Pty. Ltd.;

(e) The profits of the applicant have been adversely affected by the failure of the respondent to complete the feasibility study, in excess of $30,000 have been spent in direct expenditure by the applicant;

(f) Further, the `opportunity costs' of the applicant's involvement in the Chernigov Project which prevented the applicant from diverting the resources into profitable activity, meant that the profit was down over that period;

(g) The adverse profit and loss in the 1994 year were principally due to the expenses incurred in the Chernigov project and opportunity costs of same;

(h) Mark Troy is not in a position to provide any security for costs, his having made inquiries of his bank and those
inquiries revealing an unsuccessful application. Now shown to me and marked `MRH2' is a copy of a letter from Mr. Troy's bank;

(i) The applicant is comfortably solvent, being able to pay its debts as and when they fall due and based on current trading could pay the respondent's costs if given time to pay (in the event the applicant lost the action);

(j) However the applicant company is not in a position to provide any security for costs, it not being able to offer security to any financial institution;

(k) The applicant is not a shell having traded actively as a market research company for 20 years;

(l) Should the company or Mark Troy be required to provide some form of security for costs then the action cannot proceed;

(m) All the facts in the statement of claim are true and correct;

(n) The applicant is a reluctant litigant and on 14 November 1994, wrote to the respondent seeking a resolution to the dispute on an open basis. ..."

No further explanation of the company's financial position was forthcoming. Nor was it explained how Market Facts itself intended to fund or secure payment of its own legal fees and expenses in the preparation and prosecution of these proceedings.

From the amended statement of claim and particulars the earliest contact between Market Facts and Peregrine in relation to the matters pleaded was 10 January, 1994. The net loss of Market Facts for the financial year 1992 in the sum of $63,732.04 had nothing to do with any conduct of Peregrine and how it was incurred is unexplained. Of the $40,000.00 inferred to be claimed as wasted expenditure incurred in the financial
year 1994, $30,000.00 was incurred before Peregrine agreed to become involved in the joint venture on 10 February, 1994. Presumably that expenditure or some part of it would have been made in any event without the involvement of Peregrine. Likewise the so-called opportunity cost from involvement with the project would have been incurred in any event without the involvement of Peregrine. Thus irrespective of the involvement of Peregrine from January, 1994 the trading figures would have reflected the impact of the Ukraine project. There is no material to suggest that absent the Ukraine project there would have been at best any profit significantly above a range of $20,000.00 - $30,000.00.

The material does not disclose that Market Facts' present financial position has been in any significant way affected by the alleged conduct of Peregrine. The complaint is that because of Peregrine's conduct, Market Facts has been denied great wealth and profits. It is not a case of conduct destroying existing wealth or profitability. The present financial position of Market Facts as revealed in the calculations of Mr. Skelton shows a picture of some financial stringency brought on by circumstances other than the conduct of Peregrine. The statement that Market Facts would require time to pay Peregrine's legal costs if Market Facts lost in the proceedings, the fact that Market Facts has granted a charge over its book debts both past and present in favour of Westpac to secure advances by and liabilities to the bank including a bank overdraft which has been in excess of $50,000.00 since 1993, and the admission that Market Facts cannot itself provide security or obtain security from any other source, satisfies me that if Peregrine succeeds in its defence there is reason to believe that Market Facts will be unable to pay the costs of Peregrine.

In Gentry Bros. Pty. Ltd. v. Wilson Brown & Associates Pty. Ltd. (1992) 8 ACSR 405, I set out the relevant principles applicable to an application for security for costs and (at 410-416) discussed some of the discretionary factors which go to the question whether the interests of justice will be served in any particular case by the making or refusing of an order for security for costs. I do not intend to set those matters out afresh.

In the present case it cannot be said that the impecuniosity of Market Facts was caused by the conduct of Peregrine. All that can be said is that if Market Facts succeeds on its claim it may be able to demonstrate that Market Facts would have been materially better off if the joint venture had come to fruition.

It is not possible to make any worthwhile assessment of Market Facts' claim. The claim is substantially an unfulfilled promise claim involving questions of fact, credibility of witnesses, the construction of documents and questions of Australian and perhaps Ukrainian law. Therefore I have treated the prospects of the litigation as neutral to the balance for or against the making of an order.

In Bell Wholesale Co. Pty. Ltd. v. Gates Export Corp. (1984) 2 FCR 1 at 4, a Full Court (Sheppard, Morling and Neaves JJ.) said :-

"In our opinion a court is not justified in declining to order security on the ground that to do so will frustrate the litigation unless a company in the position of the appellant here establishes that those who stand behind it and who will benefit from the litigation if it is successful (whether they be shareholders or creditors or, as in this case, beneficiaries under a trust) are also without means. It is not for the party seeking security to raise the matter; it is an essential part of the case of a company seeking to resist an order for security on the ground that the granting of security will frustrate
the litigation to raise the issue of the impecuniosity of those whom the litigation will benefit and to prove the necessary facts.

We pause to make it clear that the matters we have considered are by no means the only relevant ones. We have concentrated our attention on them because they were to the forefront of the appellant's argument. But the court's discretion is unfettered; each case must depend on its own circumstances; see generally Paterson, Ednie and Ford, Australian Company Law (3rd ed.), par. 533-1 et seq."

Market Facts submits that the affidavit of Mr. Hogan in paragraph 2, which is set out above, discharges the onus cast upon it in terms of the Full Court statement in Bell Wholesale. It submits that the company cannot provide security and that Mr. Troy cannot provide security. In support of this contention Market Facts exhibited a letter from Westpac Banking Corporation dated 26 May, 1995 and addressed to Mr. Troy as the Chief Executive of Market Facts which stated :-

"I regret to advise the Bank is unable to provide a Bank Guarantee as `Security for Costs' in any legal action you are undertaking.

As you know the Bank holds a 1st Mortgage over your home at 45 Walter Ave East Brisbane, having assisted in its purchase, and a 2nd Mortgage to secure an advance to Market Facts (Qld) Pty Ltd.

Until there is substantial reduction in either of the advances against the 1st and 2nd Mortgages, we would not be in a position to offer further support.

We value our long association with you and look forward to future opportunities of being of service."

There is nothing in the evidence to indicate the terms of the request to the bank or the amount of the security requested.

In support of the inability of Mr. Troy to provide security, Market Facts' solicitors provided to Peregrine's solicitors the following statement of position :-

" STATEMENT OF POSITION

Mark S. Troy

LIABILITIES Amount ASSETS Amount

$ $

1st Mortgage(home) 65,000.00 Home 260,000.00

2nd Mortgage (securing

Market Facts advance) 65,000.00

Credit card debts 7,000.00

Shares (Delways

Distributors P/L) 105,000.00

Shares (Market

Facts (Qld) P/L 4,010.00

1981 Volvo 5,000.00

Bank A/c's 2,000.00

TOTALS 137,000.00 374,000.00

CONTINGENT LIABILITY: Joint personal guarantee of $300,000 advance to Delways Distributors Pty Ltd; and $50,000 advance to Klamar Clothing Company Pty Ltd (in receivership)"

In his affidavit Mr. Skelton makes the following observations as to Mr. Troy's financial position :-

"The statement of the financial position of Mark S Troy which forms part of exhibit `CJSJ6' hereto shows that Mr Troy has net assets of $237,000. While the statement indicates that he has contingent liabilities by way of guarantee, there is nothing in the statement which indicates that the contingent liabilities are likely to become actual liabilities as a result of the guarantee referred to therein being enforced or, that if it is enforced, Mr Troy will be unable to recover the amount of his liability by way of indemnity from the principal debtor. The statement indicates that Mr Troy has net equity in his home of $130,000 (being the difference between the stated value of $260,000 and the liabilities of $130,000 stated as being secured on it). In my opinion, while it is not clear whether or not Mr Troy would be able to borrow further sums against the security of the assets
referred to in the statement for the purpose of providing security for the respondent's costs of this action, a guarantee of the payment of those costs by Mr Troy, coupled with a mortgage or charge over the assets, would give the respondent security of significant value."

On the hearing of the application Peregrine by its counsel made clear that it would accept the personal guarantee of Mr. Troy with an undertaking not to dispose of or further encumber his property pending the hearing of the proceeding. Mr. Troy has not offered his personal guarantee on any basis.

The litigation is being carried on for the personal benefit of Mr. Troy. He holds 99.95% of the issued share capital of Market Facts. It is he who stands to benefit substantially if Market Facts succeeds in the litigation particularly if Market Facts can prove up loss and damage in the order of $9,000,000.00. However he is not willing to come out from behind the shield of the company and hazard his assets in the litigation. That he stands to benefit directly but will not hazard his assets is a significant factor in favour of ordering security for costs (Harpur v. Ariadne Australia Ltd. [1984] 2 Qd.R. 523 at 532; Cameron's Unit Services Pty. Ltd. v. Kevin R. Whelpton & Associates (Aust.) Pty. Ltd. 13 FCR 46 at 49; Gentry Bros. Pty. Ltd. v. Wilson Brown & Associates Pty. Ltd. at 413-414). It is also a factor which makes it difficult, if not impossible for Market Facts to demonstrate that the litigation will be frustrated if an order for security is made. Further, it is no bar to making an order for security for costs that the company will be unable to provide the security itself and will have to look to its shareholders and others, for example creditors interested in its assets, to provide assistance (National Bank of New Zealand Ltd. v. Donald Export Trading Ltd. [1980] 1 NZLR 97 (CA) at 100-101; Pacific Acceptance Corporation v. Forsyth [1967] 2 NSWR
402 at 407).

Market Facts submits that it was a reluctant applicant in the principal proceedings and this fact ought to weigh against the making of an order for security for costs. In support of this submission Market Facts refers to a letter written by Market Facts to Peregrine dated 14 November, 1994. The letter is Exhibit "MRH 3" to Mr. Hogan's affidavit. The effect of the letter is to assert that Peregrine, having failed to give notice of termination in accordance with clauses 28 or 29 of the written agreement dated 25 February, 1994, was bound by clause 30 to do all things necessary for the successful initial public offering of shares in Listedco and calls upon Peregrine to perform that obligation and to generally take steps, including the provision of underwriting, to progress the joint venture. Market Facts does not come to this court seeking specific performance of the agreement or of any of its terms. Rather, the claim is one for damages. These proceedings were not initiated by the Market Facts to halt some self-help action initiated by Peregrine and the claims, if established, "clearly could not be described as a shield against the actions of the defendant but might constitute a sword to be used against the defendant" (per Mitchell J. in John Arnold's Surf Shop Pty. Ltd. (In Liq.) v. Heller Factors Pty. Ltd. (1979) 22 SASR 20 (FC) at 35. The letter does not seek to compromise the matters in dispute. It asserts rights and calls for performance of the agreement. The proceedings in this court accept the repudiation of Peregrine and seek damages. The proceedings are not used as a shield nor are they consequent upon Market Facts being forced into court to defend some right. Market Facts is using the proceedings as a sword to attack Peregrine and in so doing is in no different position to any other litigant who cannot obtain performance of an agreement or payment of compensation by
compromise and agreement without recourse to the court.

In my view, having weighed the factors, I am satisfied that the case is one where security ought to be ordered. I am not persuaded that an order for security will stifle the litigation. On Mr. Standish's estimated costs of the action approximately $58,500.00 in costs will be incurred in preparation for trial up to and including the first day of trial. The balance of the $127,077.00 represents the cost of the trial itself. The court does not set out to give a complete and certain indemnity to a respondent and nor is it to be assumed that the applicant will fail in the proceedings (Brundza v. Robbie & Co. [No. 2] (1953) 88 CLR 171 at 175; Caruso Australia Pty. Ltd. v. Portec (Australia) Pty. Ltd. (1984) 1 FCR 311 at 314). Nor in my view should it be assumed that in the event of the applicant failing and being ordered to pay costs it will make no contribution towards the payment of those costs.

Security in the sum of $60,000.00 would be an appropriate amount. Having resisted the application the applicant must pay costs of the notice of motion.

THE COURT ORDERS THAT:

2. The applicant's proceedings be stayed until compliance with the order for security.

I certify that this and the preceding fifteen (15) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.

Date: 9 June, 1995

Associate

Counsel for the Applicant: Mr. L. Boccabella

Solicitors for the Applicant: Lethbridge & Hogan

Counsel for the Respondent: Mr. S. Doyle

Solicitors for the Respondent: Michael Standish, Solicitor

Date of Hearing: 31 May, 1995

Place of Hearing: Brisbane

Date of Judgment: 9 June, 1995

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