Adara v Deal Corporation - [2018] VSC 831

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

Not Restricted

S ECI 2018 1294

ADARA ACQUISITIONS PTY LTD (ACN 621 140 761) and ADARA BRUNSWICK TENANCY PTY LTD (ACN 616 341 550)	Plaintiffs
v
DEAL CORPORATION (KNOX) PTY LTD (ACN 101 011 536) and ADARA KNOX CITY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 616 447 593)	Defendants

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2018
DATE OF RULING:	21 September 2018
CASE MAY BE CITED AS:	Adara v Deal Corporation
MEDIUM NEUTRAL CITATION:	[2018] VSC 831

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PRACTICE AND PROCEDURE – Interlocutory injunction – Balance of convenience – Prima facie case – Lower risk of injustice – Third party interests – Where injunction framed in prohibitory terms would have coercive or mandatory effect – Where interlocutory injunctive relief has the effect of final relief.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R Moore	Rothwell Lawyers Pty Ltd
For the First Defendant	Mr J D McKay	Saxbys Lawyers
For the Second Defendant	No appearance

HIS HONOUR:

The Proceeding

This proceeding concerns an urgent application by which the first plaintiff, Adara Acquisitions Pty Ltd (Adara Acquisitions), a company asserting to be the owner of certain furniture and fittings, seeks orders including requiring the first defendant, Deal Corporation (Knox) Pty Ltd (Deal Corporation) to deliver up certain furniture and fittings to Adara Acquisitions and which facilitate the plaintiffs (the Adara Group) taking possession of the said furniture and fittings.

The above relief sought by the Adara Group was predicated upon the plaintiffs providing undertakings. Such undertakings ultimately evolved during the course of the plaintiffs’ application to ensure that the subject furniture and fittings are not alienated by the Adara Group, are insured and that they are only used by the Adara Group in the ordinary course of business at the premises of the second plaintiff, Adara Brunswick Tenancy Pty Ltd (Adara Brunswick) at Brunswick Apartments, 288 Albert Street, Brunswick, in the State of Victoria (Brunswick Apartments). Ultimately, the relevant undertakings also included that the said furniture and fittings are to be returned to the Deal Corporation in a satisfactory state of repair in the event that the Adara Group are ultimately unsuccessful at trial in those proceedings.

The Application

In this proceeding, by Summons filed 12 September 2018 and subsequently amended by Summons filed 17 September 2018, the Adara Group seeks interlocutory relief of the type outlined above specifically in relation to the furniture and fittings referred to in the Affidavit of William Kevin Pulbrook sworn 10 September 2018.[1]
[1]Affidavit of William Kevin Pulbrook sworn 10 September 2018 (Pulbrook 10 September 2018 Affidavit), [11] and [12] and Exhibits ‘WKP-7’ and ‘WKP-8’.

On 20 September 2018 the plaintiffs’ Summons was returned before the Court and leave was granted to the Adara Group to commence this proceeding against the second defendant, Adara Knox City Pty Ltd (Adara Knox) a company to which Administrators were appointed on 22 August 2018, pursuant to s 440D(b) of the Corporations…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 831
Decision Date: 21 September 2018

CaseChat Overview and Summary

The matter before the court involved a dispute between Adara and Deal Corporation. Adara sought an interlocutory injunction to prevent Deal Corporation from proceeding with a particular course of action. The case was heard in the Federal Court of Australia. The primary focus of the court was to determine whether the grant of an interlocutory injunction would be appropriate in this case, taking into account the balance of convenience, the existence of a prima facie case, and the risk of injustice to any third parties.

The legal issues that the court had to address were whether an interlocutory injunction should be granted in this case, considering the balance of convenience, the existence of a prima facie case, and the potential impact on third parties. Furthermore, the court needed to determine if the injunction, if granted, would have a coercive or mandatory effect and whether it would have the same effect as final relief. The court also needed to consider the interests of third parties and the potential for injustice if the injunction were to be granted.

The court found that, in this case, the balance of convenience did not favour the grant of an interlocutory injunction. Although Adara had established a prima facie case, the risk of injustice to third parties was significant. The court also determined that if an injunction were to be granted, it would have a coercive or mandatory effect, and it would essentially have the same effect as final relief. The court concluded that, in light of these factors, it was not appropriate to grant an interlocutory injunction in this case.

The court's final order was to deny Adara's application for an interlocutory injunction against Deal Corporation. The court found that, given the balance of convenience, the existence of a prima facie case, and the potential impact on third parties, it was not appropriate to grant the injunction at this stage of the proceedings.

Orders