AGC Pty Ltd v Pepper Productions Pty Ltd
[2002] NSWSC 1117
•20 November 2002
CITATION: AGC Pty Ltd v Pepper Productions Pty Ltd [2002] NSWSC 1117 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 5536/02 HEARING DATE(S): 20 November 2002 JUDGMENT DATE: 20 November 2002 PARTIES :
Australian Guarantee Corporation Pty Limited (P)
Pepper Productions Pty Ltd (D1)
David John Scrogings (D2)
Tribal Printing Pty Limited (D3)JUDGMENT OF: Hamilton J
COUNSEL : D Robertson (P)
No appearance (D1-3)SOLICITORS: Henry Davis York (P)
No appearance (D1-3)CATCHWORDS: EQUITY [347] - Equitable remedies - Injunctions - Mandatory injunctions - Other cases - Order to compel delivery of goods - Circumstances where injunction granted on ex parte final hearing. DECISION: Mandatory injunction granted.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
WEDNESDAY, 20 NOVEMBER 2002
5536/02 AUSTRALIAN GUARANTEE CORPORATION PTY LTD v PEPPER PRODUCTIONS PTY LIMITED (IN LIQUIDATION)
JUDGMENT
1 HIS HONOUR: This is the final hearing of a summons by which the plaintiff has claimed an order that three defendants deliver up certain equipment to it. The plaintiff has established that the equipment was its property and was let on hire to the first defendant. The first defendant has since gone into liquidation and its liquidator has indicated that he does not oppose the grant of leave under s 471B of the Corporations Act 2001 (Cth) to the continuation of these proceedings for recovery of the equipment against the first defendant and does not object to the making of the orders sought in relation to the equipment.
2 The evidence indicates that the equipment is at premises rented by the third defendant. The second defendant is the sole director of both the first defendant and the third defendant. I draw the inference, on the evidence, that the equipment is in the control of the second defendant and the third defendant, who are both well apprised of the plaintiff's right to it. A solicitor for the third defendant has, however, written forbidding the plaintiff from entering upon its rented premises to recover the equipment. The evidence establishes that the second defendant and third defendant have indicated their unwillingness to deliver up the equipment to the plaintiff, although the hiring agreement has been terminated by the plaintiff and the plaintiff is clearly entitled to possession of the equipment. The plaintiff has also led evidence indicating that the summons has been served upon the second and third defendants, but they do not appear today.
3 In these circumstances, I am prepared to make final orders in the matter, including granting in the plaintiff's favour an injunction requiring that the defendants deliver up the equipment to the plaintiff forthwith. I shall order that the defendants pay the plaintiff's costs of the proceedings. There will be orders in accordance with the form of orders initialled by me and placed with the papers.
4 Mr D Robertson, of counsel for the plaintiff, sought, in addition, orders authorising the entry of the plaintiff upon the premises occupied by the third defendant to seize the goods. However, the plaintiff has not shown any clear legal entitlement to enter on those premises, particularly as against the third defendant, and I am not prepared to make an order to that effect at the moment.
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