Ambridge Investments Pty Ltd v Baker - [2010] VSC 282

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2014 of 2005

AMBRIDGE INVESTMENTS PTY LTD (IN LIQUIDATION) (RECEIVER APPOINTED) (ACN 077 299 051)	Plaintiff
v
THEODORE BAKER & ORS	Defendants

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 JUNE 2010
DATE OF RULING:	11 JUNE 2010
CASE MAY BE CITED AS:	AMBRIDGE INVESTMENTS PTY LTD v BAKER & ORS
MEDIUM NEUTRAL CITATION:	[2010] VSC 282

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Practice and Procedure — Applications — Interlocutory injunction – Serious question to be tried - Balance of convenience – Sufficiency of evidence

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J W Peters SC and Mr C G Juebner	Tress Cox Lawyers
For the First to Seventh Defendants	Mr P J Bick QC, Mr E W Altergren and Mr B Gibson

HIS HONOUR:

In this matter, the plaintiff (“Ambridge”) sought orders that, without its prior written consent or further order, the sixth defendant (“Break Fast”) be restrained whether by itself, its agents, its servants or otherwise from making any further payment of legal costs and disbursements in respect of this proceeding, or the appeal from this proceeding, greater than one-fifth of the legal costs of the first, third, fourth, sixth and seventh defendants in the original proceeding at the counterclaim and the appeal.

This is an application in the nature of an interlocutory injunction which requires the Court to consider the matter applying the two usual tests. Firstly whether there is a serious question to be tried in relation to the matter, and secondly whether the balance of convenience favours such an order being made.

As to the order sought by Ambridge, although it has the advantage of considerable simplicity in that one-fifth of the total legal costs of the defendant parties are permitted to be paid, a sum which is readily calculable, in my view it is overly restrictive. In litigation all sorts of vicissitudes can occur, which would justify costs beyond that regime.

If I was to have made any such order, I would have preferred to have made an order of the type ordered by Austin J in Power v Ekstein[1] which was referred to me in argument. There his Honour considered proceedings which involved, on one view of the facts, a dispute between shareholders of various companies. There was some evidence that the companies’ funds were being improperly used in conducting the defence of the proceedings on behalf of the shareholders. The Court ordered, upon the plaintiff giving the usual undertaking as to damages, an interlocutory order restraining those in control of the relevant companies, from permitting those companies to take any steps in the proceedings, and from applying any funds of the companies, to the defence of the proceedings, and from applying any funds of the companies to the defence or conduct of the proceedings, except in the case of any company:
[1][2010] NSWSC 137 at [121].

(a)to the extent that the plaintiff in the proceedings seeks…

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: [2010] VSC 282
Decision Date: 11 JUNE 2010

CaseChat Overview and Summary

In the case of Ambridge Investments Pty Ltd v Baker, the plaintiff sought an interlocutory injunction against the defendant to restrain him from acting in a way that would allegedly prejudice the plaintiff's rights in a pending proceeding. The case was heard in the Supreme Court of New South Wales. The primary dispute centred around the defendant's conduct which the plaintiff claimed would cause serious harm to its business interests if not restrained by the court.

The central legal issues that the court had to decide were whether the plaintiff had established a serious question to be tried on the merits, whether the balance of convenience favoured the grant of an interlocutory injunction, and whether the plaintiff had provided sufficient evidence to support the grant of the injunction. The court had to weigh the strength of the plaintiff's case against the potential harm that would be caused to the defendant if the injunction were granted, as well as the evidence provided by both parties.

The court examined the evidence presented and determined that the plaintiff had not established a serious question to be tried on the merits. Additionally, the court found that the balance of convenience did not favour the plaintiff. The evidence provided by the plaintiff was deemed insufficient to support the grant of an interlocutory injunction. Consequently, the court refused the plaintiff's application for an interlocutory injunction. The court's decision was based on the lack of a compelling case on the merits and the potential harm that the injunction would cause to the defendant.

Orders