Apple and Pear Australia Ltd v Pink Lady America LLC (No 2)
[2017] VSCA 10
•8 February 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0127
| APPLE AND PEAR AUSTRALIA LIMITED (ACN 101 551 348) | Appellant (Respondent) |
| v | |
| PINK LADY AMERICA LLC [No 2] | Respondent (Applicant) |
---
| JUDGES: | TATE and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 February 2017 |
| DATE OF ORDERS: | 6 February 2017 |
| DATE OF PUBLICATION OF REASONS: | 8 February 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 10 |
---
PRACTICE AND PROCEDURE – Application for interlocutory relief pending special leave to appeal to the High Court – Prospects of success – Balance of convenience – Whether irreparable loss – Undertakings given to the effect of some of the orders sought – No irreparable loss shown – Application dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant (Respondent) | Mr R M Garratt QC with Mr M D Tehan | Hall & Wilcox Lawyers |
| For the Respondent (Applicant) | Mr M W Wise | Arslan Lawyers |
TATE JA
McLEISH JA:
Introduction
This is an application by Pink Lady America LLC (‘PLA’), made on 16 December 2016, for three orders pending the hearing and determination of its application for special leave to appeal to the High Court from a judgment of this Court delivered on 23 November 2016,[1] and, if special leave is granted, until the hearing and determination of the appeal. The effect of this Court’s judgment is to recognise that Apple and Pear Australia Ltd (‘APAL’) has the right to the ownership and control of PINK LADY trademarks in Chile and that PLA has no entitlement to use those marks in Chile. The orders PLA seeks include, first, a restraint upon APAL from encumbering PINK LADY trademarks in Chile. The second order PLA seeks is a restraint upon APAL from taking steps to prevent PLA from issuing Brand Export Licences in Chile and the third order sought is the imposition of a requirement upon each party to keep all necessary and proper accounts of any royalties it should earn from the issuing of Brand Export Licences in Chile.
[1]Apple & Pear Ltd v Pink Lady America LLC [2016] VSCA 280 (‘Reasons’).
The application was heard by this Court on 6 February 2017. It is only the second order which is seriously in dispute, Mr Garratt QC, on behalf of APAL, having given undertakings to this Court on 6 February 2017 to the effect of the first and third orders. The Court dismissed PLA’s application and indicated that it would shortly deliver reasons. These are those reasons.
By orders made on 23 November 2016 this Court granted APAL leave to appeal and allowed the appeal against a decision of Croft J.[2] The judge had held that an option deed (‘the Option Deed’) between APAL and PLA, which related to PINK LADY trademarks for apples grown and exported from Chile, should be construed to cover not only the trademarks identified in the schedule to that deed, but also a ‘refreshed’ PINK LADY mark subsequently adopted internationally and to which no reference was made in the Option Deed. More generally, he held that the exclusive licence granted to PLA by APAL under the Option Deed would include any mark that in the future became the mandated logo to be used internationally.[3] This Court held that the judge erred in his approach to the trademark licensing agreement contained in the Option Deed and that it did not extend to the ‘refreshed’ mark and nor did it extend to future marks. The effect was that PLA had repudiated the Option Deed, APAL had accepted that repudiation and the Option Deed was terminated. As a result, PLA has no entitlement to use the PINK LADY trademarks in Chile.[4]
[2]Apple & Pear Ltd v Pink Lady America LLC [2015] VSC 617.
[3]Ibid [142].
[4]Following the delivery of reasons for judgment, this Court made orders granting leave to appeal, allowing the appeal and further relevantly ordering that: ‘Paragraphs 4, 5, 6 and 7 of the declarations and orders made by the Honourable Justice Croft on 27 November 2015 are set aside and in lieu thereof the Respondent has no right to use the trademarks specified in Parts 1, 2, 3 or 4 of the Annexure to these Orders (‘the PINK LADY trademarks’) ... The orders made by the Honourable Justice Croft on 11 December 2015 are set aside.’ Orders as to costs were made and the proceeding was remitted to the Trial Division for determination of the remaining questions in the proceeding, the trial below having been confined to the question of liability alone.
At the time of delivery of judgment on 23 November 2016, Mr Garratt, on behalf of APAL, gave an undertaking to this Court not to encumber the PINK LADY trademarks in Chile until the hearing and determination of any stay application PLA made in the event that PLA applied for special leave to appeal to the High Court. The undertaking was recorded in the following terms:
The Appellant by its counsel gave an undertaking not to take any steps to sell, transfer, license (save for the issuance of Brand Export Licences to exporters) or otherwise encumber the PINK LADY trademarks in Chile, including by having the trademarks become subject to any existing securities which are held over the assets of the Appellant, until 4.00pm on 21 December 2016, or if the Respondent on or before that date applies for special leave to appeal in the High Court of Australia and files a stay application, until the determination of the stay application and any stay granted thereon.
On 20 December 2016 PLA filed an application for special leave in the High Court.[5]
[5]On 21 December 2016 this Court ordered by consent that PLA’s application be stood over and listed for hearing in the first week of February 2017, on a date convenient to both parties. The Court noted that the following undertakings were also given: ‘1. [PLA] undertakes that, until further order, PLA will: (i) not disseminate any public notices or correspondence to the media or to the industry which relate to the appeal proceedings; (ii) only discuss the current status of the appeal process in discussions with each individual potential licensee and only as part of preparations to licence; (iii) not represent that it is entitled to issue licences in Chile or otherwise use the PINK LADY trade marks in Chile (being the marks specified in Parts 1, 2, 3 and 4 of the Annexure to the Court of Appeal’s order made on 23 November 2016) (‘PINK LADY trade marks’); and (iv) take no further steps in Chile in relation to the PINK LADY trademarks other than the preparatory action referred to in paragraph 26 of the affidavit of Ms April Arslan, sworn 16 December 2016.’ By orders made on 6 February 2016 this Court released PLA from these undertakings on the basis that they were interim and are no longer necessary as PLA will abide by the orders of this Court.
The three orders PLA now seeks are in the following terms:
1.That the respondent [APAL] not take any steps to sell, transfer, license (save for the issuance of Brand Export Licences to exporters) or otherwise encumber the PINK LADY trademarks in Chile (being the marks specified in Parts 1, 2, 3 and 4 of the Annexure to this application)(‘the PINK LADY trademarks’), including by having the trademarks become subject to any existing securities which are held over the assets of [APAL], until the hearing and determination of the applicant’s [PLA’s] application for special leave to the High Court of Australia and, if special is granted, until the hearing and determination of the resultant appeal.
2.That [APAL] not take any steps to prevent [PLA] from issuing Brand Export Licences under the PINK LADY trademarks in Chile in relation to exports to the United States of America, Mexico, and Canada, until the hearing and determination of [PLA’s] application for special leave to the High Court of Australia and, if special leave is granted, until the hearing and determination of the resultant appeal.
3.That each party keep all necessary and proper accounts of any royalties it should earn from the issuing of Brand Export Licences in Chile, until the hearing and determination of [PLA’s] application for special leave to the High Court of Australia and, if special is granted, until the hearing and determination of the resultant appeal.
PLA supports the proposed first order on the ground that otherwise its application for special leave to appeal, and any consequent appeal, could be rendered nugatory as the PINK LADY trademarks may have become encumbered with third party property rights and no reassignment to PLA may be possible. However, Mr Garratt has given an undertaking to this Court, on 6 February 2017, on behalf of APAL, not to sell, transfer, license (save for the issuance of Brand Export Licences to exporters) or otherwise encumber the PINK LADY trademarks in Chile, including by having the trademarks become subject to any existing securities which are held over the assets of APAL, until the hearing and determination of PLA’s application to the High Court for special leave to appeal and, if special leave is granted, until the hearing and determination of the resultant appeal. In those circumstances, we consider that the undertaking sufficiently protects PLA’s interests and we declined to make the first order sought. The exact terms of the undertaking appear in the orders made on 6 February 2017.
PLA supports the proposed third order on the ground that the parties should continue to maintain all necessary and proper accounts from the issuing of Brand Export Licences in Chile in the event that it is necessary for any loss to be remedied by a later account of royalties. Mr Garratt also gave an undertaking to this Court on 6 February 2017 that APAL will keep all necessary and proper accounts of any royalties it should earn from the issuing of Brand Export Licences in Chile, until the hearing and determination of PLA’s application to the High Court for special leave to appeal, and, if special leave is granted, until the hearing and determination of the resultant appeal. The exact terms of that undertaking also appear in the orders made on 6 February 2017.
Given that this Court determined to dismiss PLA’s application for the second order it became unnecessary for the third order to be made with respect to PLA, or for an undertaking to be sought from PLA for the keeping of necessary and proper accounts from the issuing of Brand Export Licences in Chile. This is because PLA will not be in a position to issue Brand Export Licences in Chile, for the reasons that follow.
In those circumstances, we declined to make the third order sought.
As mentioned, the dispute centres upon APAL’s opposition to the making of the second order, the restraint upon APAL from taking steps to prevent PLA from issuing Brand Export Licences in Chile.
Principles applicable for relief pending special leave
In the recent case of Mercanti v Mercanti[6] Kiefel J held that, where a party has applied for special leave to appeal, an intermediate appellate court, faced with an application for a stay or an interlocutory injunction, should consider whether there is a substantial prospect that special leave to appeal will be granted. However, her Honour remarked that:
This should not be understood as requiring that the prospects of success on the application for special leave be high. …
It is not necessary to state the arguments for and against the grant of special leave. They essentially come down to whether this case involves more than an application of settled principles to the facts of this case, for example, by providing an opportunity for clarification or amplification of a principle by reference to the particular facts of the case.[7]
[6][2017] HCA 1 (‘Mercanti’).
[7]Mercanti [2017] HCA 1 [11]–[12].
In Jennings Construction Ltd v Burgundy Royale Pty Ltd [No 1][8] Brennan J spoke of the need for ‘exceptional circumstances’ to justify a stay in this context.[9]
[8](1986) 161 CLR 681 (‘Burgundy Royale’).
[9]Ibid 684.
In Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd[10] Warren CJ observed, in response to an application for a stay pending special leave, that the ‘jurisdiction to grant a stay is acknowledged as an extraordinary jurisdiction’,[11] noting that the ‘approach of the Victorian Court of Appeal is to view applications for a stay with considerable caution’.[12] This Court emphasised the need for caution in R & M v Independent Broad-based Anti-corruption Commissioner [No 2].[13]In Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health[14] Mason CJ held that Brennan J’s remarks in Burgundy Royale applied with equal force to an application for an interlocutory injunction where special leave to appeal had been sought.[15] Likewise, we consider that the observations in this Court regarding the need for caution in granting a stay pending special leave are equally apt when an interlocutory injunction is sought pending special leave.
[10][2013] VSCA 266 (‘Sunland’).
[11]Ibid [15].
[12]Sunland [2013] VSCA 266 [21].
[13][2015] VSCA 280 [11].
[14](1991) 99 ALR 417.
[15]Ibid 421.
Adopting a cautious approach, it is relevant to consider whether the special leave application would be rendered nugatory unless an order is made that preserves the subject-matter of the litigation to avoid the application becoming futile. Of importance is whether the absence of an order would cause irreparable loss to the applicant and where the balance of convenience lies. In effect there is a need to compare any prejudice that might flow to either party from the grant, or refusal, of an order. Where an interlocutory injunction is sought, there is a requirement for the usual undertaking as to damages or compensation to be given.
In Mercanti Kiefel J reinforced the observation of Brennan J in Burgundy Royale that, where it is appropriate to grant a stay, the duration of the stay should extend to the disposition of the special leave application and, if special leave is granted, until the hearing and determination of the appeal.
The parties’ submissions
Prospects of success of the special leave application
PLA supports its application for the second order on the ground that it alleges that there is a substantial prospect that special leave to appeal will be granted as the matter concerns the status and effect of the ‘true rule’ of contractual interpretation as stated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW).[16] It submits that the proceeding is concerned with the question whether surrounding circumstances are admissible both to raise and then resolve ambiguity in a written contract and whether ambiguity in a contract is confined to lexical, verbal, grammatical and syntactical ambiguity.[17] PLA submits that these questions are of public importance and require the High Court to resolve differences of opinion between intermediate appellate courts.
[16](1982) 149 CLR 337, 352.
[17]The application for special leave is also said to raise questions about the metes and bounds of the absurdity test. This would appear to be a subsidiary issue to PLA’s application for special leave.
No doubt there is an awkwardness in the appellate court that delivered judgment seeking to assess whether the High Court will grant special leave from that judgment or, if special leave is granted, will allow the appeal. In the circumstances of this case, suffice it to say that the judgment concluded that even if resort could be had to events, circumstances and things external[18] to the Option Deed to assist in its interpretation, those circumstances did not suggest a construction contrary to the plain meaning of the Option Deed as ascertained without reference to that material.[19] Those circumstances did not support the existence of a constructional choice or ambiguity, on any understanding of ambiguity, or even if ambiguity is unnecessary before resort can be had to extrinsic evidence.[20] In our view, the questions sought to be raised would thus have no effect on the interpretation of the Option Deed or on the disposition of the case. We consider that the prospects of a grant of special leave are therefore not substantial. However, we prefer not to rest our decision on this basis and we do not do so.
Irreparable loss and the balance of convenience
[18]See Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, 116 [48] (French CJ, Nettle, and Gordon JJ).
[19]See Reasons [147], [161]-[173], [153] (Tate JA), [232] (Ferguson and McLeish JJA).
[20]Ibid.
PLA also submits that, if the second order is not granted, it stands to suffer considerable and irreparable financial damage from the inability to issue Brand Export Licences and that the balance of convenience favours the grant of the order. PLA’s damage is particularised in a supporting affidavit of its solicitor Ms April Arslan sworn 16 December 2016. There were no affidavits from exporters or importers from Chile. APAL denies that the loss to PLA would be irreparable and points to the prejudice it will suffer if the second order is granted. APAL relies upon an affidavit of Garry Thomas Langford affirmed on 20 January 2017. Mr Langford is the manager of APAL’s intellectual property division. There was no application for the deponents to be cross-examined.
The prejudice PLA identifies primarily consists in: (1) the potential disruption and severance of the trade of PINK LADY brand apples from Chile to North America;[21] (2) a disruption to the status quo whereby for the last five years PLA (and not APAL) has issued Brand Export Licences from Chile to North America; and (3) the risk that a double royalty would be imposed on PINK LADY apples within the context of that trade.
[21]‘North America’ is defined in the Option Deed to mean the United States, Canada and Mexico.
PLA alleges that the potential disruption to trade would be significant and irreparable. A company associated with PLA, Brandt’s Fruit Trees (‘BFT’) owns the registration and/or is the exclusive licensee of PINK LADY trademarks in North America. PLA and BFT are in common ownership. Mr Lynnell Brandt is the controlling shareholder of PLA. APAL disputes the extent of PLA’s rights with respect to Canada[22] but this is not material here. It also appears that trade to Mexico has been at best minimal in the last few years.[23] Putting Canada and Mexico to one side, the submission is that because APAL has no access to the market in the United States, that trade route may come to a halt unless PLA is permitted to continue to issue export licences from Chile to the United States. This would cause immediate disruption to PLA’s business relationships and, potentially, the supply of PINK LADY brand apples from Chile to the United States would be severed. There may also be reputational damage.
[22]Affidavit of Garry Thomas Langford affirmed 20 January 2017, [25]. APAL asserts that it owns the PINK LADY trademarks in Canada and it granted BFT a licence to use the marks but only, in so far as exports from the United States to Canada were concerned, in respect of apples of the Cripps Pink variety.
[23]Ibid [17].
To this APAL responds that it intends to issue export licences to North America. Export licences will be issued on the basis that the exporter may need to gain separate permission for the product to be imported into the United States. The evidence of Mr Langford is that:
APAL is in a position to issue licences to all exporters in Chile in a way which I consider will cause little, if any, disruption to the Chilean industry. It is in APAL’s interests for as many Cripps Pink apples as possible to be exported from Chile under the PINK LADY brand, irrespective of whether those apples are exported to a territory in which APAL owns trademark rights or a territory where it does not.
To achieve this, APAL would engage VR [Viveros Requinoa, Ltda] to issue licences on APAL’s behalf. Those licences would operate in the same way as APAL currently does in respect of exports from New Zealand, South Africa, Argentina and Australia. Exporters would thus be licensed to use the trade marks in Chile.
Exporters shipping to the United States will be advised that because APAL does not have trademark rights in that jurisdiction, a licence may be required from the brand owner in the USA for Pink Lady branded product to enter the USA. This is the usual process used by APAL for the above territories in which such a regime has been operating since 2012.[24]
[24]Ibid [47]-[49].
VR is a company that assists APAL with its PINK LADY business in Chile.[25]
[25]See Reasons [11].
This suggests that, even if the second order were granted, PINK LADY apples would continue to be exported from Chile and their importation into the United States would depend upon PLA, or BFT, issuing import licences for that product. The trade route need not be disrupted. It would be within PLA’s control as to whether the supply of PINK LADY apples from Chile to the United States was severed or whether PLA acted so that the supply continued.
PLA acknowledges that APAL has stated that it intends to issue export licences to the United States but it claims there has been no assurance that export to the United States will be actively promoted in competition to APAL’s other trade routes where APAL also owns the marks at point of import. However, there is no evidence before this Court to suggest that it is in APAL’s interests, or that it is APAL’s intention, to diminish the flow of trade in PINK LADY branded apples between Chile and the United States; quite the reverse.
We consider that PLA’s submissions as to its prejudice, based upon the severing or displacing of a trade route, are without merit.
In a related submission, PLA argues that a grant of the second order would cause disruption to the status quo which has prevailed for the last five years during which PLA alone has issued PINK LADY Brand Export Licences to Chilean exporters to North America. (From 2008 to 2011 PLA and APAL issued joint export brand licences to exporters in Chile.)[26] PLA submits that, faced with a disruption to the status quo, exporters in Chile may establish alternative pathways from Chile to the United States that would eliminate PLA’s business on that trade route upon which PLA depends for its survival. PLA submits, based on the evidence of Ms Arslan, on the instructions of Mr Brandt, that negotiations for export licences typically commence well before licences are issued in February or March and for exporters to be faced with market disruption would cause significant, and ‘potentially irreparable’ loss. Ms Arslan records that her instructions from Mr Brandt are that the requirements of the supply chain dictate that the demand for product and the supply of shelf space must be met to ensure the continuity of business relationships. Once there is an interruption in the normal demand/supply business it is very difficult to re-establish this relationship in the same manner as previous seasons. In any event, PLA submitted, making the second order represents the ‘least disruptive’ course.
[26]Reasons [67].
However, the difficulty PLA faces is that the evidence it relies upon is highly general and speculative in nature. It builds hypothesis upon hypothesis in a context in which PLA bears the onus not only to identify loss, but to demonstrate that the loss would be irreparable. There is a lack of evidence as to how exporters in Chile would actually react faced with a market in which APAL issues Export Brand Licences and in which PLA can continue to issue import licences into the United States, if it chooses to do so. There is no evidence about particular negotiations or other arrangements for the 2017 season. Moreover, if the supply of Brand Export Licences continues, there would be no reason to expect that exporters would seek alternative pathways from Chile to the United States, or shift to exporting product to another country. Equally, the state of the evidence makes it impossible to conclude that the ‘least disruptive’ course would be to make the second order. As APAL submitted, the market may well be proceeding on the basis that this Court’s final orders will govern the forthcoming negotiations.
It might be thought that, if this Court refused to make the second order and APAL was free to take steps to prevent PLA from issuing export licences from Chile, while it issued those export licences itself, PLA would at least suffer loss of income from being deprived of the royalty stream flowing from the export licences from Chile. However, Ms Arslan’s evidence is that ‘save for rare occasions where PLA charges North American importation royalties directly to the exporter in Chile, PLA otherwise does not charge a royalty to those exporters’.[27] Her evidence continues:
I am instructed by Mr Brandt and verily believe that the charging of Chilean exporters occurs only where the retailers in North America, who receive the products directly from the exporter in Chile, have no accounting mechanism in their accounts payables to facilitate a royalty fee to the exporter. The exporter on those occasions facilitates that importation charge to PLA direct.[28]
[27]Affidavit of April Arslan sworn 16 December 2016, [17].
[28]Ibid.
It would appear that, with respect to the trade of PINK LADY apples between Chile and the United States, PLA relies solely on an import royalty except for those rare occasions where the importation charge is paid by the exporter to PLA directly. This is relevant to PLA’s third category of damage.
PLA submits that should APAL issue export licences to the United States, PINK LADY brand apples may, for the first time, be subjected to a double royalty, that is, a royalty to be paid to APAL at the point of export from Chile and an additional royalty to be paid to PLA at the point of import into the United States. As noted, the evidence of the timing of the season for export of apples from Chile to the United States is that typically licences are issued in February through March of each year and product is harvested in Chile near the end of April or in the first part of May. The shipments to destinations then take effect over the next four to five months. All parties negotiate and arrange available inventory, market demand and shipping timing well in advance of harvest.[29] PLA submits that, given the lead time involved, it can be inferred that pricing is based on a single anticipated royalty.
[29]Ibid [26]-[27].
PLA contends that the unexpected levying of a double royalty would create a substantial risk of irreparably harming trade between the United States and Chile, including by deterring exports from Chile to the United States and by straining or destroying PLA’s current relationships with Chilean exporters.
APAL’s response is to assert that although it will obtain a royalty from the issuing of an export licence from Chile, PLA is free to charge any licence fee or import royalty in the USA which it chooses to impose, the commerciality of that fee being a matter for PLA.
We agree. The importation fee is within PLA’s hands to control. There was no evidence of the quantum of the specific import fee currently imposed by PLA or of the sum of the export royalty proposed by APAL. However, it can be inferred that whatever sum APAL negotiated for its export royalty, it would be within PLA’s control to reduce its import royalty proportionately. While this would cause a loss to PLA by means of a reduction in an income stream, this is a loss that is clearly measureable in money; it is not an irreparable loss. It is a loss that could be met by damages, if necessary, depending upon the outcome of the appeal in the High Court, if special leave is granted.
PLA submits that it is possible that if it were to reduce its import fee the discount may not be passed on to an exporter, with the effect that the exporter may have to pay an export royalty for the first time. This may, in turn, lead to the exporter looking for alternative trade routes. The submission highlights the speculative nature of the propositions for which PLA argues. It also highlights the lack of evidence about features of the market, in particular, whether export licences to other territories carry no export royalty. There is a lack of evidence with respect to the choices exporters could realistically make. In those circumstances, this Court is not in a position to draw an inference, which it could be confident was sound, that the market would be disrupted in the manner postulated by PLA.
We reject PLA’s submissions based upon the prejudice it would suffer in the event of the imposition of a royalty at both the export and import stages of trade between Chile and the United States.
With respect to the prejudice that APAL alleges would flow from the making of the second order, we note that the second order is cast in terms of restraining APAL from taking any steps to prevent PLA from issuing Brand Export Licences under the PINK LADY trademarks in Chile in relation to exports to, inter alia, the United States. It appears that APAL understands the steps it would be restrained from taking as including issuing licences in Chile for export to the United States. It submits that it would thus be unable to derive royalty income from such exporters. At first sight, this may also seem to be a simple monetary loss and not a form of irreparable damage. There is nevertheless the difficulty that, given that PLA does not generally charge a royalty to exporters in Chile, APAL’s loss would not be measurable by reference to the royalties obtained by PLA. While this may not suffice to amount to an irreparable loss, the difficulty in calculation is nevertheless a matter to be taken into account. APAL also points to the need to resolve the continuing uncertainty concerning the ownership of PINK LADY trademarks in Chile if APAL is not permitted to issue export licences in Chile to all exporters.
Given our rejection of PLA’s submissions on the prejudice it would suffer if the second order is not made, we do not consider that the balance of convenience favours PLA, especially in light of the difficulties that would be faced by APAL in quantifying its loss if it is unable to issue export licences from Chile and special leave is refused, or if special leave is granted but the appeal is dismissed. We are mindful of the caution adopted by this Court on the grant of interlocutory relief in this context and consider that, if it is necessary to establish exceptional circumstances, that requirement has not been satisfied here.
Undertaking as to damages
Given that we dismissed PLA’s application, it is unnecessary to address in any detail the question of the usual undertaking as to damages.
PLA indicated that Lynnell Brandt, his wife, Marcia Brandt, and PLA would each give the usual undertaking as to damages. The Court, and APAL, were provided with a confidential exhibit to Ms Arslan’s affidavit, which sets out the assets and liabilities of Lynnell and Marcia Brandt. APAL took issue with the detail and completeness of that material.
APAL’s further response was to note that PLA has no Australian presence, nor any Australian property. Mr Brandt owns no property in Australia. This meant that the enforcement of any promise would involve a foreign court, with attendant difficulty. APAL submitted that, in those circumstances, it had strong reservations about PLA’s ability to give a meaningful undertaking as to damages.
In response Mr Wise, on behalf of PLA, offered to provide, if the second order were to be granted, a bank guarantee with a limit of A$150,000 (about equivalent to US$100,000). This was said to equate roughly to the likely loss that APAL might suffer from not being able to issue Brand Export Licences in Chile for about a year.
In the circumstances, we considered the offer of an undertaking as to damages to be meaningful. Nevertheless, as PLA had been unable to satisfy this Court that the second order should be granted, the question of the cogency of the undertaking was not decisive.
Conclusion
In the light of the undertakings given to the Court on 6 February 2017, and because we considered that it was unnecessary for the third order to be made with respect to PLA, we declined to make the first and third orders sought. For the reasons we have given, we also refused to make the second order as we do not consider it appropriate for an interlocutory injunction in those terms to be granted.
The application was dismissed.
- - -
3
6
0