Aspire Contracting Pty Ltd v Epic Stays Pty Ltd - [2024] QSC 284

SUPREME COURT OF QUEENSLAND

CITATION:

Aspire Contracting Pty Ltd v Epic Stays Pty Ltd [2024] QSC 284

PARTIES:

ASPIRE CONTRACTING PTY LTD trading as FERGUSONS PLUMBING GROUP QLD ACN 658 559 801

(plaintiff)

v
EPIC STAYS PTY LTD ACN 635 744 375

(defendant)

FILE NO:

BS 14981/24

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2024

JUDGE:

Freeburn J

ORDERS:

1. An interlocutory injunction will be granted requiring the defendant to remove the online publications identified in the application, and requiring that the defendant not make any further similar publications (until trial or earlier order).

2. I will hear the parties on the form of the order, directions, and costs.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – where the plaintiff attended the defendant’s premises to provide a quote for plumbing work – where the defendant was unhappy with the quote, and refused to pay the call-out fee – where the plaintiff contends that the defendant signed a contract with a non-disparagement clause to waive the call-out fee – where the defendant posted negative reviews of the plaintiff – where the plaintiff seeks an interlocutory injunction for the defendant to take down posts, and not post similar posts – whether the criteria for an interlocutory injunction has been satisfied

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – UNFAIR CONTRACT TERMS – where the defendant contends that the plaintiff has a very weak prima facie case on the basis that the non-disparagement clause is void as an unfair contract term – whether there is a high probability that the non-disparagement clause is an unfair contract term

Competition and Consumer Act 2010 (Cth), sch 2 (Australian Consumer Law), s 23, s 24

Australian Competition and Consumer Commission v CLA Trading Pty Ltd [2016] FCA 377, cited

Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (No 3) [2021] FCA 347, distinguished
Attorney-General v Punch Ltd [2003] 1 AC 1046, cited

Queensland Industrial Steel Pty Ltd v Jensen [1987] 2 Qd R 572, cited

COUNSEL:

M Klooster for the plaintiff

C Templeton for the defendant

SOLICITORS:

New South Lawyers for the plaintiff

Stonegate Legal for the defendant

Introduction

With a fair degree of accuracy, counsel for the defendant, Epic Stays Pty Ltd (Epic), described this dispute as mundane.
The director of Epic is Benjamin Watson-Brown. On 7 September 2023 Mr Watson-Brown had a plumbing issue at a rental property owned or managed by Epic. He telephoned the plaintiff company, Aspire Contracting Pty Ltd trading as Fergusons Plumbing Group Qld (Fergusons) to arrange for a plumber to attend Epic’s property at Newstead.
It is agreed that during this telephone call the Fergusons’ representative advised Mr Watson-Brown that a call-out fee of $38.50 would be charged but that fee would be waived if the works proceeded.
On the following day a Fergusons representative attended the…

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: [2024] QSC 284
Decision Date: 18 November 2024

CaseChat Overview and Summary

Aspire Contracting Pty Ltd initiated legal proceedings against Epic Stays Pty Ltd, seeking relief in the form of an interlocutory injunction. The dispute arose when Aspire attended Epic's premises to provide a plumbing quote. After receiving the quote, Epic refused to pay the call-out fee and subsequently posted negative reviews about Aspire online. Aspire contends that Epic signed a contract with a non-disparagement clause, which was breached by the negative reviews. The court was tasked with determining whether an interlocutory injunction should be granted to compel Epic to remove the posts and refrain from posting similar content.

The legal issues before the court included whether the criteria for an interlocutory injunction had been met, given the urgency and potential for irreparable harm if the negative posts were not removed. Additionally, the court had to consider the enforceability of the non-disparagement clause, particularly in light of Epic's argument that the clause might be void as an unfair contract term under consumer protection legislation. The court had to weigh the balance of convenience and the strength of Aspire's prima facie case against the potential detriment to Epic if the injunction was granted.

In its reasoning, the court found that the urgency and potential for harm to Aspire's business reputation warranted the grant of an interlocutory injunction. The court was satisfied that there was a strong likelihood that the non-disparagement clause was enforceable, and thus, Epic's actions constituted a breach. Consequently, the court granted the injunction, requiring Epic to remove the identified online publications and to refrain from making further similar posts until the trial or any earlier order. The court noted that further hearings would address the form of the order, directions, and costs.

Orders

Orders of the court

1. An interlocutory injunction will be granted requiring the defendant to remove the online publications identified in the application, and requiring that the defendant not make any further similar publications (until trial or earlier order).

2. I will hear the parties on the form of the order, directions, and costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Aspire Contracting Pty Ltd v Epic Stays Pty Ltd [2024] QSC 284
PARTIES:	ASPIRE CONTRACTING PTY LTD trading as FERGUSONS PLUMBING GROUP QLD ACN 658 559 801 (plaintiff) v EPIC STAYS PTY LTD ACN 635 744 375 (defendant)
FILE NO:	BS 14981/24
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	15 November 2024
JUDGE:	Freeburn J
ORDERS:	1. An interlocutory injunction will be granted requiring the defendant to remove the online publications identified in the application, and requiring that the defendant not make any further similar publications (until trial or earlier order). 2. I will hear the parties on the form of the order, directions, and costs.
CATCHWORDS:	EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – where the plaintiff attended the defendant’s premises to provide a quote for plumbing work – where the defendant was unhappy with the quote, and refused to pay the call-out fee – where the plaintiff contends that the defendant signed a contract with a non-disparagement clause to waive the call-out fee – where the defendant posted negative reviews of the plaintiff – where the plaintiff seeks an interlocutory injunction for the defendant to take down posts, and not post similar posts – whether the criteria for an interlocutory injunction has been satisfied TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – UNFAIR CONTRACT TERMS – where the defendant contends that the plaintiff has a very weak prima facie case on the basis that the non-disparagement clause is void as an unfair contract term – whether there is a high probability that the non-disparagement clause is an unfair contract term Competition and Consumer Act 2010 (Cth), sch 2 (Australian Consumer Law), s 23, s 24 Australian Competition and Consumer Commission v CLA Trading Pty Ltd [2016] FCA 377, cited Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (No 3) [2021] FCA 347, distinguished Attorney-General v Punch Ltd [2003] 1 AC 1046, cited Queensland Industrial Steel Pty Ltd v Jensen [1987] 2 Qd R 572, cited
COUNSEL:	M Klooster for the plaintiff C Templeton for the defendant
SOLICITORS:	New South Lawyers for the plaintiff Stonegate Legal for the defendant