Austrak Pty Ltd v John Holland Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION: 

Austrak Pty Ltd v John Holland Pty Ltd [2006] QSC 103

PARTIES: 

AUSTRAK PTY LTD (ABN 72 008 925 031)
(applicant)
v
JOHN HOLLAND PTY LTD (TRADING AS
REGIONAL RAIL LINK) (ABN 11 004 282 268)
(respondent)

FILE NO: 

S3403 of 2006

DIVISION: 

Trial

PROCEEDING: 

Originating application

ORIGINATING 
COURT: 

Supreme Court of Queensland

DELIVERED ON: 

12 May 2006

DELIVERED AT: 

Brisbane

HEARING DATE: 

8 May 2006

JUDGE: 

Chesterman J

ORDER: 

Upon the applicant giving the usual undertaking as to
damages:

1.	the respondent be restrained by itself, its officers, servants, agents or assigns until trial or earlier order from making any demand that HSBC Bank Australia Ltd convert unconditional undertaking no. 11084204 dated 30 March 2005 into money;
2.	the respondent pay to the applicant the sum of $1,804,353.10 by way of bank cheque in exchange for the applicant delivering to the respondent an unconditional undertaking by HSBC Bank Australia Ltd promising to pay the respondent on demand the sum of $1,804,353.10;
3.	the respondent by itself, its officers, servants, agents or assigns until trial or earlier order be restrained from making any demand on HSBC Bank Australia Ltd to convert the said undertaking into money;
4.	the respondent’s cross-application to have the originating application transferred to the Supreme Court of Victoria is adjourned; and
5.	the costs of both applications be reserved.

CATCHWORDS: 

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS –
INTERLOCUTORY INJUNCTIONS – Injunctions to
preserve status quo and property pending determination of
rights – Other matters – where applicant provided first
unconditional undertaking to guarantee performance of
contract – where respondent alleges applicant's performance
was defective – where respondent's right to convert
undertaking subject to implied negative stipulation in contract
– where respondent intimated intention to convert
undertaking – where there is a serious question to be tried as
to respondent's right to convert undertaking – whether
applicant is entitled to interlocutory relief restraining
respondent from converting unconditional undertaking

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – Balance of convenience – where applicant provided second unconditional undertaking – where terms of contract governing right to convert undertaking are in dispute – where respondent converted undertaking – where there is a serious question to be tried as to respondent's right to convert undertaking – where applicant alleges respondent's calling on undertaking will cause irreparable damage to reputation if respondent not required to reimburse applicant for amount of undertaking – where applicant seeks mandatory interlocutory injunction requiring respondent to reimburse applicant for amount of undertaking – whether the balance of convenience favours granting interlocutory relief

Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld), s 5(2)

Abigroup Contractors Pty Ltd v Peninsula Balmain Pty Ltd
(unreported, Supreme Court of New South Wales, Hunter J, 2
December 1999, No. 55034/99), followed
Bachmann Pty Ltd v BHP Power New Zealand Ltd [1999] 1
VR 420, cited
Barclay Mowlem Construction Ltd v Simon Engineering
(Australia) Pty Ltd (1991) 23 NSWLR 451, followed
CS Phillips Pty Ltd…