BENNETT -v- INDOOR HOLDINGS PTY LTD [2006] WASCA 265

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 265
Court:	THE COURT OF APPEAL (WA)	Published:	05/12/2006
Case No:	CACV:88/2006	Heard:	19 SEPTEMBER 2006
Coram:	PULLIN JA BUSS JA	Delivered:	26/09/06
No of pages:	34	Judgment Part:	1 of 1
Result:	Appeal allowed in relation to costs Appeal otherwise dismissed
Category:	B
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Parties:	PETA JANE BENNETT INDOOR HOLDINGS PTY LTD (ACN 009 355 971)
Catchwords:	Appeal Whether learned Judge erred in granting interlocutory injunction restraining appellant from using a particular business name Turns on own facts Costs Interlocutory injunction Whether costs should have been ordered to be in the cause
Legislation:	Business Names Act 1962 (WA), s 5(1) Supreme Court Act 1935 (WA), s 60(1)(f)(ii)
Case References:	Australian Associated Motor Insurers Ltd v Australian Automotive Motor Inspection Centre Pty Ltd (2003) 60 IPR 92 Australian Broadcasting Corporation v O'Neill (2006) 80 ALJR 1672 Australian Postal Corporation v Gray (1989) 98 FLR 468 Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 House v The King (1936) 55 CLR 499 OD Transport v Western Australian Government Railways Commission (1986) 13 FCR 270 Parfums Christian Dior (Aust) Pty Ltd v Dimmeys Stores Pty Ltd (1997) 39 IPR 349 Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 33 FLR 294 Virgin Enterprises Ltd v Virgin Star Pty Ltd (2005) 67 IPR 557 Whelan Rentals Pty Ltd v Australian Building Construction Employees' & Builders Labourers' Federation (1983) 46 ALR 339 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Cayne v Global Natural Resources [1984] 1 All ER 225 Heywood v BDC Properties Ltd [1963] 2 All ER 1063 The State of Western Australia v Bond Corp Holdings Ltd (1991) 5 WAR 40 Wilson v Metaxas [1989] WAR 285 Woodford v Smith [1970] 1 All ER 1091 World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BENNETT -v- INDOOR HOLDINGS PTY LTD [2006] WASCA 265 CORAM : PULLIN JA

BUSS JA

HEARD : 19 SEPTEMBER 2006 DELIVERED : 26 SEPTEMBER 2006 PUBLISHED : 5 DECEMBER 2006 FILE NO/S : CACV 88 of 2006 BETWEEN : PETA JANE BENNETT

Appellant

AND

INDOOR HOLDINGS PTY LTD (ACN 009 355 971)

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : TEMPLEMAN J

File No : CIV 1664 of 2006

Catchwords:

Appeal - Whether learned Judge erred in granting interlocutory injunction restraining appellant from using a particular business name - Turns on own facts

(Page 2)

Costs - Interlocutory injunction - Whether costs should have been ordered to be in the cause

Legislation:

Business Names Act 1962 (WA), s 5(1)

Supreme Court Act 1935 (WA), s 60(1)(f)(ii)

Result:

Appeal…

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: [2006] WASCA 265
Decision Date: 26 SEPTEMBER 2006

CaseChat Overview and Summary

Bennett sought an interlocutory injunction against Indoor Holdings, seeking to restrain the latter from using a specific business name. The case was heard in the Supreme Court, where the learned judge granted the injunction and ordered costs to be paid by the appellant. Bennett appealed the decision on two grounds: firstly, that the learned judge had erred in granting the interlocutory injunction, and secondly, that the costs should not have been ordered to be in the cause.

The court examined whether the learned judge's decision to grant the interlocutory injunction was correct. It was noted that interlocutory injunctions are not to be granted as a matter of course, but rather when the applicant demonstrates a serious question to be tried and that the balance of convenience favours the granting of the injunction. The court found that the learned judge had applied the correct principles and that the decision to grant the injunction was not erroneous.

Regarding the costs, the court found that the learned judge had misapplied the principles of costs in interlocutory applications. The court held that, in such cases, costs should not be awarded to the applicant unless there are exceptional circumstances. The court found that no such circumstances existed in this case, and therefore the learned judge had erred in ordering costs to be in the cause.

The appeal was allowed in relation to the costs, but dismissed in all other respects. The interlocutory injunction granted by the learned judge was upheld, while the order for costs was set aside. This decision highlights the importance of correctly applying the principles of costs in interlocutory applications and the need for careful consideration of the balance of convenience when granting interlocutory injunctions.

Orders

Orders of the court

Appeal allowed in relation to costs

Appeal otherwise dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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