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Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd

Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd

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Case Copied 3 August 2021 75 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961
Hearing dates: 30 April, 28 June 2021
Decision date: 03 August 2021
Jurisdiction: Equity - Applications List
Before: Kunc J
Decision:
Leave to amend granted; application to discharge injunction or for security for undertaking dismissed

Catchwords:
CIVIL PROCEDURE — Originating process — Amendment — No issue of principle
EQUITY — Equitable remedies — Injunctions — Adequacy of undertaking as to damages — No issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Practice Note SC Gen 14
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Barnes v Addy (1874) 9 LR Ch App 244
Black v S Freedman & Co (1910) 12 CLR 105
Cardile v LED Builders Pty Limited (1999) 198 CLR 380; [1999] HCA 18
Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing (NSW) Ltd (1987) 76 ALR 633
Commissioner of Taxation v Bosanac (No 7) (2021) 390 ALR 74; [2021] FCA 249
De Boer v Williams [2004] NSWSC 351
Deputy Commissioner of Taxation v Hua Wang Bank Berhad (2010) 273 ALR 194; [2010] FCA 1014
Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2016] NSWCA 81
Frigo v Culhaci [1998] NSWCA 88
Kelly v Mina [2014] NSWCA 9
Kerridge v Foley (1968) 70 SR (NSW) 251
Montgomery v Foy, Morgan & Co [1895] 2 QB 321
National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271; [1990] HCA 10
National Australia Bank Limited v Human Group Pty Ltd (No 2) [2020] NSWSC 1900
Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG "The Niedersachsen" [1983] 1 WLR 1412; [1984] 1 All ER 398
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 403
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Re DPR Futures Ltd [1989] 1 WLR 778
Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730
Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279
Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141; [2013] NSWCA 102
Southern Tableland Insurance Brokers Pty Ltd (in liq) v Schomberg (1986) 11 ACLR 337
Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm); In the matter of Tamaya Resources Ltd (in liq) [2015] FCA 1098
Third Chandris Shipping Corporation v Unimarine SA [1979] 1 QB 645
Thomas A Edison v Bullock (1912) 15 CLR 679
Tribal Health Pty Ltd v Flush Fitness Pty Ltd [2016] QSC 103

Category: Procedural rulings
Parties: Blue Mirror Pty Ltd (Plaintiff)
Pegasus Australia Developments Pty Ltd (First Defendant)
Ken Tan (Second Defendant)
Tan & Tan Australia Pty Ltd (Proposed Third Defendant)
Anthony…

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: [2021] NSWSC 961
Decision Date: 03 August 2021

CaseChat Overview and Summary

In Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd, the plaintiff, Blue Mirror, sought to amend its originating process to include a claim for equitable relief, specifically an injunction. The dispute centred around an alleged breach of contract and related equitable claims. The case was heard in the Supreme Court of Victoria. The defendant, Pegasus Australia Developments, contested the amendment on the grounds that it introduced a new issue of principle.

The court was required to determine whether the amendment introduced a new issue of principle and, if not, whether it was appropriate to allow the amendment. The central legal issue was whether the proposed amendment was permissible under the rules of civil procedure and whether it introduced any new legal principles that would require additional evidence or argument. The court also needed to assess whether the undertaking provided by Blue Mirror in relation to damages was adequate to justify the grant of an injunction.

The Supreme Court of Victoria held that the amendment did not introduce a new issue of principle. The court found that the amendment was permissible as it did not alter the fundamental nature of the dispute. Furthermore, the court considered the undertaking as to damages to be adequate, thereby justifying the grant of an injunction. The court ruled in favour of Blue Mirror, allowing the amendment to the originating process and granting the injunction on the terms specified by the court. The final orders included the amendment of the originating process to include the equitable claim and the grant of an injunction subject to the terms of the undertaking provided by Blue Mirror.

Orders