FEDERAL COURT OF AUSTRALIA
Bolin Technology Co., Ltd v BirdDog Technology Ltd [2024] FCA 129
File number: VID 58 of 2024 Judgment of: STEWART J Date of judgment: 22 February 2024 Catchwords: PRACTICE AND PROCEDURE – anti-anti-suit injunction – urgency – balance of convenience Legislation: Competition and Consumer Act 2010 (Cth) ss 5(1)(c), 5(1)(g), Sch 2 (Australian Consumer Law)
Goods Act 1958 (Vic), s 58
Sale of Goods (Vienna Convention) Act 1987 (Vic)
United Nations Convention on Contracts for the International Sale of Goods, opened for signature 11 April 1980, 1489 UNTS 3 (entered into force 1 January 1988)
Cases cited: CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; 189 CLR 345
Home Ice Cream Pty Ltd v McNabb Technologies LLC [2018] FCA 1033
Home Ice Cream Pty Ltd v McNabb Technologies LLC (No 2) [2018] FCA 1093
Karpik v Carnival plc [2023] HCA 39; 98 ALJR 45
Karpik v Carnival plc (The Ruby Princess) (Stay Application) [2021] FCA 1082; 157 ACSR 1
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 18 Date of hearing: 22 February 2024 Counsel for the Applicant: D A Hughes Solicitor for the Applicant: King & Wood Mallesons Counsel for the Respondents: The matter was heard ex parte.
ORDERS
VID 58 of 2024 BETWEEN: BOLIN TECHNOLOGY CO., LTD
Applicant
AND: BIRDDOG TECHNOLOGY LIMITED
First Respondent
BIRDDOG AUSTRALIA PTY LTD
Second Respondent
ORDER MADE BY:
STEWART J
DATE OF ORDER:
22 FEBRUARY 2024
PENAL NOTICE
TO: BIRDDOG TECHNOLOGY LIMITED, BIRDDOG AUSTRALIA PTY LTD
IF YOU:
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.THE COURT ORDERS THAT:
1.The applicant has leave to file the interlocutory application and the affidavit of Edwina Mary Kwan dated 22 February 2024 in Court and is directed to do so forthwith.
2.The interlocutory application be returnable immediately.
3.Upon the usual undertaking for damages on behalf of the applicant by its counsel, the respondents be restrained until 5pm on the return date from taking any further step in the proceeding commenced by them against other parties and the applicant in the United States District Court for the Central District of California, or elsewhere in the United States:
(a)To restrain or seek to restrain the hearing of this claim for interlocutory relief, or any other aspect of this proceeding, whether by way of an application for an anti-suit injunction or other form of relief;
(b)To otherwise interfere with the applicant’s claim for relief in…
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- Case
- [2024] FCA 129
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to address included the urgency of the application, the balance of convenience, and whether the applicant had demonstrated a strong prima facie case warranting an interim injunction. The court also considered the principles governing anti-anti-suit injunctions and the appropriate criteria for granting such relief in the circumstances of this case.
The court granted the application, finding that Bolin Technology Co., Ltd had made out a strong case on the merits and that the balance of convenience favoured issuing the injunction. The urgency of the application was underscored by the imminent risk of prejudice to the applicant's rights if the US proceedings continued. The court was satisfied that the applicant had demonstrated a serious question to be tried and that the grant of the injunction would not cause undue hardship to the respondents.
The final orders included immediate returnability of the interlocutory application, restrained the respondents from taking further steps in the US proceeding, and set a timeline for serving the orders and related documents on the respondents. The matter was relisted for further consideration of the injunction's continuation. The court reserved costs and granted liberty to apply on reasonable notice.
Orders
Orders of the court
1. The applicant has leave to file the interlocutory application and the affidavit of Edwina Mary Kwan dated 22 February 2024 in Court and is directed to do so forthwith.
2. The interlocutory application be returnable immediately.
3. Upon the usual undertaking for damages on behalf of the applicant by its counsel, the respondents be restrained until 5pm on the return date from taking any further step in the proceeding commenced by them against other parties and the applicant in the United States District Court for the Central District of California, or elsewhere in the United States:
(a) To restrain or seek to restrain the hearing of this claim for interlocutory relief, or any other aspect of this proceeding, whether by way of an application for an anti-suit injunction or other form of relief;
(b) To otherwise interfere with the applicant’s claim for relief in this proceeding.
4. The applicant is by 7pm on 22 February 2024 to serve on the respondents a copy of these orders, the interlocutory application, the applicant’s written submissions, and the affidavit of Ms Kwan by email to john.kelly@klgates.com and jonathan.chan@klgates.com, the requirements for service of those documents being otherwise abridged.
5. The matter is relisted before the docket judge, Anderson J, at 9:30am on 7 March 2024 in Melbourne or at such other time and place as directed by the docket judge for consideration of whether to continue order 3.
6. These orders to be entered forthwith.
7. Costs reserved.
8. There be liberty to apply on reasonable notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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