Corporation of the City of Adelaide v Qzak Sales No. DCCIV-99-1010 Judgment No. D122

[1999] SADC 122

THE CORPORATION OF THE CITY OF ADELAIDE

-v-
QZAK SALES PTY LTD
[1999] SADC D122

Judge Anderson
Civil

1 On 22 July 1999 Noblet DCJ, upon the application of the Plaintiff and after hearing submissions, granted an interlocutory injunction restraining the Defendant from undertaking a course of action of which it had advised the Plaintiff.
2 The order with injunction was made upon the Plaintiff providing an undertaking as to damages in the usual form to the Court.  Because of the urgency of the issues between the parties, the matter has been listed for trial on 4 November 1999.
3 On 27 August 1999 the Defendant applied to have the orders of 22 July 1999 dissolved.  It sought that they only survive if the director of the Plaintiff, Mr Browne, proffer his personal undertaking in lieu of that given and accepted on 22 July 1999.
4 The papers filed in support of the application show that the Defendant initially made such a request to the Plaintiff’s solicitors on 6 August 1999.  The request was rejected and hence the application.
5 On the assumption that the Defendant does not seek, in effect, to appeal the initial order by this application, I heard the submissions of counsel on 13 September 1999.  Mr White appeared for the Applicant and Mr Wells QC for the Respondent.
6 The application was predicated upon the Court’s power to supervise its own proceedings and to ensure that its orders are not, nor become, worthless. Mr White relied upon some remarks of Mullighan J in Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd & Ors (1991) 56 SASR 515 @ 520-521.
7 The essence of the Applicant’s position is that the Plaintiff was a two dollar company, and as the initial negotiations were undertaken with Mr Browne personally, it was he who should pay the "price" of the injunctive orders with his personal guarantee.  Hence, the Court should require him to offer such an undertaking failing which the orders of 22 July 1999 should be dissolved.
8 The Applicant maintained that there was a real risk, should the Plaintiff not be successful at trial, that it would suffer damage and so would look to the undertaking.
9 It was suggested that there were two bases upon which such damage may be sustained.  Firstly, because these proceedings are delaying the Applicant’s plans for redevelopment of the golf course and club house and that delay may cause loss to the Applicant.  Secondly, that monies continued to be paid by the Applicant to the Plaintiff pursuant to agreements preserved by virtue of the orders of 22 July 1999 will be recoverable should the Plaintiff fail in its action.
10 The first basis more or less collapsed under its own weight when put by Mr White.  There is no positive approved plan for this redevelopment and there has been no consultation with the Applicant’s constituents.  It is almost impossible presently to see any basis for such an award of damages.
11 The second basis quite overlooks that the Applicant would, in any event, be paying someone something to do what the Plaintiff now does.  Any damage would only be if another person would be paid less and, even though the Applicant apparently has such a person contracted, no evidence about any likely loss is contained in the papers.  At this time there is little weight in this aspect of the Applicant’s position.
12 More importantly, however, is that the information upon which the Applicant here relies was available to it prior to 22 July 1999.  Its discovered documents reveal that it has an ASIC company extract relating to the Plaintiff, dated 21 April 1999, in its possession and presumably has had since that day.
13 Whatever supervisory jurisdiction the Court has in relation to orders such as those made on 22 July 1999 will not be exercised to allow parties to go over old ground where the topic was available to be canvassed before the orders were made.  In my opinion, that much is clear from Remm.  In addition, one may have suspicion as to the motive in bringing such an application which uses up valuable resources, so close to trial.
14 The application is refused.  The Plaintiff is to have its costs.  Certified fit for senior counsel.