DBL Space Pty Ltd v Clynder Pty Ltd - [2022] QSC 193

SUPREME COURT OF QUEENSLAND

CITATION:

DBL Space Pty Ltd v Clynder Pty Ltd [2022] QSC 193

PARTIES:

DBL SPACE PTY LTD

Applicant/Plaintiff

v

CLYNDER PTY LTD

Respondent/Defendant

FILE NO/S:

SC 708 of 2021

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court of Queensland

at Cairns

DELIVERED EX-TEMPORE ON:

24 August 2022

DELIVERED AT:

Cairns

HEARING DATE:

24 August 2022

JUDGE:

Henry J

ORDERS:

Upon the plaintiff and Laurence Simon Lindner giving the usual undertaking as to damages and also upon the plaintiff and Laurence Simon Lindner undertaking to not sell, diminish the value of (excluding diminution in value in consequence of normal use in the normal course of the plaintiff’s business), or otherwise further encumber any of the plant and equipment listed in Schedule A to this order until judgment or further order, the order of the court is that:

1.   The application is granted subject to the parties being heard as to the form of order governing the transition of possession of the plant and equipment at 9am 26 August 2022, unless the parties reach agreement on the form of order in the meantime.

2.   Until judgment or further order, the defendant is restrained from selling, exchanging, trading, auctioning or otherwise encumbering any of the items of plant and equipment listed in Schedule A to these orders.

3.   Costs reserved.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – BALANCE OF CONVENIENCE GENERALLY – where the applicant is the plaintiff in a claim before the court relating to the performance of a construction contract – where the plaintiff claims over $4 million for works done and materials supplied – where the defendant took completion of the construction out of the plaintiff’s hands because of an alleged breach of contract – where the plaintiff still has plant and equipment on the site – where the plaintiff has been denied access to the site and the plant and equipment is exposed to the elements on the site – where the plaintiff applies for interlocutory relief to recover the plant and equipment – where a clause of the contract empowers the defendant to sell the plant and equipment to satisfy any unpaid debts after a particular procedure – whether granting the injunction is on the balance of convenience – whether the defendant would lose its contractual rights by granting the injunction

BAILMENTS – PARTICULAR BAILMENTS – PLEDGE – WHEN NOT CREATED – where a clause of the contract empowers the defendant to sell the plant and equipment to satisfy any unpaid debts after a particular procedure – where the defendant submitted this is a pledge – where the plaintiffs submitted this is a contractual lien – where there was no act of bailment or delivery up of the plant and equipment – whether the contractual right created was in the nature of a lien – whether the defendants would lose their right to relief if interlocutory relief is granted

Inglis v Commonwealth Trading Bank of Australia (1971)…

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: [2022] QSC 193
Decision Date: 24 August 2022

CaseChat Overview and Summary

DBL Space Pty Ltd commenced proceedings against Clynder Pty Ltd in the Supreme Court of New South Wales, seeking over $4 million for works done and materials supplied under a construction contract. The defendants took completion of the construction out of the plaintiff’s hands, allegedly due to a breach of contract. The plaintiff still has plant and equipment on the site, which is exposed to the elements, and has been denied access to the site. The plaintiff applied for an interlocutory injunction to recover the plant and equipment.

The court considered whether the balance of convenience favoured granting the interlocutory injunction and whether granting the injunction would deprive the defendants of their contractual rights. The court also considered whether the defendants’ right to sell the plant and equipment to satisfy any unpaid debts after a particular procedure amounted to a pledge or a contractual lien. The court found that the defendants did not have an act of bailment or delivery up of the plant and equipment, and the contractual right created was in the nature of a lien.

The court granted the application for interlocutory relief, subject to the parties being heard as to the form of order governing the transition of possession of the plant and equipment. The defendants were restrained from selling, exchanging, trading, auctioning or otherwise encumbering any of the items of plant and equipment listed in Schedule A to the orders. The court reserved costs.

This case highlights the importance of considering the balance of convenience when granting interlocutory relief and the need for careful drafting of contractual provisions regarding the sale of plant and equipment. The court's decision provides guidance on the nature of the contractual right created and the circumstances in which an interlocutory injunction may be granted to recover plant and equipment on a construction site.

Orders

Orders of the court

Upon the plaintiff and Laurence Simon Lindner giving the usual undertaking as to damages and also upon the plaintiff and Laurence Simon Lindner undertaking to not sell, diminish the value of (excluding diminution in value in consequence of normal use in the normal course of the plaintiff’s business), or otherwise further encumber any of the plant and equipment listed in Schedule A to this order until judgment or further order, the order of the court is that:

1. The application is granted subject to the parties being heard as to the form of order governing the transition of possession of the plant and equipment at 9am 26 August 2022, unless the parties reach agreement on the form of order in the meantime.

2. Until judgment or further order, the defendant is restrained from selling, exchanging, trading, auctioning or otherwise encumbering any of the items of plant and equipment listed in Schedule A to these orders.

3. Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	DBL Space Pty Ltd v Clynder Pty Ltd [2022] QSC 193
PARTIES:	DBL SPACE PTY LTD Applicant/Plaintiff v CLYNDER PTY LTD Respondent/Defendant
FILE NO/S:	SC 708 of 2021
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Cairns
DELIVERED EX-TEMPORE ON:	24 August 2022
DELIVERED AT:	Cairns
HEARING DATE:	24 August 2022
JUDGE:	Henry J
ORDERS:	Upon the plaintiff and Laurence Simon Lindner giving the usual undertaking as to damages and also upon the plaintiff and Laurence Simon Lindner undertaking to not sell, diminish the value of (excluding diminution in value in consequence of normal use in the normal course of the plaintiff’s business), or otherwise further encumber any of the plant and equipment listed in Schedule A to this order until judgment or further order, the order of the court is that: 1. The application is granted subject to the parties being heard as to the form of order governing the transition of possession of the plant and equipment at 9am 26 August 2022, unless the parties reach agreement on the form of order in the meantime. 2. Until judgment or further order, the defendant is restrained from selling, exchanging, trading, auctioning or otherwise encumbering any of the items of plant and equipment listed in Schedule A to these orders. 3. Costs reserved.
CATCHWORDS:	EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – BALANCE OF CONVENIENCE GENERALLY – where the applicant is the plaintiff in a claim before the court relating to the performance of a construction contract – where the plaintiff claims over $4 million for works done and materials supplied – where the defendant took completion of the construction out of the plaintiff’s hands because of an alleged breach of contract – where the plaintiff still has plant and equipment on the site – where the plaintiff has been denied access to the site and the plant and equipment is exposed to the elements on the site – where the plaintiff applies for interlocutory relief to recover the plant and equipment – where a clause of the contract empowers the defendant to sell the plant and equipment to satisfy any unpaid debts after a particular procedure – whether granting the injunction is on the balance of convenience – whether the defendant would lose its contractual rights by granting the injunction BAILMENTS – PARTICULAR BAILMENTS – PLEDGE – WHEN NOT CREATED – where a clause of the contract empowers the defendant to sell the plant and equipment to satisfy any unpaid debts after a particular procedure – where the defendant submitted this is a pledge – where the plaintiffs submitted this is a contractual lien – where there was no act of bailment or delivery up of the plant and equipment – whether the contractual right created was in the nature of a lien – whether the defendants would lose their right to relief if interlocutory relief is granted Inglis v Commonwealth Trading Bank of Australia (1971)…