Elders Ced Ltd v Zanex Ltd - [1986] FCA 458

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FOR LIMITED DISTRIBUTION

CATCHWORDS

Trade Practices -

Misleading or deceptlve conduct

- Appllcatlon for

mterlocu@y

~ n ~ u n c t l o n s

- Statements

made

report

concerning

operation and terminatlon

of a mine management agreement.

Trade Practlces Act 1974, S . 52

ELDERS CED LIMITED and ELDERS RESOURCES LIMITED v.	Z A N M LIMITED and
PETER JOHN STERLING G270 of 1986
LOCKHART J. SYDNEY
22 JULY 1986

FEDERAL COURT OF

PRINCIPAL

FOR LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRLIA )

)

NEW SOUTH WALES DISTRICT REGISTRY

No. G270 of 1986

DIVISION	GENERRL	)
ELDERS CED LIMITED

First Applicant

ELDERS RESOURCES LIMITED

Second Applicant

ZANM LIMITED

First Respondent

PETER JOHN STERLING

Second Respondent

MINUTE OF

ORDER

JUDGE MAKING ORDER:	LOCKHART J.
WHERE ORDER MADE:	SYDNEY
DATE OF ORDM:	22 JULY 1986
THE COURT ORDERS THAT:

Upon

the

appllcants,

their

counsel,

giving

the

usual

undertaklng as to damages, the injunctions granted on 17 July

1986 shall be continued until the hearing of the proceeding

or further order, save that paragraph l(a)(B) of the

applicatlon 1s amended

so that the date of the agreement

between the First Applicant and the First Respondent reads	14
February 1985.

2 .	The costs of the proceeding today shall	be the applicant's
costs in the proceedlngs.

NOTE:	Settlement and entry of orders is dealt with in Order	36	of
the Federal Court Rules.

FOP LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRLIA

)

N E W SOUTH WALES DISTRICT REGISTRY

)

No.

G 2 7 0

of 1986

GENERAL DIVISION

ELDERS CED LIMITED

Flrst Applicant

ELDERS RESOURCES LIMITED

Second Applicant

ZANEX LIMITED

Flrst Respondent

PETER

J O H N STERLING

Second Respondent

3 2 JULY 1986

REASONS FOR JUDGMENT

LOCKHART J.

This is an application for Interlocutory

in~unctive

relief by

two companles, Elders CED Limited ("Elders

CED") and Elders Resources

Llmited. They seek to restrain Zanex Llmited

("Zanex")

and Peter John

Sterling, the chalrman

of the board of directors

of Zanex from, In

essence, making statements orally or In writing to the effect that

Zanex terminated a management agreement between Elders

C D

and Zanex,

and further, from stating that that agreement was terminated on

account of the alleged breach by Elders CED of that agreement or Some

L .

fault, act or omission on its part or on the part of Elders Resources

Llmited.

The proceedings were commenced recently and came

first before

the Court last week, namely

17 July, and after

brief hearing,

granted lnjunctlons operative until and includlng today.

The relevant facts for present purposes may

briefly

stated.

The

applicants

carry

the

business

providmg

administrative management and technical advice and assistance in

connection with the exploration =and development of mineral deposits.

The appllcants are responsible for the management of a large number of

mining pro~ects.

They

are

substantlal

ventures

into

whlch

some

bllllons of

dollars have been or will be invested. Most

the

cQmpanles whlch…

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: [1986] FCA 458
Decision Date: 22 Jul 1986

CaseChat Overview and Summary

Elders CED Limited and Elders Resources Limited sought interlocutory injunctions against Zanex Limited and Peter John Sterling, the chairman of the board of directors of Zanex, to prevent them from making statements regarding the termination of a mine management agreement. The applicants argued that the statements, particularly those in a quarterly report, were misleading and deceptive, and thus in breach of the Trade Practices Act 1974. The court was required to decide whether the applicants had established a prima facie or seriously arguable case under Section 52 of the Trade Practices Act and whether the balance of convenience favoured granting the injunctions.

Lockhart J considered the evidence and found that the applicants had made out a strong case. The quarterly report implied that Zanex terminated the management agreement due to problems with Elders CED, which was not the case. The court noted that the shareholders of Zanex were planning a meeting to discuss the management agreement, and there was a real threat of a repetition of the conduct complained of. Lockhart J rejected the argument that the defamation principles should apply, finding that the case was not a defamation case but one under Section 52 of the Trade Practices Act. The possibility of damage to the applicants if the conduct was repeated led the court to grant the relief sought.

The court ordered that the interlocutory injunctions granted on 17 July 1986 be continued until the hearing of the proceeding or further order, with a specific amendment to the date of the agreement. The costs of the proceeding were to be the applicants' costs in the proceedings.

Orders