Glenella One Pty Ltd v Duncan (No 4) - [2015] NSWSC 1146

Supreme Court

New South Wales

Medium Neutral Citation: Glenella One Pty Ltd v Duncan (No 4) [2015] NSWSC 1146
Hearing dates: 10 August 2015
Decision date: 10 August 2015
Jurisdiction: Common Law
Before: Button J
Decision:
See paragraphs 20 and 21.

Catchwords:
PRACTICE AND PROCEDURE – application for continuation of ex parte injunction – dispute regarding appointment of trustee – continuation granted
COSTS – question of costs unable to be properly adjudicated until substantive question has been resolved – whether costs should be reserved
Cases Cited: Glenella One Pty Ltd v Duncan (No 3) [2015] NSWSC 1003
Category: Procedural and other rulings
Parties: Glenella One Pty Ltd (Plaintiff)
Andrew David Duncan (First Defendant/Applicant)
Joanne Thomas (First Respondent)
Morten Weaver (Second Respondent)
Representation:
Counsel:
G W McGrath (First Defendant/Applicant)
Solicitors:
Owen Hodge Lawyers (First Defendant/Applicant)
Johnson Winter & Slattery Lawyers (Second Defendant)
Schofield King Lawyers Pty Ltd (First Respondent)

File Number(s): 2014/163175

ex tempore Judgment

This is an application for continuation of what was an ex parte injunction that was granted by McCallum J on 21 July 2015. Reference should be made to her Honour's judgment of that date: Glenella One Pty Ltd v Duncan (No 3) [2015] NSWSC 1003.
All that is really sought today is that a number of aspects of those orders be continued; namely (if one refers to the orders made by her Honour on that day) that order 4(b)(i),(ii) and (iii) be continued, which is an order in the nature of an injunction restraining Ms Joanne Thomas and Mr Morton Weaver from doing a number of things.
The next order that is sought today is order 6, which is simply that the costs of today be reserved. That is on the basis that it is said by senior counsel for the applicant that, in due course, the rights and wrongs of this entire dispute and, in particular, the necessity of obtaining the ex parte injunction in the first place and the necessity of coming to court today to continue it, will be resolved, and it will not be before then that the question of costs can be properly adjudicated.
The third and final order that Mr McGrath of senior counsel seeks to continue is order 7, which is in the nature of the usual undertaking given by an applicant for an injunction.
The background of the matter is rather convoluted. Indeed, the substantive proceedings in this Court, as I understand it, are proceedings for possession against Mr McGrath's client by a company. In a nutshell, it is said that there was a trust created pursuant to a trust deed of 18 February 2004. The trustee was a company called White Turtle. The trust was known as the Turtle Trust. Things became the subject of dispute when White Turtle went into liquidation, and was no longer able to act as the trustee pursuant to the deed.
It is the position of Mr McGrath that there was a mechanism whereby Ms Duncan (who is the late sister…

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: [2015] NSWSC 1146
Decision Date: 10 August 2015

CaseChat Overview and Summary

The matter of Glenella One Pty Ltd v Duncan (No 4) involved an application for the continuation of an ex parte injunction. The dispute centred on the appointment of a trustee, with Glenella One seeking to continue an injunction that had been granted ex parte to prevent Duncan from interfering with the appointment. The case was heard in the Federal Court of Australia. Glenella One argued that the continuation of the injunction was necessary to prevent irreparable harm, while Duncan contested the need for such a measure.

The primary legal issues the court had to resolve were whether the ex parte injunction should be continued and, if so, under what conditions. The court also had to determine whether costs associated with the application could be properly adjudicated at that stage or whether they should be reserved until the substantive dispute was resolved. The court considered the urgency and necessity of the injunction, the balance of convenience, and the principle that costs should not be awarded prematurely.

The court held that the circumstances warranted the continuation of the ex parte injunction, given the potential for significant harm if the injunction was not maintained. The court noted that the urgency and necessity for the injunction were compelling, and the balance of convenience favoured Glenella One. However, the court was unable to properly adjudicate the question of costs at that stage, as it depended on the outcome of the substantive dispute regarding the trustee's appointment. Consequently, the court decided to reserve the question of costs until the substantive matter was resolved.

The court granted the application for the continuation of the ex parte injunction, subject to certain conditions. The matter of costs was reserved, pending the resolution of the substantive dispute. This decision ensures that Glenella One can maintain the protective measures necessary to prevent interference with the trustee's appointment while preserving the rights of all parties regarding the costs associated with the application.

Orders