GS Trading Pty Ltd v Jeong Hyun Lee
[2011] NSWSC 436
•01 April 2011
Supreme Court
New South Wales
Medium Neutral Citation: GS Trading Pty Ltd v Jeong Hyun Lee [2011] NSWSC 436 Hearing dates: 1 April 2011 Decision date: 01 April 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Interim injunction granted to restrain first and third defendants from selling or dealing with chattels located at leased premises.
Catchwords: INJUNCTIONS - interim injunctions - balance of convenience favours preservation of status quo - no prejudice to defendant if injunction granted - need for a sufficiently serious arguable case for injunction to be granted - case merely faintly arguable on current pleadings -revision of pleadings needed to have seriously arguable case - valuation of chattels and fixtures to occur - interim injunction granted pending interlocutory hearing. Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 23.8. Category: Procedural and other rulings Parties: GS Trading Pty Ltd (plaintiff)
Jeong Hyun Lee (first defendant)
Keith Kwon (second defendant)
B.B.Q. City Restaurant (third defendant)Representation: Counsel:
Mr Cohen (plaintiff)
Mr C D Freeman (first and third defendants)
Solicitors:
JN Legal (plaintiff)
Youngs Attorneys (first and third defendants)
File Number(s): 2011/59403
Judgment ( ex tempore )
HIS HONOUR: This is the first return of a notice of motion filed yesterday, claiming an interlocutory injunction restraining the first and third defendants from selling or otherwise dealing with chattels and fixtures acquired, obtained or brought by the plaintiff into premises at xxx xx xxx Liverpool Street, Sydney ('the premises'). In the present circumstances, I propose to treat it as an application for an interim, as distinct from an interlocutory, injunction; that is to say, for an injunction which, if granted, would continue not until the hearing but only for a relatively short defined term, pending a more extensive interlocutory hearing. If I were to treat it as an interlocutory hearing today, the plaintiff would plainly fail on the current state of the evidence.
Dealing with the matter on an interim basis, it seems to me that the balance of convenience plainly favours the grant rather than the withholding of interlocutory relief. No prejudice to the defendants from the subsistence of an injunction for a short period has been identified. Although doubt attends the value of the plaintiff's proffered undertaking as to damages, the significance of that is diminished by the absence of any suggested prejudice to the defendants. On the other hand, failure to grant an injunction would permanently defeat that part of the claim the plaintiff wishes to make as involves return of the goods in question.
The question, then, becomes whether there is a sufficiently seriously arguable case for final relief to justify the grant of an interim injunction, even if for only a few days.
On the face of the statement of claim as it presently stands, there is not. In essence, the statement of claim claims restitutionary and compensatory relief and makes no claim at all in respect of the goods or business in question specifically. So far as it impugns the lease on which the defendants rely for selling the goods, in pleading that it is unconscionable, the matters pleaded in paras 31, 32 and 33 could not of themselves establish a case of unconscionability, let alone in light of the evidence that the plaintiffs were, in respect of the relevant lease, independently legally advised.
It seems to me, however, that there may be an arguable case that, having been paid a bond of $340,000 - which on the evidence at this point has not been returned - the defendants may have been overall in credit as against the plaintiff at the time when the plaintiff purported to terminate the lease. I hasten to add that that is not at this stage pleaded, but the evidence suggests that it is a potential basis upon which the plaintiffs might be entitled to relief.
Secondly - again, although it is not currently pleaded the case of unconscionability might become arguable if there were added to the matters in paras 31, 32 and 33 the circumstances relating to the grant of the first lease, the practical position in which that left the plaintiffs, and the knowledge which might be imputed to the defendants arising from their having apparently selected and nominated their solicitor to act also for the plaintiff in connection with the first lease.
If any of that were to be pleaded, the statement of claim will need considerable revision. The plaintiffs would also need to adduce evidence of their ability to meet the undertaking as to damages, that having been put in issue by the defendants.
I propose, on that basis, and having regard to the overwhelming balance of convenience, to grant an interim injunction for a few days to enable those matters to be considered. It also seems to me that during that period the plaintiff should have access to the premises for the purposes of inspection and valuation of the goods in question, so that their preservation as evidence would cease to be an issue by the time of the interlocutory hearing.
Upon the plaintiff by its counsel giving to the court the usual taking as to damages, I order that the first and third defendants be restrained until Friday, 8 April 2011 from selling or otherwise dealing with all chattels and fixtures acquired, obtained or brought in by the plaintiff to the karaoke bar located at xxx xx xxx Liverpool Street, Sydney.
Pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 23.8, I order that for the purpose of enabling the identification and value of the goods in question in the proceedings, the plaintiff and a chattels valuer authorised by the plaintiff may enter on the premises at xxx xx xxx Liverpool Street, Sydney for a period not exceeding two hours in total between the hours of 9am and 5pm between 5 and 7 April 2011, and upon having given not less than 24 hours' notice in writing to the defendant's solicitors of the time of such inspection.
Costs of the application will be costs in the interlocutory proceeding. I direct that these orders be entered forthwith.
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Decision last updated: 01 June 2011
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