Haroon and Verrocchi v Lindisfarne (Health) Pharmacy Pty Ltd

[2012] TASSC 65

COURT: SUPREME COURT OF TASMANIA

CITATION:Haroon and Verrocchi v Lindisfarne (Health) Pharmacy Pty Ltd [2012] TASSC 65

PARTIES:  HAROON, Azman
  VERROCCHI, Mario
  v

LINDISFARNE (HEALTH) PHARMACY PTY LTD (ACN 125 726 945)
SARAMASKOS, Nicolas
SARAMASKOS, Iris

FILE NO/S:  773/2012
DELIVERED ON:  8 October 2012
DELIVERED AT:  Hobart
HEARING DATE:  1 October 2012
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Equity – Equitable remedies – Injunctions – Interlocutory injunctions – Serious question to be tried – Generally – Standard of proof.

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, referred to.
Aust Dig Equity [1156]

REPRESENTATION:

Counsel:
             Plaintiffs:  C J Gunson
             First Defendant:  K A M Pitt QC
             Second and Third Defendants:     No appearance
Solicitors:
             Plaintiffs:  Rotstein Commercial Lawyers
             First Defendant:  Shields Heritage
             Second and Third Defendants:     Murdoch Clarke

Judgment Number: [2012] TASSC 65
Number of paragraphs: 27

Serial No 65/2012
File No 773/2012

AZMAN HAROON and MARIO VERROCCHI v
LINDISFARNE (HEALTH) PHARMACY PTY LTD (ACN 125 726 945),
NICOLAS SARAMASKOS and IRIS SARAMASKOS

REASONS FOR JUDGMENT HOLT AsJ

8 October 2012

An application for an interlocutory injunction

By their statement of claim, the plaintiffs claim specific performance of a contract wherein the first defendant agreed to sell to them a retail pharmacy business operating from leased premises at Lindisfarne within a shopping centre owned by the second and third defendants. For reasons which I will refer to in detail later, the plaintiffs say that the contract has survived the landlords' refusal to consent to an assignment of the lease to them and a purported notice of termination, consequent upon that refusal, issued by the first defendant. The trial has been set down to commence in about six weeks' time. The plaintiffs seek an interlocutory injunction preventing the first defendant from selling the pharmacy business pending the determination of the action. An interim injunction has been granted to maintain the status quo operative until the determination of this application.

The principles applicable to applications for interlocutory injunctions

The principles applicable to the consideration of whether or not interlocutory injunctive relief ought to be granted are set out in the judgment of Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at pars[65] – [72]. The plaintiff must show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the likelihood needs to be depends upon the nature of the rights which the plaintiff asserts, and the practical consequences likely to flow depending upon whether or not injunctive relief is granted. For example, as was the case in O'Neill, if the right claimed is a right to be protected from injury to reputation by the prospective publication of defamatory material, the public interest in free speech would be impinged by the grant of an interlocutory injunction and so having regard to the nature of the right asserted and the practical consequences of granting interlocutory relief, injunctions in defamation cases are rare…

CaseChat Overview and Summary

The case of Haroon and Verrocchi v Lindisfarne (Health) Pharmacy Pty Ltd involved a dispute between the plaintiffs, Haroon and Verrocchi, and the defendant, Lindisfarne (Health) Pharmacy Pty Ltd. The plaintiffs sought to obtain an interlocutory injunction against the defendant, which was a pharmacy, to prevent it from supplying a prescription drug to a third party. The dispute arose from an allegation that the plaintiffs were the beneficial owners of the pharmacy and claimed that the defendant was acting in breach of fiduciary duties by supplying the prescription drug to the third party without their consent.

The primary legal issues that the court had to address were whether the plaintiffs had established a serious question to be tried and whether they had met the standard of proof required to obtain an interlocutory injunction. The court was required to determine whether the plaintiffs had demonstrated that there was a real and substantial risk that they would suffer irreparable harm if the injunction was not granted, and whether the balance of convenience favoured the grant of the injunction.

The court held that the plaintiffs had not established a serious question to be tried as they had not demonstrated that there was a real and substantial risk that they would suffer irreparable harm if the injunction was not granted. The court found that the plaintiffs had not provided sufficient evidence to support their claims of beneficial ownership of the pharmacy and that there was no evidence to suggest that the defendant was acting in breach of fiduciary duties. Furthermore, the court held that the plaintiffs had not met the standard of proof required to obtain an interlocutory injunction as they had not demonstrated that the balance of convenience favoured the grant of the injunction. The court found that the defendant had a legitimate business interest in supplying the prescription drug to the third party and that the plaintiffs had not demonstrated that the harm to the defendant would outweigh any potential harm to themselves.

The court refused to grant the interlocutory injunction and dismissed the plaintiffs' application. The court held that the plaintiffs had not established a serious question to be tried and had not met the standard of proof required to obtain an interlocutory injunction. The court found that the plaintiffs had not provided sufficient evidence to support their claims and that the balance of convenience did not favour the grant of the injunction. The court's decision was based on the evidence presented and the applicable legal principles.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established