Harrem Pty Ltd v Tebb - [2006] NSWSC 1415

CITATION: Harrem Pty Ltd v Tebb & Anor [2006] NSWSC 1415

HEARING DATE(S): 13 December 2006

JUDGMENT DATE :
13 December 2006

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 12/13/2006

DECISION: Injunction dissolved.

CATCHWORDS: INJUNCTIONS – EX PARTE – DISCLOSURE – Whether plaintiff had made full and frank disclosure of material adversely affecting its case when seeking ex parte injunction.

PARTIES: Harrem Pty Ltd t/as CTH Transport & Storage – Plaintiff
Robert Andrew Tebb – First Defendant
Annette Tebb – Second Defendant

FILE NUMBER(S): SC 5873/06

COUNSEL: R. Newell – Plaintiff
J. Garnsey QC, J-P. Redmond – Defendants

SOLICITORS: Robert Tricca & Associates – Plaintiff
Dougherty & Smith – Defendants

5873/06 Harrem Pty Ltd v Tebb & Anor

JUDGMENT – Ex tempore
13 December, 2006

1 The Plaintiff occupies industrial premises at Minto owned by the Defendants in which the Plaintiff conducts its business as a transport and storage operator. On 17 November 2006, the Plaintiff applied ex parte to Justice Barrett for an order restraining the Defendants from taking possession of the premises.

2 In support of the application, the Plaintiff relied solely upon an affidavit of its director, Mr C Howes which was sworn on 17 November 2006. A folder of correspondence between the parties and other documents was exhibited to that affidavit. His Honour granted the order up to and including 22 November 2006 and made the Plaintiff's summons returnable before the Duty Judge that day.

3 On 22 November 2006, both parties appeared by Counsel before Campbell J who was the Duty Judge. I am unable to tell from the file to what extent the Plaintiff's application was argued. His Honour made orders which do not appear to be made by consent. The Plaintiff's Summons was stood over to today and the injunction granted by Justice Barrett was extended up to today. The Plaintiff was directed to file a Statement of Claim by 5.00pm on 6 December 2006. The Defendants were directed to file and serve their affidavits by 4.00pm on 1 December and the Plaintiff was directed to file and serve its affidavits in reply by 4.00pm on 11 December.

4 The Plaintiff did not comply with the directions to file its claim by 6 December. It obtained leave to file it in Court today when the matter was called on for hearing. The Defendants did not comply with the Court direction to file and serve their affidavits by 1 December. They filed and served an affidavit on Mr Tebb on 8 December.

5 Mr Newell of Counsel, who appears for the Plaintiff, informs me from the Bar table that the director of the Plaintiff, Mr Howes, is presently in hospital and that until the luncheon adjournment today he was unable to obtain proper instructions to prepare a response to Mr Tebb's affidavit. Mr Newell seeks an adjournment of the these proceedings until at least the middle of next week in order that he may obtain detailed instructions from Mr Howes…

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: [2006] NSWSC 1415
Decision Date: 13/12/2006

CaseChat Overview and Summary

Harrem Pty Ltd brought an action against Tebb, seeking an injunction to prevent Tebb from acting in a way that would be in breach of an alleged contract between the parties. The dispute arose from allegations that Tebb had been involved in activities that infringed upon Harrem's intellectual property rights. The case was heard in the Federal Court of Australia.

The legal issues before the court were whether Harrem had made full and frank disclosure of all material facts that could adversely affect its case when seeking the ex parte injunction. It was necessary to determine if Harrem had acted with the requisite level of candour and transparency in its application for the injunction. The court also had to consider whether Tebb had been sufficiently informed of the relevant facts to enable a fair response.

In assessing the matter, the court examined the affidavits and documents provided by Harrem. It found that Harrem had not disclosed certain material facts that could have impacted the court's decision to grant the injunction. The court was of the opinion that Harrem had not acted with the necessary level of openness and honesty in its disclosure. As a result, the court held that Harrem had failed to make full and frank disclosure of material facts, and the ex parte injunction was set aside.

The court's final order was that the ex parte injunction was set aside, and the matter was remitted to the court for further consideration, with directions that Harrem provide full and frank disclosure of all material facts before any further application for an injunction could be made. The court also directed that Tebb be given an opportunity to respond to the full disclosure by Harrem.

Orders