Highvic Pty Ltd v Quarterback Group Pty Ltd - [2012] QSC 8

SUPREME COURT OF QUEENSLAND

CITATION:

Highvic Pty Ltd & Ors v Quarterback Group Pty Ltd & Anor [2012] QSC 8

PARTIES:

HIGHVIC PTY LTD

(Applicant/First Plaintiff)

AND

BRIAN FRANCIS GEANEY

(Second Plaintiff)

AND

JOHN JOSEPH GEANEY

(Third Plaintiff)

V

QUARTERBACK GROUP PTY LTD

(Respondent/First Defendant)

AND

DARYL JAMES FENNELL

(Second Defendant)

FILE NO/S:

S375/2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

1 February 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

30 January 2012

JUDGE:

McMeekin J

ORDER:

The Applicant to bring in a minute of the Order reflecting these reasons

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS –
INTERLOCUTORY INJUNCTIONS – RELEVANT
CONSIDERATIONS – BALANCE OF CONVENIENCE

GENERALLY – where accountants appointed receivers and managers pursuant to securities – where the resolution of the issues turns on the validity of securities – where there is dispute about who should control the sale and proceeds of land – where if the land was peremptorily sold the potential damages would be difficult to quantify – where the right to exercise the power of sale, the amount of the debt, the amount presently due and owing and the interest payable is in issue – where adequate protection is in issue

Uniform Civil Procedure Rules 1999 r468

American Cyanamid Co v Ethicon Ltd [1975] AC 396

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Chisholm v Reif (1953) 2 FLR 211

Dwyer v Corliss & Anor [2003] QSC 149

Glandore Pty Ltd v Elders Finance and Investment Co Ltd (1984) 4 FCR 130

Harvey v McWatters (1948) 49 SR (NSW) 173

Inglis v Commonwealth Trading Bank (1972) 126 CLR 161

COUNSEL:

AM Arnold for the applicant

DEF Chesterman for the respondent

SOLICITORS:

Johnson Law for the applicant

Nicholsons Solicitors for the respondent

McMeekin J: Highvic Pty Ltd (“Highvic”) has brought two applications for interlocutory injunctions to issue until trial:

(a) to restrain two named accountants from acting as its receiver manager;

(b) to restrain Quarterback Group Pty Ltd (Quarterback) from exercising a claimed power of sale over certain land owned by Highvic.

Quarterback appointed the accountants as the receivers and managers of Highvic pursuant to powers contained in certain securities. The validity of those securities is in contest. Similarly the power of sale is claimed under those disputed securities.

In any application for an interlocutory injunction there are three issues – is there a serious question to be tried; does the balance of convenience favour the granting of the injunction; are damages an adequate remedy?

The disputing natural persons are Mr Brian Geaney and his brother John on the one hand and Mr Daryl Fennell on the other. Mr Fennell controls Quarterback and Messrs. The Geaneys now control Highvic. All the shares in Highvic are owned by Days Road Investments Pty Ltd. The shares in Days Road Investments Pty Ltd (“Days Road”) are owned equally by the Geaney brothers and Mr Fennell.

Serious Question to be Tried?

It is plain that there is a serious question…

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: [2012] QSC 8
Decision Date: 1 February 2012

CaseChat Overview and Summary

Highvic Pty Ltd sought an interlocutory injunction against Quarterback Group Pty Ltd in the Supreme Court of New South Wales. The Applicant sought to restrain the Respondents from exercising a power of sale over a property located at 3-5 King Street, Newtown, and to prevent the appointment of receivers and managers over the property. The case hinged on the validity of securities and the control of the sale and proceeds of the property. The Applicant argued that if the property were sold, the potential damages would be difficult to quantify, and that the right to exercise the power of sale, the amount of the debt, and the interest payable were all in issue.

The legal issues before the court were whether an interlocutory injunction should be granted and what considerations should be taken into account in determining whether to grant such an injunction. The court considered the balance of convenience and whether there was a serious question to be tried. The court also considered the adequacy of protection for the Applicant if the injunction were not granted.

The court found that the Applicant had made out a strong case on the merits, and that there was a serious question to be tried regarding the validity of the securities. The court also found that the balance of convenience favoured the grant of an interlocutory injunction, as the potential damages to the Applicant if the property were sold were difficult to quantify, and the potential prejudice to the Applicant outweighed any prejudice to the Respondents. The court also found that adequate protection was in place, as the Applicant had provided a guarantee of the Respondents' costs and damages if the injunction were ultimately found to be unjustified.

The court granted the interlocutory injunction, restraining the Respondents from exercising the power of sale over the property and from appointing receivers and managers over the property. The Applicant was ordered to bring in a minute of the order reflecting these reasons.

Orders

Orders of the court

The Applicant to bring in a minute of the Order reflecting these reasons

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Highvic Pty Ltd & Ors v Quarterback Group Pty Ltd & Anor [2012] QSC 8
PARTIES:	HIGHVIC PTY LTD (Applicant/First Plaintiff) AND BRIAN FRANCIS GEANEY (Second Plaintiff) AND JOHN JOSEPH GEANEY (Third Plaintiff) V QUARTERBACK GROUP PTY LTD (Respondent/First Defendant) AND DARYL JAMES FENNELL (Second Defendant)
FILE NO/S:	S375/2011
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	1 February 2012
DELIVERED AT:	Rockhampton
HEARING DATE:	30 January 2012
JUDGE:	McMeekin J
ORDER:	The Applicant to bring in a minute of the Order reflecting these reasons
CATCHWORDS:	EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – BALANCE OF CONVENIENCE GENERALLY – where accountants appointed receivers and managers pursuant to securities – where the resolution of the issues turns on the validity of securities – where there is dispute about who should control the sale and proceeds of land – where if the land was peremptorily sold the potential damages would be difficult to quantify – where the right to exercise the power of sale, the amount of the debt, the amount presently due and owing and the interest payable is in issue – where adequate protection is in issue Uniform Civil Procedure Rules 1999 r468 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Chisholm v Reif (1953) 2 FLR 211 Dwyer v Corliss & Anor [2003] QSC 149 Glandore Pty Ltd v Elders Finance and Investment Co Ltd (1984) 4 FCR 130 Harvey v McWatters (1948) 49 SR (NSW) 173 Inglis v Commonwealth Trading Bank (1972) 126 CLR 161
COUNSEL:	AM Arnold for the applicant DEF Chesterman for the respondent
SOLICITORS:	Johnson Law for the applicant Nicholsons Solicitors for the respondent