Kahu NZ Ltd v Aviation Utilities Pty Ltd - [2022] WASC 405

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   KAHU NZ LTD -v- AVIATION UTILITIES PTY LTD [2022] WASC 405
CORAM:   SOLOMON J
HEARD:   4 NOVEMBER 2022
DELIVERED          :   4 NOVEMBER 2022
PUBLISHED           :   24 NOVEMBER 2022
FILE NO/S:   CIV 2012 of 2022
BETWEEN:   KAHU NZ LTD
Plaintiff
AND
AVIATION UTILITIES PTY LTD
Defendant

Catchwords:

Equity - Interlocutory injunction - Mandatory injunction - Personal services contracts - Adequacy of damages - Turns on own facts

Costs - Whether reason to depart from the ordinary course

Legislation:

Competition and Consumer Act 2010 (Cth), sch 2 ('Australian Consumer Law')

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	P J Hannon
Defendant	:	S M Davies SC

Solicitors:

Plaintiff	:	Peter May McAuliffe Legal (Busselton)
Defendant	:	Norton White

Case(s) referred to in decision(s):

Centreplex Pty Ltd v Noahs Rosehill Waters Pty Ltd [2019] WASC 252
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Perdaman Chemicals and Fertilisers Pty Ltd v Griffin Coal Mining Company Pty Ltd [No 3] [2011] WASCA 203 (S)
RB (Hygiene Home) Australia Pty Ltd v Henkel Australia Pty Ltd (No 2) [2021] FCA 1194

SOLOMON J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

This is an application for urgent interim injunctive relief in the form of mandatory orders requiring the defendant to utilise the plaintiff's services, pursuant to the contract entered into by the parties.
The background may be summarised as follows.
The plaintiff is a company that has for some time engaged in and has, it appears, plentiful experience in the aerial combating of fires. It has undertaken many contracts for government agencies in what is commonly referred to as firefighting, including the use of helicopters and other aerial devices to combat the spread of bush fires. It goes without saying that in this country that is a vital and important service, and the contracts for the provision of those services have an element of great public importance.
Firefighting efforts in Australia and in different states are coordinated through a number of entities and sub-entities that have representative agencies in the different states. The Australasian Fire and Emergency Service Authorities Council Limited (AFAC) is a public company limited by guarantee which has agreements with 'Members' representing each State or Territory. In Western Australia the relevant Member is the Department of Fire and Emergency Services (DFES). Each Member authorises the AFAC to procure and manage aerial firefighting resources on behalf of the Member. Within AFAC there is a business unit that manages the relevant contracts, namely the National Aerial Firefighting Centre (NAFC).
For present purposes, it is sufficient to observe that by a letter dated 30 August 2021, AFAC/NAFC, effectively on behalf of DFES, engaged the defendant to provide what I shall refer to very broadly as firefighting services (AFAC contract). The terms of that contract are embodied in the letter of 30 August 2021, and also a pro-forma contract of the AFAC and its contracting arm,…

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: [2022] WASC 405
Decision Date

CaseChat Overview and Summary

In the matter of Kahu NZ Ltd v Aviation Utilities Pty Ltd, the plaintiff, Kahu NZ Ltd, sought an interlocutory injunction to restrain the defendant, Aviation Utilities Pty Ltd, from terminating their firefighting services contract and to compel the defendant to continue using the plaintiff's services. The court was required to determine whether the application for interlocutory relief met the necessary legal criteria. The court found that while there was a serious question to be tried regarding the lawfulness of the termination, the balance of convenience did not favour granting the injunction. The nature of the contract and the potential risk to safety if the parties were forced to work together despite the alleged breakdown in their relationship weighed against the grant of mandatory relief. The court also found that damages would be an adequate remedy for the plaintiff, as they were quantifiable and the plaintiff had strong prospects of success in the substantive proceedings. Therefore, the application for interlocutory relief was dismissed.

The court further considered the issue of costs and determined that the application was not brought unreasonably. The usual rule that costs should be in the cause was applicable, and the plaintiff's application for interlocutory relief did not warrant a departure from this principle. The court ordered that the costs of the plaintiff's application for interlocutory relief would be in the cause, and the defendant would pay the plaintiff's costs associated with the defendant's application for costs, to be taxed if not agreed.

Orders