Mogap Pty Ltd v Mobil Oil Australia Ltd

[1997] FCA 1097

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 841 of 1995

BETWEEN:	MOGAP PTY LIMITED & ORS APPLICANT
AND:	MOBIL OIL AUSTRALIA LIMITED RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	26 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex-tempore Judgment)

I have before me a notice of motion in relation to three matters, JTP Holdings Pty Ltd, Benauto Pty Ltd and Roseville Self Serve Station Pty Ltd concerning interlocutory orders pending further order of the Court.  These matters are presently under appeal to the Full Court of this Court.  The appeal has been heard and judgment reserved.

In relation to two of the matters, JTP Holdings Pty Ltd and Roseville Self Serve Station Pty Ltd, it seems to me that it is appropriate that an undertaking as to damages should be proffered as a condition of granting the orders because they involve instances where there was a 1 for 1 case advanced which was not accepted by Mr Justice Wilcox, the primary judge.

The third matter, namely Benauto Pty Ltd, concerns an allegation that there is a 9 for 6 arrangement and in those circumstances I consider that I ought to follow the approach taken by Mr Justice Wilcox and proceed consistently with the interlocutory order that he made not to exact an undertaking as to damages.  I appreciate there are some distinctions between circumstances in Benauto and the present case as determined by his Honour in relation to the 9 for 6, but I think on balance Benauto presents a situation where there need not be an undertaking as to damages. 

Accordingly I propose to make short minutes of order as sought in each of the other two matters.  In the case of Benauto, I do not consider that an undertaking as to damages is appropriate. I grant liberty to apply to all the parties on two days notice to the Court in relation to these matters.  So far as costs are concerned, I order that the costs be costs in the cause.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:            26 September 1997

Counsel for the Applicant:	Mr R W R Parker QC
Mr M O Tubbs
Solicitor for the Applicant:	Stojanovic Solicitors
Counsel for the Respondent:	Mr G O’L Reynolds
Solicitor for the Respondent:	Cowley Hearne
Date of Hearing:	26 September 1997
Date of Judgment:	26 September 1997