Nauru Air Corporation v Parbery

[2004] VSC 257

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

NAURU AIR CORPORATION	Plaintiff
v
STEPHEN PARBERY & ANOR	Defendant

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 July 2004
DATE OF JUDGMENT:	2 July 2004
CASE MAY BE CITED AS:	Nauru Air Corporation v Parbery
MEDIUM NEUTRAL CITATION:	[2004] VSC 257

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr DJ Williams	Baker & McKenzie
Ex parte

HER HONOUR:

1. This is an ex-parte oral application for an interlocutory injunction, made before the commencement of proceedings.

1. Having considered the affidavit of Geoffrey William Bowmaker and Exhibits 1 to 3, which were tendered in court this afternoon, I am satisfied that there is a serious question to be tried as to the receivers' entitlement to serve the notices which are Exhibit 2 to the affidavit of Geoffrey Bowmaker, and the receivers' entitlement to enter into possession, or to exclude the plaintiff from possession, of parts of Floors 5 and 49 in Nauru House at 80 Collins Street, Melbourne.

1. Mr Williams foreshadowed that there may also be a question as to the validity of the appointment of the receivers.  However, I have no material before me today which would enable me to make a decision as to whether or not that is a serious question that ought to be tried. 

1. As far as the balance of convenience is concerned, I note that there is no evidence before me of any substantial prejudice which the defendants would suffer if I were to grant a short injunction until next Wednesday 7 July.  On the other hand, the evidence of the harm the plaintiff could suffer if I refused an injunction is overwhelming.  I am satisfied that there could be serious interruptions to flights operated by the plaintiff between now and next Wednesday if it were locked out from the premises.  It is late on Friday afternoon.  I note that there is no direct evidence that the defendants intend to change the locks or keep the plaintiff out of physical possession later today or in the immediate future.  On the other hand, there is no evidence that they do not intend to do so.  The only correspondence before me states that they assert a right to do that, and I have to give some weight to that risk, particularly when regard is had to the nature of the harm that will be suffered if the airline is locked out of the offices.  I am advised that the prejudice would include not only inconvenience to the airline and to its business, through inability to operate flights, but also potential inability to contact passengers whose details are on the computers which are located on the floors. 

1. The harm that might be suffered in relation to Floor 5, which is largely dealing with the handling of cargo, appears to be less serious.  But the potential harm in relation to Floor 49 appears to be very serious. 

1. In the circumstances I am minded to grant a short injunction.  I will require the usual undertaking to be given and note that it has been proffered already by the plaintiff's counsel.  I note that the proposed defendants have expressed concern as to the adequacy of that undertaking as to damages, and no doubt that is a matter in relation to which, when this matter comes back on next Wednesday, the plaintiff will need to produce affidavit evidence to satisfy the court if it remains a live issue.

1. For my purposes, it seems to me that I only need to consider the question of the adequacy of the undertaking as to damages between now and next Wednesday, as that is the only injunction I am proposing to grant.  Although somewhere the detailed correspondence from the defendants' solicitors indicates that they wish to lease the premises commercially, and that the continued occupation by the plaintiff is preventing that from happening, there is nothing in the material that I have seen to suggest that any prospective tenant would be lost between now and next Wednesday.  I am not aware of any substantial harm that might be suffered by the defendants between Friday evening and next Wednesday.  It seems to me on the material before me that it is unlikely that an undertaking as to damages by the plaintiff would be of any  value in respect of a short injunction until next Wednesday.

1. Accordingly, I am prepared to make orders in terms of the minute which has been provided to me, save that paragraph 2 becomes:  "By 5 pm on 6 July 2004 to file and serve originating process and a summons seeking the relief hereby granted and to serve the affidavit of Geoffrey William Bowmaker and exhibits thereto, and a copy of Exhibits 1 to 3, which were tendered in court this day."

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