Neoinvent Pty Ltd v National Broadband Pty Ltd

[2005] NSWSC 1162

CITATION:	Neoinvent Pty Ltd v National Broadband Pty Ltd [2005] NSWSC 1162
HEARING DATE(S):	21/10/05
JUDGMENT DATE :	21 October 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Application for interim relief dismissed.

CATCHWORDS:	EQUITY [344]- Interlocutory mandatory injunction- Interference with contractual relations- Plaintiff alleged defendant interfered with plaintiff's customer's internet connection- Whether sufficient evidence of contracts to show irreparable damage or balance of convenience- Duty of plaintiff in interlocutory application for injunction to give evidence of basic facts with due candour.
LEGISLATION CITED:	Civil Procedure Rules 2005, 6.3(b)
CASES CITED:	Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499
PARTIES:	Neoinvent Pty Limited (P) National Broadband Pty Limited (D)
FILE NUMBER(S):	SC 5496/05
COUNSEL:	B Goldsmith (S) (P)
SOLICITORS:	Goldsmiths Lawyers (P)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 21 October 2005

5496/05 – NEOINVENT PTY LTD v NATIONAL BROADBAND PTY LTD

JUDGMENT

1 HIS HONOUR: This is an application for an interim injunction. The proceedings were commenced yesterday before Hamilton J. Hamilton J gave leave to the plaintiff to file a summons returnable at 2.00 pm today and he granted leave to serve a summons and notice of motion in the first instance by facsimile transmission directed to a certain person at an 1800 number. That was, it would seem, carried out. However, the response was by solicitors who call themselves Middletons Lawyers who have faxed the court and have telephoned my associate, which message was relayed in court that their partners Stuart Gibson and Cameron Abbott were in Delhi, India. They had taken instructions and they wanted an adjournment. They also objected to being served at midnight last night with a summons requiring them to appear in Sydney at two o’clock this afternoon.

2 It is surprising, if Middletons are a firm of repute in Melbourne why a Sydney solicitor was not here to tell me that personally, but be that as it may, that is the message that was relayed to the court.

3 Mr Goldsmith, solicitor for the plaintiff, indicated that he objected to any adjournment and wished to proceed. That was his right, however, being a commercial lawyer he realises, no doubt, that people only have one chance of an application for an interlocutory injunction as a general rule and that if he fails then the matter would just go over into the registrar's list to take its place for a final hearing.

4 The case presented was that there was prima facie evidence of an interference with contractual rights by the defendant. Various companies such as Rotors and Drums Pty Ltd had contractual arrangements with the plaintiff to supply them with certain Internet services and the defendant had wrongfully, and with intent to injure the plaintiff made sure that those contracts could not be performed. It would appear, and I use that phrase advisedly because there is little evidence, that the defendant is a company which takes Internet services from the wholesaler Telstra and then retails them to various people including the plaintiff. It would also appear that the defendant has power to do what, in evidence, is called a churn reversal which, although it has not been explained to me, I would assume means that the ultimate customer from the plaintiff is disconnected.

5 Where a case is to be brought in tort, as is the case of interference with contractual relations, the rules require that it be begun by statement of claim (UCP rule 6.3(b)). That has not been done. These proceedings were commenced by summons, the summons seeking a declaration that the defendant has wrongfully interfered with the contracts between the plaintiff and the customers set out in the list, which is marked “A” to the summons. However, “A” to the summons does not list contracts, it merely lists six persons or corporations. The summons and the notice of motion seek a mandatory injunction that the defendant do all things necessary to reconnect the customers and that it not do anything that would have or likely have the consequences of preventing the customer set out in the annexure having access to the Internet for seven days from the date hereof.

6 It is quite apparent that these orders would in any event have to be very much tidied up as it would be difficult to make meaningful orders in that form.

7 The tort on which the plaintiff sues involves the defendant having knowledge of certain contracts and acting in a way to injure the plaintiff by seeing that the contracts are not performed. In the instant case there is just no evidence of what the contracts are at all between the so-called customers and the plaintiff. All we know in the affidavit of Mr Troussan is that:

"7. In about early October 2005, the following customers of the plaintiff signed authorities authorising the plaintiff to supply Internet services."


The six companies are then named and the paragraph continues:

"Annexed hereto and marked “D” are copies of such authorities."

8 When one goes to “D” one gets a bit of a surprise. The contract is not set out but rather, in the case of Tenzino Technology Pty Ltd there is a piece of paper which says:

"I Thitivan Mitchell as authorised representatives of TTP Pty Ltd Give authority to Neoinvent Pty Ltd to supply us with DSL Internet services on the following service number ..."

the number is then set out and it is signed by a person who says he is a director and the date is 19 October 2005.

9 If one goes to annexure “E”, which is the churn reversal advice, one can see that the date of reversal was actually two days earlier, 17 October 2005. Not only is the affidavit incorrect in saying "in about early October 2005", it does not fulfil the duty of candour that rests upon all plaintiffs for injunctions. It does not draw attention to the fact that this authorisation was received two days after the service was disconnected.

10 In an endeavour to remedy this I gave leave for Mr Trousson to go into the witness box and give oral evidence. His oral evidence was that the relationship between the customer and the plaintiff occurred not in early October but in August 2005; but again there was no evidence at all as to what the contract was. There was no evidence at all as to the knowledge that the defendant was alleged to have of the contract. One might infer that there was some arrangement whereby the defendant as, if I can use the term, sub-lessee from Telstra, had an arrangement that the plaintiff’s customer would be permitted to be a sub-sublessee but what that arrangement was, the court is given no details whatsoever. Mr Goldsmith conceded said there was no contractual arrangement between the plaintiff and the defendant.

11 There was also an odd part of the affidavit, which says:

"It is my belief that the services have been disconnected because moneys are owed by Neobox to the defendant."

12 That belief was obtained from the plaintiff’s customers themselves saying that that is the information they received. Mr Trousson said that he has never been a director or employee of Neobox, but, in the absence of fuller details, it is just extraordinary to believe that some commercial operator would penalise this company, a company which the evidence shows was only incorporated on 1 March 2005, without there having been some connection between Neobox and the plaintiff, but I am again left to speculate.

13 The defendant wanted to give evidence but Mr Goldsmith declined to give it that opportunity. He is seeking a mandatory injunction on an ex parte basis and even though since the judgment of Gummow J in the Businessworld case (Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499) that is easier to get than it once used to be, it is still a very difficult matter to obtain such an injunction. It is obvious that the plaintiff is suffering some damage through having its customers disconnected, but it is not completely clear that this is irreparable damage because one just does not know what the contracts are between the plaintiff and its customers.

14 I am not satisfied on the evidence before me that the plaintiff has made out a prima facie case. I am not satisfied that the balance of convenience favours the grant of the injunction and it would have been handy to have had the defendant here. That has not happened. Mr Goldsmith made a deliberate assertion to go on. Accordingly all I can do is dismiss the notice of motion.

15 I order that the plaintiff file and serve a statement of claim no later than 4.00 pm on Monday 24 October. I stand the matter over to the Registrar's list on Friday 28 October at 9.30 am.

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