New Oakleigh Motors Pty Ltd v GE Automotive Financial Services Pty Ltd & Anor

[2008] VSC 540

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9937 of 2008

NEW OAKLEIGH MOTORS PTY LTD	Plaintiff
v
GE AUTOMOTIVE FINANCIAL SERVICES PTY LTD & ANOR	Defendants

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2008
DATE OF JUDGMENT:	25 November 2008
CASE MAY BE CITED AS:	New Oakleigh Motors Pty Ltd v GE Automotive Financial Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2008] VSC 540

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Practice and procedure – Interim injunction – Car dealer’s floor plan finance.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Keen	HWL Ebsworth
For the Defendants	Mr D Gilbertson	Alpha Legal

HIS HONOUR:

1. I think it is important to bear in mind that what I an dealing with here is an application for an injunction for a day or two in order that a judge may consider then whether or not it is appropriate to grant an injunction pending the hearing and determination of the proceeding.  It is unnecessary for me to repeat the obvious, that I granted an injunction on an interim basis yesterday, although in the presence of counsel for the defendants, on the basis of what I was told from the Bar table.  That, of course, was not able to be tested in the sense that it was not in the form of evidence.  This is not uncommon in the handling of matters which arise urgently at the very early interim stage.

1. The other thing one has to bear in mind is this, it is axiomatic on the question whether to grant an injunction restraining some acting pending trial, to consider the relative seriousness of the consequences to the plaintiff if the restraint is not granted.

1. It has been said time and time again, and the point was made particularly by Mr Justice Lush in Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Ltd[1], that if the harm that is sought to be protected against is severe and might be irreparable unless restrained, then the strength of the case that is required to warrant the grant of an injunction, can and must often be less than that which is required if the harm to be avoided is not of that nature. 

   [1][1979] VR 107.

1. I now, today, have an affidavit from the plaintiff but not from the defendants which would need time to prepare an answering affidavit.  At the same time counsel for the defendants has submitted that the injunction should not be continued because it was seen that the defendants were entitled to act as they had.  Dealing, as I am, with this matter at this very interim stage, and not being in a position to totally satisfactorily deal with it in the absence of affidavit material from the defendant, I think the wiser course is to continue the injunction I granted yesterday until 4.15 on Thursday, and to refer the matter to the judge in charge of corporations matters which this case very much lies in the area of, being a case which concerns the enforcement of a commercial instrument by way of appointment of receivers and managers to a business, with a view to his Honour considering whether an injunction should be granted pending the hearing and determination of the proceeding.  I would not now so order, myself, because, as I have said, I think the case requires a fuller consideration and in light of such affidavit material as the defendants might be advised to file.  I would therefore stand the matter over with a direction that the defendants file any affidavit they desire to rely upon by 4 o'clock tomorrow and otherwise leave the disposition of the matter to his Honour. 

1. I do not, in so dealing with the matter, overlook anything that Mr Gilbertson has said earlier on this afternoon and just now following the short adjournment during which I read Mr Ireland's affidavit. 

1. Mr Gilbertson may well be right that when a judge has time to look at the papers, to be taken to the relevant provisions in the documents and consider them in light of the affidavit material from both parties, it will be seen that on balance it is not appropriate to grant an injunction pending trial.  But it is a balancing exercise which has to be undertaken in the light of materials from both parties and the relevant commercial instruments and the facts as to what has happened.

1. It is desirable that the defendants, of course if they are so advised, inform the judge of the relevant circumstances because one is dealing with a situation that has immediate and significant commercial implications and it is better to be right than to be half right and half wrong in the grant or refusal of the most extreme remedy of an injunction. 

1. Accordingly, upon counsel for the plaintiff renewing the undertaking for damages, I will order as follows:

(1)       The injunction granted by paragraph 1 of the orders made on 24 November 2008 is continued until 4.15pm on 27 November 2008 or further order.

(2)       The defendants file and serve any affidavit they intend to rely upon in opposition to the application by the plaintiff’s proposed summons be filed and served by 4 pm Wednesday, 26 November. 

(3)       The further hearing of the proceeding and the plaintiff’s proposed summons be referred to the judge in charge of the corporations list and, subject to his direction, for the hearing of the summons on Thursday, 27 November 2008.

(4)       Costs are reserved.

(5)       Liberty to apply.

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CERTIFICATE

I certify that this and the 2 preceding pages are a true copy of the reasons for Judgment of Hansen J of the Supreme Court of Victoria delivered on 25 November 2008.

DATED this twenty fifth day of November 2008.

Associate