Reflex Smith Pty Ltd v Soul Communications Ltd
[2007] FMCA 1593
•14 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REFLEX SMITH PTY LTD v SOUL COMMUNICATIONS LTD | [2007] FMCA 1593 |
| TRADE PRACTICES – Application for injunctive relief. |
| Applicant: | REFLEX SMITH PTY LTD |
| Respondent: | SOUL COMMUNICATIONS LTD |
| File number: | MLG 1175 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 14 September 2007 |
| Date of last submission: | 14 September 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 14 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A.T. Schlicht |
| Solicitor for the Applicant: | Dandanis & Associates |
| Counsel for the Respondent: | Mr S.W. Stuckey |
| Solicitor for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The Respondent shall file and serve a Response on or before 21 September 2007.
The proceedings shall be the subject of mediation to be held after 21 September 2007, as soon as practicable, with the mediation to be conducted by a Registrar of the Court as mediator appointed by the Registrar of the Court.
Pursuant to s.45 of the Federal Magistrates Act, I declare that it is appropriate in the interests of the administration of justice to allow discovery.
The parties shall file and serve a list of documents by 5 October 2007 with inspection to occur by 12 October 2007.
The trial shall proceed on affidavit evidence with the affidavit of each witness if adopted to stand as the evidence in chief of the witness.
The Applicant shall file and serve any affidavits to be relied upon on or before 26 October 2007 and not otherwise, except with the leave of the Court.
The Respondent shall file and serve any affidavits to be relied upon on or before 9 November 2007 and not otherwise, except with the leave of the Court.
The Applicant shall file and serve a reply, if any, on or before 16 November 2007.
The application is to be listed for final hearing with an agreed hearing estimate of 3 days.
Liberty to apply is granted.
Costs of the Interlocutory application be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1175 of 2007
| REFLEX SMITH PTY LTD |
Applicant
And
| SOUL COMMUNICATIONS LTD |
Respondent
REASONS FOR JUDGMENT
The Applicant seeks an injunction until trial, the effect of which would be to cause the Respondent to give it back dealer codes and a measure of credit that have recently been taken away. It is not clear whether this will remain the final position but at the moment there is no application for injunctive relief on an ongoing basis, as it were, as a perpetual injunction. It is of course open to the Applicant to amend its application to include such relief.
The absence of final relief in the form of injunctive relief is illustrative of the difficulty that the Applicant faces, namely that the Court is most unlikely to order that a commercial relationship continue forever.
I will indicate at the start that I am not prepared to grant injunctive relief and the reason that stands at the forefront of my concerns is that in the agreement which has formed the bedrock of the way in which the parties have dealt with one another, at clause 8.1(b), it is at least arguable that either party could terminate the agreement during an additional period - and in my view it is strongly arguable that what the parties are in is such an additional period - by giving 60 days' written notice.
This is not in any way determinative of the damages that the Applicant might ultimately get, but if that construction of the agreement is correct, then it seems to me that the Applicant is seeking more by way of interim relief than it can obtain at trial and I would not be minded to grant it that. I note also that the effect of the interim application would be to cause these two parties to continue a business relationship that one of them vehemently does not wish to continue.
I accept that the current state of the authorities does not set itself as completely against orders requiring supervision as was previously thought perhaps to be the case but it is equally the case that the Courts have always been reluctant to make parties - certainly in contracts for personal service but also in my view in business relationships - to deal with one another where they did not wish to do so.
While Mr Schlicht's submission is correct, inasmuch as that what his client seeks is relatively easy to articulate, one cannot in my view be wholly certain that problems of supervision would not arise. Furthermore, part of what he seeks, namely the restoration of credit, gives rise to the difficulty that while I am inclined presently to the view that the credit was an inexorably conjoined element of the way in which the parties actually dealt with one another, there are real issues as to the enforceability of the provision of such credit. It would seem to me to rely upon practice rather than any contractual term.
Further, I am not as persuaded as Mr Papadopoulos is that opening the Oakleigh store would be as simple as he suggests. The material as presently disclosed appears to suggest that the landlord of that premises has formed a very strong view about the matter contrary to his interests. It may be possible of course - and I do not for a moment reject Mr Papadopoulos's assertions or, more accurately, those of the Applicant - to resolve the difficulties with that landlord, but the material as presently filed certainly leaves the matter far from clear.
I accept also Mr Schlicht's submissions that the nonpayment of $21,000.00 of moneys owed that his client asserts could indeed affect the capacity of the Applicant company to operate, but I notice, once again without forming any final views, that there is material before the court that suggests that the Applicant had financial difficulties well before that time.
In all the circumstances, it is not appropriate in my view to grant the relief sought by way of interim injunction.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Deputy Associate: Ann Pretty
Date: 14 September 2007
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