Sensis Pty Ltd v Bivami Pty Ltd (No 3) - [2012] FCA 1465

FEDERAL COURT OF AUSTRALIA
Sensis Pty Ltd v Bivami Pty Ltd (No 3) [2012] FCA 1465

Citation: Sensis Pty Ltd v Bivami Pty Ltd (No 3) [2012] FCA 1465

Parties: SENSIS PTY LTD ACN 007 423 912 and UNIVERSAL PUBLISHERS PTY LTD ACN 000 087 132 v BIVAMI PTY LTD ACN 003 020 166, WESTPAC BANKING CORPORATION LIMITED ACN 007 457 141 and AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS CUSTODIAN FOR HYPERION PROPERTIES SYNDICATES LIMITED; AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS CUSTODIAN FOR HYPERION PROPERTIES SYNDICATES LIMITED; UNIVERSAL PUBLISHERS PTY LTD ACN 000 087 132

File number: NSD 1803 of 2012

Judge: GRIFFITHS J

Date of judgment: 21 December 2012

Catchwords: PRACTICE AND PROCEDURE – application for mandatory interlocutory injunction – whether damages an adequate remedy – whether relief sought prematurely

Cases cited: Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148
Ringtail Asia Pacific Pty Limited v FTI Technology, LLC [2010] FCA 314

Date of hearing: 18 December 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 16

Counsel for the Applicants: Mr P R Whitford SC with Ms F T Roughley

Solicitor for the Applicants: Corrs Chambers Westgarth

Counsel for the First Respondent: Mr T Maltz

Solicitor for the First Respondent: Swaab Attorneys

Counsel for the Second Respondent: Mr J M Harris

Solicitor for the Second Respondent: Ms F Booth

Counsel for the Third Respondent: Mr C Newlinds SC with Mr M Izzo

Solicitor for the Third Respondent: Hunt & Hunt Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1803 of 2012

BETWEEN:
SENSIS PTY LTD ACN 007 423 912
First Applicant

UNIVERSAL PUBLISHERS PTY LTD ACN 000 087 132
Second Applicant

AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS CUSTODIAN FOR HYPERION PROPERTIES SYNDICATES LIMITED
Cross-Claimant

AND:
BIVAMI PTY LTD ACN 003 020 166
First Respondent

WESTPAC BANKING CORPORATIONS LIMITED ACN 007 457 141
Second Respondent

AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS CUSTODIAN FOR HYPERION PROPERTIES SYNDICATES LIMITED
Third Respondent

UNIVERSAL PUBLISHERS PTY LTD ACN 000 087 132
Cross-Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

21 DECEMBER 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The third respondent’s interlocutory application filed 11 December 2012 is dismissed.
2.The third respondent is to pay the costs of the applicants and the first and second respondents in respect of that interlocutory application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1803 of 2012

BETWEEN:
SENSIS PTY LTD ACN 007 423 912
First Applicant

UNIVERSAL PUBLISHERS PTY LTD ACN 000 087 132
Second Applicant

AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS CUSTODIAN FOR HYPERION PROPERTIES SYNDICATES LIMITED
Cross-Claimant

AND:
BIVAMI PTY LTD ACN 003 020 166
First Respondent

WESTPAC BANKING CORPORATIONS LIMITED ACN 007 457 141
Second Respondent

AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS CUSTODIAN FOR HYPERION PROPERTIES SYNDICATES LIMITED
Third Respondent

UNIVERSAL PUBLISHERS PTY LTD ACN 000 087 132
Cross-Respondent

JUDGE:

GRIFFITHS J

DATE:

21 DECEMBER 2012

PLACE:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FCA 1465
Decision Date

CaseChat Overview and Summary

In the matter of Sensis Pty Ltd v Bivami Pty Ltd (No 3), the Federal Court of Australia was tasked with assessing an interlocutory application filed by the third respondent, Australian Executor Trustees Limited (AETL), seeking an order that Bivami Pty Ltd demand payment from Westpac Banking Corporation Limited under a Banker’s Undertaking. The application also sought that upon such demand, Westpac pay the proceeds to Bivami and that Bivami account to AETL for all proceeds. The applicants and the first respondent opposed the application. The Court considered several key legal issues, including whether damages would be an adequate remedy, whether the relief was being sought prematurely, and the appropriate exercise of judicial discretion in granting mandatory interlocutory injunctions.

The Court found that AETL had not demonstrated why damages would be an inadequate remedy. The applicants had argued that the substantial amounts needed to rectify the breaches, as reflected in their damages claim in another proceeding, made damages insufficient. However, the Court did not see how this justified the need for mandatory relief over damages. Furthermore, the Court agreed with the applicants that compelling Bivami to call upon the Banker’s Undertaking would amount to compelling a breach of contract or unconscionable conduct, given the unresolved question of Bivami’s entitlement to do so. The Court emphasised the need for particular caution in granting mandatory interlocutory injunctions, as requiring a party to act may carry a greater risk of injustice than requiring a party not to act. The Court also noted that the application was premature, as the substantive issues in the proceedings had not yet been fully explored or determined.

Consequently, the Court dismissed the interlocutory application. The Court found that the status quo should be maintained pending the determination of the substantive issues. Additionally, the Court ruled that AETL should bear the costs of the unsuccessful application, in accordance with the general rule that costs follow the event. The Court also noted that it was reasonable for Westpac to participate in the hearing to protect its interests, despite no longer being a party to the interlocutory application.

Orders