Stacks Managed Investments Ltd v Tolteca Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:	Stacks Managed Investments Ltd v Tolteca Pty Ltd [2015] QSC 234
PARTIES:	STACKS MANAGED INVESTMENTS LTD
(applicant)
v
TOLTECA PTY LTD
(respondent)
FILE NO/S:	1001 of 2014
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	17 July 2015
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2015
JUDGE:	Bond J
ORDER:	Judgment delivered ex tempore on 17 July 2015:
The order of the court is that:

1. the application be dismissed;

2. Tolteca pay Stacks’ costs of the application to be

assessed on the standard basis.

3. Tolteca pay the costs of the Receivers over and above any costs that were jointly incurred with Stacks of and incidental to the application.

CATCHWORDS:	EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – MANDATORY INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – BALANCE OF CONVENIENCE GENERALLY – whether serious question to be tried – prejudice to the respondent caused by granting the injunction – whether the effect of the injunction is to finally determine the parties’ legal rights
CONTRACTS – FINANCIAL SERVICES – prohibition of unconscionable conduct in supply of financial services – loan agreement – where the applicant defaulted under a loan agreement – claim for relief of obligations under that agreement – whether unconscionable for the respondent to
have provided loan in the circumstances
Australian Securities and Investments Commission Act 2001
(Cth), ss 12CB, 12GD, 12GF, 12GM
Active Leisure (Sports) Pty Ltd v Sportsman’s Australia
Limited [1991] 1 Qd R 301, cited American Cyanamid Co v Ethicon Ltd [1975] AC 396, cited
Australian Broadcasting Commission v O’Neill (2006) 227
CLR 57, cited Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, cited
Bowen Central Coal Pty Ltd v Aquila Coal Pty Ltd & Anor
[2011] QCA 334, cited Bradto Proprietary Limited v State of Victoria [2006] VSCA 89, cited
Kellogg Brown & Root Pty Ltd v Australian Aerospace Ltd
[2007] VSC 200, considered
Live Earth Resource Management Pty Ltd v Live Earth LLC
(2007) FCA 1034, cited considered
Samsung C & T Corporation v Laing O’Rourke Australia
Construction Pty Ltd [2015] WASC 83, cited Stacks Management Investments Ltd v Tolteca Pty Ltd [2015] QSC 80, cited
Walter Sofronoff, “Interlocutory Injunctions Having Final
Effect” (1987) 61 ALJ 341
COUNSEL:	N H Ferrett for the applicant
D B O’Sullivan with D J Ananian-Cooper for the respondent
SOLICITORS:	Turner Freeman Lawyers for the applicant
McCullough Robertson for the respondent

HIS HONOUR: The relationship between the parties before me is sufficiently articulated in my decision in Stacks Management Investments Ltd v Tolteca Pty Ltd [2015] QSC 80 at [4].

5       In proceeding 1001 of 2014 (the “Stacks proceeding”), Stacks sued Tolteca seeking

an order for recovering possession of land at 9847 Mt Lindsay Highway. Stacks had lent the moneys which Tolteca used for the joint venture land development transaction. Tolteca was in default and the land at 9847 Mt Lindsay Highway was security for that loan. Tolteca had counter-claimed for relief founded on

10 unconscionable conduct by…