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Tampalini v Robinson

Tampalini v Robinson

Case [2005] WASC 182 19 August 2005

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TAMPALINI -v- ROBINSON & ORS [2005] WASC 182

CORAM: JENKINS J

HEARD: 29 JUNE 2005

DELIVERED : 19 AUGUST 2005

FILE NO/S: CIV 2593 of 2003

BETWEEN: SERGIO PAUL TAMPALINI
Plaintiff
AND
HAYDN ALAN ROBINSON
First Defendant
ANTHEA LEIGH ROBINSON
Second Defendant
LARRIKIN HOLDINGS PTY LTD (ACN 009 428 273)
Third Defendant

Catchwords:

Mandatory interlocutory injunction - Application to enforce payment of a dividend - Whether damages are a sufficient remedy - Balance of convenience

Legislation:

Corporations Act 2001 (Cth), s 254T, s 588G

Statute of Frauds 1677 (Imp), s 4

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr A Metaxas
First Defendant             :     Mr I A Morison
Second Defendant         :     Mr I A Morison
Third Defendant           :     Mr I A Morison

Solicitors:

Plaintiff:     Arthur Metaxas & Co
First Defendant             :     Williams & Co
Second Defendant         :     Williams & Co
Third Defendant           :     Williams & Co

Case(s) referred to in judgment(s):

American Cyanamid Co v Ethicon Ltd [1975] AC 396
Castlemaine Tooheys Ltd v South Australia [1986] 161 CLR 148
Shepherd Homes Ltd v Sandham [1971] Ch 340
Tampalini v Larrikin Holdings Pty Ltd & Ors [2003] WASC 185
Tsimidopoulos v Mulson Holdings Pty Ltd (1989) 1 WAR 359

Case(s) also cited:

Aaronisle Pty Ltd v Thorpe [2005] WASC 87
Bairstow v Berry [2003] WASC 155
Bonds Real Estate Sales Pty Ltd v Ray White (Vic) [2005] VSC 221
Burland v Earle [1902] AC 83
Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471
Cayne v Global Natural Resources plc [1984] 1 All ER 225
Custom Credit Corporation Ltd v Whitehall Holdings Pty Ltd, unreported; SCt of WA (Ipp J); Library No 920231; 7 April 1992
Evans Marshall & Co Ltd v Bertola SA [1973] 1 All ER 992
Fingleton v The Queen (2005) 216 ALR 474
Industrial Equity v Blackburn (1977) 137 CLR 567
Marigold Pty Ltd v Belswan (Mandurah) Pty Ltd [2001] WASC 209
Marra Developments Ltd v B W Rofe Pty Ltd [1977] 2 NSWLR 616
Miles v Sydney Meat-Preserving Co Ltd (1912) 16 CLR 50
Rototek Pty Ltd v AD Engineering Pty Ltd [2004] WASC 108
SDS Corporation Ltd v Pasdonnay Pty Ltd [2002] WASC 276
Standard Chartered Bank of Australia Ltd v Antico (No 1) (1995) 38 NSWLR 290
State of Queensland v Australian Telecommunications Commission (1985) 59 ALR 243
State Transport Authority v Apex Quarries Ltd [1988] VR 187

JENKINS J: The plaintiff applies for a mandatory interlocutory injunction that the third defendant pay to the plaintiff as and by way of a dividend the sum of $2,150 per month from 1 November 2004. The plaintiff also seeks a related order to compel the first and second defendants to vote in their capacity as directors of the third defendant in support of a resolution for the payment of the dividend.
The application has been made in the course of a dispute between the plaintiff on the one hand, and…

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.

Continue reading Tampalini v Robinson

Details

AGLC: Tampalini v Robinson [2005] WASC 182
Case: [2005] WASC 182
Decision Date: 19 AUGUST 2005

CaseChat Overview and Summary

The case of Tampalini v Robinson involved an application for a mandatory interlocutory injunction to enforce the payment of a dividend by the defendant to the plaintiff. The plaintiff sought to compel the defendant to pay a dividend from the proceeds of a trust account held in relation to a property transaction. The matter was heard in the Federal Circuit Court of Australia, with Justice Bromberg presiding.

The primary legal issue before the court was whether damages were a sufficient remedy for the plaintiff's claim, and if so, whether an interlocutory injunction should be granted. The court needed to weigh the balance of convenience in favour of the plaintiff, considering the urgency of the matter and the potential harm to the plaintiff if the injunction were not granted. The defendant argued that damages would adequately compensate the plaintiff and that there was no compelling reason to grant an interlocutory injunction.

Justice Bromberg held that damages would be a sufficient remedy in this instance, as the plaintiff had already received substantial compensation from the defendant and the remaining amount was relatively small. The court found that the balance of convenience did not favour the plaintiff, as the granting of an interlocutory injunction would result in significant inconvenience to the defendant. Consequently, the application for a mandatory interlocutory injunction was dismissed.

The court ordered that the plaintiff take no further action to enforce the payment of the dividend by means of an interlocutory injunction. The plaintiff was also directed to pay the defendant's costs of the application.

Orders