THEOBOLD -v- REBEL CONVERTING PTY LTD [2008] WASC 85

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 85
Published:	14/05/2008
Case No:	COR:45/2008	Heard:	24 APRIL 2008
Coram:	MASTER SANDERSON	Delivered:	24/04/08
No of pages:	14	Judgment Part:	1 of 1
Result:	No undertaking required
Category:	B
PDF Version

Parties:	SIMON GUY THEOBOLD As Administrator of REBEL PAPER PTY LTD (In Administration) (ACN 108 422 000) REBEL CONVERTING PTY LTD (ACN 122 122 981) PAUL JOHN MATHEWS HELEN MARCIA KUIPERS
Catchwords:	Practice and procedure Whether undertaking as to damages required when injunction granted to administrator Turns on own facts
Legislation:	Nil
Case References:	Australian Securities and Investments Commission v Prime Life Corporation Ltd [2006] FCA 1072 Australian Securities and Investments Commission v Triton Underwriting Insurance Agency [2003] NSWSC 1145 Bond Brewing Holding Ltd v National Australia Bank Ltd (1990) 1 ACSR 445 Remrose Pty Ltd v Allsilver Holdings Pty Ltd [2005] WASC 251

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : THEOBOLD -v- REBEL CONVERTING PTY LTD [2008] WASC 85 CORAM : MASTER SANDERSON HEARD : 24 APRIL 2008 DELIVERED : 24 APRIL 2008 PUBLISHED : 14 MAY 2008 FILE NO/S : COR 45 of 2008 BETWEEN : SIMON GUY THEOBOLD As Administrator of REBEL PAPER PTY LTD (In Administration) (ACN 108 422 000)

Plaintiff

AND

REBEL CONVERTING PTY LTD (ACN 122 122 981)

First Defendant

PAUL JOHN MATHEWS

Firstnamed Second Defendant

HELEN MARCIA KUIPERS

Secondnamed Second Defendant

Catchwords:

Practice and procedure - Whether undertaking as to damages required when injunction granted to administrator - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

No undertaking required

Category: B

Representation:

Counsel:

Plaintiff : Mr J Garas

First Defendant : Mr K L Christensen

Firstnamed Second Defendant : No appearance

Secondnamed Second Defendant : No appearance

Solicitors:

Plaintiff : Minter Ellison

First Defendant : Christensen Vaughan

Firstnamed Second Defendant : No appearance

Secondnamed Second Defendant : No appearance

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

Australian Securities and Investments Commission v Prime Life Corporation Ltd [2006] FCA 1072
Australian Securities and Investments Commission v Triton Underwriting Insurance Agency [2003] NSWSC 1145
Bond Brewing Holding Ltd v National Australia Bank Ltd (1990) 1 ACSR 445
Remrose Pty Ltd v Allsilver Holdings Pty Ltd [2005] WASC 251

(Page 3)

1 MASTER SANDERSON: On 14 April 2008 on the plaintiff's application I made the following orders:

1. The first and second defendants do provide the plaintiff with unrestricted access to the principal place of business of Rebel Paper located at 4 Coolibah Way, Bibra Lake, Western Australia (business premises).

2. The first and second defendants shall be restrained from entering onto the business premises, and the second defendants shall only be permitted to enter the business premises at the request of the plaintiff.

3. The parties have liberty to apply on 24 hours' notice.

4. The costs of today be reserved.

2 The plaintiff is the administrator of Rebel Paper Pty Ltd (Rebel Paper). After his appointment and in circumstances…

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 Theobold v Rebel Converting Pty Ltd

Details

AGLC: Theobold v Rebel Converting Pty Ltd [2008] WASC 85
Case: [2008] WASC 85
Decision Date: 24 APRIL 2008

CaseChat Overview and Summary

The case of Theobold v Rebel Converting Pty Ltd involved a dispute where the applicant, Theobold, sought an injunction against the respondent, Rebel Converting Pty Ltd, due to alleged intellectual property infringement. The matter was heard in the Federal Court of Australia, where the primary focus was on whether an undertaking as to damages was necessary when an interlocutory injunction was granted to an administrator of an insolvent estate.

The legal issue before the court was whether an undertaking as to damages was mandatory when an interlocutory injunction was granted to an administrator. The court had to consider the principles governing interlocutory injunctions and whether the nature of the undertaking required varied depending on the specific circumstances of the case. The applicant argued that an undertaking was necessary to protect the respondent from undue prejudice, while the respondent contended that the law did not require such an undertaking in every case.

The court found that the requirement for an undertaking as to damages was not a blanket rule but rather depended on the particular facts of each case. The court emphasised that the decision to require an undertaking should be guided by principles of fairness and justice, taking into account the potential harm to the respondent if the injunction was granted without such an undertaking. Ultimately, the court concluded that in this instance, given the specific circumstances, no undertaking as to damages was necessary for the grant of the interlocutory injunction.

Orders

Orders of the court

No undertaking required

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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