TMA Australia Pty Ltd v Indect Electronics and Distribution GmbH - [2013] NSWSC 1375

Supreme Court

New South Wales

Medium Neutral Citation: TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH [2013] NSWSC 1375
Hearing dates: 10, 13 September 2013
Decision date: 20 September 2013
Jurisdiction: Equity Division
Before: Robb J
Decision:
1. Interlocutory orders will be made generally in the form of the draft short minutes of order provided by the plaintiffs.
2. The court will hear the parties as to the precise form of the orders.
3. The costs of the interlocutory application will be each party's costs in the cause.

Catchwords: INTERLOCUTORY RELIEF - balance of convenience - mandatory interlocutory injunction - breach of contract - implied terms in contract - conventional estoppel - unconscionable conduct - assurances by defendant
Legislation Cited: Australian Consumer Law
Competition and Consumer Act 2010 (Cth)
Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499
Megaloconomos v Metro Goldwyn Mayer Pty Ltd (1953) 54 SR (NSW) 275
Patsalis v State of New South Wales [2012] NSWSC 178
The Mayo Group International Pty Ltd v Hudson Respiratory Care Inc [2005] NSWSC 445
Category: Interlocutory applications
Parties: TMA Australia Pty Ltd (First Plaintiff)
TMA Tech Pty Ltd (Second Plaintiff)
Indect Electronics & Distribution GmbH (First Defendant)
Indect Pty Ltd (Second Defendant)
Representation: Counsel:
M Einfeld QC with J L Clark (Plaintiffs)
M Dicker SC with J O'Connor (Defendants)
Solicitors:
JDK Legal (Plaintiffs)
Mason Black Lawyers (Defendants)

File Number(s): SC 255364/13
Publication restriction: Nil

Judgment

The first plaintiff ("TMA Australia") and the second plaintiff ("TMA Tech") are both subsidiaries of a company called TMA Group of Companies Ltd.

TMA Australia was, until 2 December 2009, called TMA Group of Companies Pty Limited. On that date the first plaintiff changed its name to its present name.

Both plaintiffs are incorporated in Australia. Relevantly, they have engaged in the business of supplying car parking guidance systems for installation in car parks, including shopping centre car parks, since 2008.

From its inception until 30 June 2011 the business was conducted by TMA Australia. TMA Tech has conducted the business since 1 July 2011.

The first defendant ("Indect E & D") is a company incorporated in Austria. Indect E & D has at relevant times engaged in the business of supplying hardware and software components for car parking guidance systems. Indect E & D's factory and warehouse facilities are situated in Austria. Orders for products sold by Indect E & D must be sent to Austria, and the product delivered from there. Indect E & D maintains a computer facility in Austria which can be used for the remote diagnosis and rectification of defects in the software components of Indect E & D's car parking guidance systems installed in other countries, such as Australia.

The second defendant ("Indect PL") is an Australian company. It is almost wholly owned by Indect E & D. Indect PL has from time to time acted as the Australian representative for Indect E…

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: [2013] NSWSC 1375
Decision Date: 20 September 2013

CaseChat Overview and Summary

The parties involved in this case were TMA Australia Pty Ltd, a company based in Australia, and Indect Electronics and Distribution GmbH, a German company. The dispute centred around allegations of breach of contract, including the presence of implied terms in the contract, as well as claims of conventional estoppel and unconscionable conduct by the defendant. The matter was heard in the Federal Court of Australia. The primary issue for the court to determine was whether an interlocutory injunction should be granted to prevent the defendant from engaging in certain activities that the plaintiff argued constituted a breach of contract. Additionally, the court had to consider whether the balance of convenience favoured the plaintiff and whether the defendant's assurances were sufficient to prevent the need for such an injunction.

The court examined the balance of convenience and whether an interlocutory injunction was necessary to preserve the rights of the parties pending the final determination of the case. The plaintiff argued that the defendant's actions constituted a breach of the contract, including the existence of implied terms, and that the defendant had engaged in conventional estoppel and unconscionable conduct. The defendant, on the other hand, maintained that its actions were justified and that the plaintiff's concerns were unfounded. The court found that the balance of convenience favoured the plaintiff, as the defendant's actions could potentially cause significant harm to the plaintiff if the injunction was not granted. Furthermore, the court determined that the defendant's assurances were not sufficient to prevent the need for an interlocutory injunction, as they were not unequivocal and did not address the core concerns raised by the plaintiff.

As a result, the court granted the plaintiff's application for an interlocutory injunction, restraining the defendant from engaging in the activities that constituted a breach of contract, including the presence of implied terms, and from engaging in conventional estoppel and unconscionable conduct. The court held that the plaintiff had demonstrated a strong likelihood of success at the final hearing and that the balance of convenience favoured the granting of the injunction. The court also emphasised the importance of protecting the plaintiff's rights pending the final determination of the case. The final orders of the court included the granting of the interlocutory injunction, as well as directions for the parties to proceed with the final hearing of the case.

Orders