Transonic v Tilakee
[2021] VSC 413
•9 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S ECI 2021 02302
| TRANSONIC TRAVEL PTY LTD (ACN 103 179 326) | Plaintiff |
| v | |
| TILAKEE NOMINEES PTY LTD (ACN 125 723 748) AS TRUSTEE FOR THE MSA TRUST | First Defendant |
| MASON STUART ADAMS | Second Defendant |
| SHAKESPEARE FINANCIAL SERVICES PTY LTD (ACN 009 351 615) | Third Defendant |
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JUDGE: | Nichols J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 July 2021 |
DATE OF RULING: | 9 July 2021 |
CASE MAY BE CITED AS: | Transonic v Tilakee |
MEDIUM NEUTRAL CITATION: | [2021] VSC 413 |
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INJUNCTIONS – Interlocutory – Restraint of Trade Covenant – Form of order – Where proposed form of injunction too ambiguous or too wide – Serious question to be tried – Quia timet – Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318, followed – Daniel (A Pseudonym) v Secretary to the Department of Justice (2015) 45 VR 266, followed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr JT Rush RFD QC Mr M Tehan | Minter Ellison |
| For the First and Second Defendants | Mr D Gration | James Partners Lawyers |
| For the Third Defendant | No appearance |
HER HONOUR:
Introduction and background
By an agreement made in May 2018 the plaintiff (Transonic) purchased 60% of the shares held by the first defendant (Tilakee) in a company called Keygate Holdings Pty Ltd, which operates a travel agency business and trades as “Asia Escape Holidays” (Keygate). Transonic is part of the Helloworld Travel Limited group of companies which is a global travel organisation headquartered in Australia, with retail, corporate and wholesale elements.
The share sale agreement (SSA) was in writing and was between Tilakee as vendor, Mason Adams (the second defendant, who was then the sole director of Tilakee and operated its travel business) (Adams) as the guarantor of the vendor’s obligations under the agreement, Transonic as purchaser and Helloworld Travel Limited, which is related to Transonic. The SSA was completed on 31 May 2018 when Transonic paid $2,000,000 to Tilakee and transferred to it 171,000 shares in Helloworld, the value of which was said, on this application, to have been $880,000 at the time of the transaction.
The SSA contained vendors restraints, intended to protect the goodwill of the business against competition from Tilakee and Adams. In this proceeding Transonic seeks injunctive relief (both final and interlocutory) to enforce certain of those restraints.[1]
[1]Transonic also alleges various breaches of the SSA and related misleading conduct, which are not relevant to the present application.
By Summons dated 1 July 2021, Transonic seeks orders restraining Tilakee and Adams (together, the defendants) from engaging in conduct in breach or threatened breach of certain of the restraints. After this application was issued and before it came on for hearing the defendants consented to orders that, until the hearing and determination of the proceeding or further order, they not take any steps to:
(a) establish a new business that is the same or similar to the business carried on by Keygate Holdings Pty Ltd and/or Asia Escape Holdings Company Limited as at 31 May 2018, including the business of conducting a wholesale and retail travel business (Business), or in competition with the Business; or
(b) induce or help to induce an employee of Keygate Holdings Pty Ltd to leave their employment;
(together, orders 1 and 2).
The injunctions to which the defendants have consented reflect, with some modification, the restraints imposed by sub-clauses 15.2(a) and (d) of the SSA.
The issue in dispute is whether I should also grant an injunction against the defendants in these terms:
The first and second defendants, until the hearing and determination of this proceeding or further order not take any steps to interfere with the relationship between the Business[2] and its customers, employees and suppliers.
[2]“The Business” is the Business the subject of the SSA, as defined in the orders the subject to consent.
The proposed injunction (proposed order 3) reflects in terms, sub-clause 15.2(c) of the SSA.
There are only two issues in dispute. The defendants contend that the injunction should be refused because the evidence before the court is insufficient to establish, to the relevant standard, a breach or threatened breach of sub-clause 15.2(c). They submitted that the evidence did not establish any conduct that would independently or separately establish a breach or threatened breach of clause 15.2(c) (as distinct from sub-clauses 15.2(a) and (d)); and also that the concerns the subject of the plaintiff’s application were fully addressed by the orders to which they would consent. In that way, orders 1 and 2 expressed relief that was sufficient to address the risk of harm with which the plaintiff was concerned. The plaintiff submitted that there was sufficient evidence to establish a case of breach or threatened breach.
Secondly, the defendants submitted that an order framed in the terms of proposed order 3 would be too wide and too vague to be properly the subject of an injunction. The plaintiff says that the order is framed in ordinary, readily understandable language, plainly capable of enforcement. Moreover, the order precisely reflects the terms of the SSA, to which the defendants assented.
The defendants did not file any evidence on the application. In relation to what was not in dispute, their position was as follows:
(a) They accepted that the plaintiff’s evidence was sufficient to establish a serious question to be tried in relation to the breaches or threatened breaches of sub-clauses 15.2(a) and (d). They did not contest that issue either on the question of the sufficiency of the evidence as to the conduct said to amount to a breach or threatened breach, or as to the validity of the restraints. So much was implicit in their consent to orders 1 and 2. On the basis of the uncontested material before me, those concessions were sensible and unsurprising.
(b) They did not contest that there was a serious question to be tried in relation to the validity of the restraint imposed by sub-clause 15.2(c) (whether it reasonably protected a legitimate interest of the plaintiff).
(c) They did not contend that there would be any prejudice to them by issuing of the disputed injunction (proposed order 3) save implicitly in relation to the construction issue (the terms of the order), or rely on any material explaining the conduct the subject of the applications. Their solicitors wrote to the plaintiff’s solicitors on 6 July 2021, stating their instructions that the defendants “have and will continue to abide by the terms of the SSA”. Accordingly, the defendants did not contend that the balance of convenience favoured a refusal of the injunction, other than by reference to the discretionary consideration that the terms of proposed order 3 were too broad and too vague to be properly the subject of an injunction.
The principles for establishing an entitlement to interlocutory injunctive relief are well established. An applicant must show that there is a serious question to be tried by making out a prima facie case in the sense of demonstrating that there is a sufficient likelihood of success at trial to justify the preservation of the status quo pending the determination of the parties’ rights at trial, in the circumstances. This does not mean that the applicant has to establish that it is more likely than not that it will succeed at trial. How strong the probability needs to be depends upon the nature of the rights asserted and the practical consequences likely to flow from the relief sought.[3] The applicant must also establish that the balance of convenience favours the granting of an injunction. The Court should take whichever course appears to carry the lowest risk of injustice, should it turn out to have been wrong in the sense of granting an injunction to a party who fails to establish its right at trial or failing to grant an injunction to a party who succeeds at trial.[4]
[3]ABC v O’Neill (2006) 227 CLR 57 at 68 [19], 82 [65].
[4]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65.
Incorporated within the consideration of “balance of convenience”, or sometimes considered as a separate matter, is the question whether damages would be an inadequate remedy, were the injunction refused.[5] The plaintiff submitted that the defendants’ attempts to set up a competing or similar business involved the use of confidential information which had been built up over years, the loss of which could not be remedied by an award of damages. The defendant did not contend that the injunction should be refused on this basis.
[5]Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153.
These principles are not to be applied in isolation from one another, but must be considered together. In considering where the lower risk of injustice lies, all relevant factors are to be weighed in the balance. The strength of the applicant’s case and their chances of success may be a relevant matter when assessing the balance of convenience.[6]
[6]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65.
Where a quia timet injunction is sought, the onus is on the applicant to prove that the breach is likely to occur if the injunction is not granted. The authorities do not disclose a fixed or absolute standard of proof required.[7] The risk of a breach occurring will be balanced against the damage that the applicant will suffer if it does occur and the degree of hardship or inconvenience to the respondent if the injunction is grant, in an attempt to do justice between the parties.[8]
[7]Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261.
[8]Copyright Agency Ltd v Haines [1982] 1 NSWLR 182, 192.
Breach or threatened breach of clause 15.2(c)
Relevantly, clause 15.2 of the SSA imposes a restraint in the following terms:
The Vendor undertakes to the Purchaser that the Prohibited Persons will not:
(a)engage in a business or an activity that is:
(i)the same or similar to the Business or any part or parts of the Business; or
(ii)in competition with the Business or any part or parts of the Business;
(b)solicit, canvass, approach or accept an approach from a person who was at any time during the 6 months ending on the Completion Date a customer of the Company or the Business with a view to obtaining their custom in a business that is the same or similar to the Business or is in competition with the Business;
(c)interfere with the relationship between the Company or the Business and its customers, licensors, employees or suppliers;
(d)induce or help to induce an employee of the Company to leave their employment; or
(e)use a logo, symbol, trade mark or business name which may be misleading or deceptively similar to, or likely to be confused with, a logo, symbol, trade mark or business name owned or used by the Company.
“Prohibited Person” is defined to include the vendor, its associates and Adams. “Business” is defined to mean “the business carried on by Keygate or Asia Escapes Holiday Company Limited”. “Company” is defined to mean Keygate.
The conduct established by the plaintiff’s evidence was as follows.
In August 2020 a shortfall in company funds to meet customer refunds was detected. In March 2021, Adams was stood down from his role at Keygate. On about 3 June 2021 Transonic gained access to Keygate’s email accounts, including the emails received and sent by Adams using his company email address between March and April 2021.[9]
[9]Ibid.
On 16 March 2021, Adams received from Rohanna Adamy (an employee of Keygate at that time) an email entitled “contacts” which attached an excel document setting out Keygate’s supplier’s contact details. On 19 March 2021, Adams forwarded the email and attachments to his personal email address.
On 22 March 2021, Adams received from Rohanna Adamy an email which attached an excel document setting out details of Keygate’s suppliers located in Bali. On 19 April 2021, Adams forwarded the email and attachments to his personal email address.
On 22 March 2021, Adams received from Heidi Schleising (an employee of Keygate at that time), an email entitled “Marketing Passwords” which attached documents setting out passwords for Keygate’s online accounts, including g-mail, social media and some supplier accounts. On 19 April 2021, Adams forwarded the email and attachment to his personal email address.
Adams exchanged emails with Paul Ramsay, a director of a company named Travel and Sports Australia, on 20-22 March 2021. Adams and Ramsay described preparations that I infer concerned the setting up of a business in the travel industry. They spoke of start-up costs, “structure” and “budget”, mentioned “our plan” and “getting to market”. In one email Adams told Ramsay that “the industry has been destroyed” and that he expected “the old timers” to leave.
In a number of exchanges Adams and Ramsay discussed individuals, by name, who might work for them, and the rates at which they were then being paid. Adams said to Ramsay:
The timing will be perfect…I have spoken to Samantha – our first potential staff member (been with me 15 years). She is ready to roll – May/June/July whenever…
I have the next 3 or 4 lined up after her [Samantha]…that should get us to about $20m!...
Samantha is currently on $55K plus Super as a permanent employee. But works part time (30 hours a week). So $27/hr plus super. Depends if we go down the Permanent or casual path. … All my Main Girls are on $55K plus super. Carlene obviously more, hence we need several before we hire a big gun like her… Sammy has worked with me for 15 years, Vineeta 6/7 and Jasu 3 or 4…great little team.
And if we have a great system (like we do) then we can do several million each through these ladies (all the more difficult enquiries) and 80-90% via the system… Praise the Lord!!! $10 - $15 million TTV within 12 months pretty easily! All shareholders work for free … BOOM!
They also discussed obtaining a “fed grant” which I infer from the context in which it was discussed, was a wage subsidy of some kind, such as the JobKeeper scheme (although the scheme was not named).
It should be recalled in this context that while the defendants denied any wrongdoing (and said they were not and were not intending to establish a competing business), they accepted that the evidence was sufficient to establish a serious question that they had breached clauses 15(2)(a) and (d) of the SSA, which prohibited them from engaging in a business or activity the same or similar to the Business or part of it or in competition with the Business or a part of it, or inducing or helping to induce an employee of the Company leave their employment. As I have said, those concessions were sensible.
The evidence established that Adams (together with one Ramsay) was engaged in preparations to set up a new business in the travel industry. The Adams emails did not describe the nature of the business with any particularity – they did not discuss the sector or sectors in which the new business was intended to operate, or what its service and product offerings would be. I infer that Adams was intending to engage some then employees of Keygate in his new venture. Although the evidence was limited, noting the defendants’ concessions regarding clause 15.2(a) and (d) of the SSA, it was evidently accepted that at least some of the individuals discussed in the emails were then employees of Keygate. That would also follow from Adams’ statements that some of them had worked for him for long periods of time.
Having regard to the evidence regarding staff members, and the defendants’ concessions in respect of clause 15.2(d), I accept the plaintiff’s submission that there is sufficient evidence to establish a serious question to be tried in respect of the defendants’ breaches or threatened breaches of clause 15.2(c), at least in respect of employees. Acts directed towards engaging employees of the Business in a competing business, may be properly characterised as conduct that interferes with the relationship between the Business and its employees. The meaning of “interference” and the difficulty of adequately defining its context for the purpose of framing injunctive relief is discussed below in the context of the proposed order 3, but for the purposes of characterising the particular conduct the subject of the emails, no more need be said.
As to conduct that “interferes” with the relationships between the Business and its customers, there was no evidence of any actual conduct of the defendants directed towards or concerning customers of the Business. However, it was accepted that there was a serious question that the defendants had breached or threatened to beach clause 15.2(a) of the SSA by taking steps to establish a business that was the same, similar or competing. Where there is established a competing business or one of the same or similar kind, using at least some of the same employees, the inference that the competing business will seek to solicit the customers of the existing business may arise. The existing evidence would not found that inference on a final basis, but on an application for an interlocutory injunction where the balance of convenience factors do not otherwise weigh in the defendants’ favour, the standard to which the risk of infringing conduct must be established will not be exacting. Insofar as solicitation of customers may be considered a form of interference with existing customer relationships, the evidence would be on balance (but by a narrow margin) sufficient to establish a serious question in that respect. There are other issues informing the disposition of the application, as discussed below. The injunction was not framed in terms of solicitation.[10]
[10]SSA sub-clause 15.2(b) prohibits the solicitation, canvassing or approaching of persons who were customers of the business at any time during the 6 months ending on the completion date for the SSA, with a view to obtaining their custom in a business that is the same or similar to the Business or in competition with it. The relationship between the subject matter of that clause and clause 15.2(c) was not the subject of submissions.
As to conduct that “interferes” with the relationships between the Business and its suppliers, the evidence was that Adams had obtained lists of the Business’ suppliers – a general list and a list of suppliers located in Bali – and their contact details. He did so in the context of taking steps to establish a competing or similar business (the latter fact being accepted to have been established sufficiently for the purposes of a serious question). The plaintiff submitted that I should infer in those circumstances that the contact lists had been obtained for the purposes of the defendants interfering with the Business’ relationships with its suppliers. That raises the question what “interference” with a supplier-business relationship might mean – not in the abstract, but in relation to the facts here. A competing or similar business might use supplier contact lists to somehow affect the existing business-supplier relationship by seeking to persuade the supplier to supply the new business and not to supply the existing business – say by offering to pay better prices for the same services. A competing business might also say certain things to the supplier to damage the confidence of the supplier in the reputation of the existing business. Other examples might be formulated. However, a competing business might use supplier lists to contact and itself use those suppliers in its business, without interfering with the supplier’s relationships with the existing business. The likelihood of interference with supplier relationships occurring in this particular industry or among these particular persons was not addressed in the evidence. There was nothing from which I could conclude that there was a risk that if a supplier of goods or services to Keygate commenced supplying a new competing or similar business, it would be unable, less able or less willing to continue to supply the existing business, or that its relationship with the existing supplier would in some other way be damaged.
Scope and form of injunction
As noted earlier, the defendants submitted that the form of proposed order 3 was too broad and ambiguous to be properly the subject of an injunction. The plaintiff said it was expressed in the language of the contract which was ordinary, and readily comprehensible.
It is well established that an applicant for an interlocutory injunction must have a legal or equitable right to final relief.[11] I accept the plaintiff’s submission that in circumstances where the basis for relief is founded in a negative covenant, there is a strong foundation for granting an injunction.[12]
[11]Australian Broadcasting Corp v Lenah Games Meats Pty Ltd (2001) 208 CLR 199, [11]; JC Williamson Ltd v Lukey (1931) 45 CLR 282 (JC Williamson).
[12]JC Williamson; Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181, [102] per Callinan J (in dissent in the result but not on this issue); Broken Hill Proprietary Co Ltd v Hapag-Lloyd Aktiengesellschaft & Ors [1980] 2 NSLWR 572, at 581.
However, where an applicant has made out the case for an injunction founded on a negative covenant, the court may still refuse to grant it if the proposed form of orders is not sufficiently clear.[13] When Dixon J said in JC Williamson that “if … a clear legal duty is imposed by a contract to refrain from some act, then, prima facie, an injunction should go to restrain the doing of that act”,[14] His Honour was dealing with the question whether an injunction might have been granted to enforce an agreement upon the ground of part performance,[15] and not with a concern about enforcement of the kind that arises in this case. The principles to be applied in that respect are, as the Victorian Court of Appeal said in Optus Networks Pty Ltd v City of Boroondara[16] well settled, although their application is often a matter of difficulty. As Charles JA said –
Because a restraining injunction prevents the person affected from acting in a particular way, on pain of penalties for contempt of court, it is essential that the injunction be certain in its terms, so that the defendant may know precisely what may or may not be done pursuant to the injunction. Imprecision and ambiguity must, so far as possible, be avoided in the language used.[17]
[13]See Parker v First Avenue Hotel Co (1883) 24 Ch D 282, 286. See also Spry, Equitable Remedies, 9th ed, 387.
[14]JC Williamson, 299.
[15]JC Williamson, 296.
[16][1997] 2 VR 318 (Optus).
[17]Optus at 336, Ormiston and Calloway JJA agreeing. See also Daniel (A Pseudonym) v Secretary to the Department of Justice (2015) 45 VR 266 (Daniel). In Daniel the Court of Appeal was considering the form of a criminal supervision order. Nevertheless, the reasons make clear that in the passages cited their Honours were discussing principles applicable to injunction generally.
Importantly, the issue of an injunction should not result in a situation in which a person subject to it is called upon to draw inferences or conclusions about which persons may well differ,[18] or result in the defendant being at risk of unwitting contravention.[19]
[18]Daniel at 274.
[19]Qantas Airways Ltd v Cameron (1996) 66 FCR 246, 289.
The standard of precision required will depend on the particular circumstances. It has been recognised that the degree of precision required for an order based on a negative contractual provision between arms-length commercial parties may differ, for example, from that required for a mandatory injunction.[20] However, what is required will be fact-sensitive. Moreover, where contracting parties agree upon broad or ambiguous terms, the requirement remains that an injunction must be formulated, as far as practicable, in a way that makes it clear what the defendant is prohibited from doing. In such circumstances it will often not be enough to simply import the terms of a contract.[21] It cannot be assumed, for these purposes, that because a contracting party must be taken to know what he has agreed, nothing more is required. As the Court of Appeal explained in Optus (above) a court order for an injunction requires a greater level of precision because serious consequences attach to its performance.[22] It can be seen then, that the requirements for relative certainty and precision in injunctive orders, adjusted to the circumstances of the case, concern the administration of justice and are not matters of mere formalism or pedantry.
[20]See for example Morris v Redland Bricks Ltd [1970] AC 652 per Lord Upjohn, where the costs required to be expended upon the positive obligation were considered in construing the clarity of the form of order.
[21]Ezeatm Ltd v Zani [2014] WASC 25, [21]. See also Spry, Equitable Remedies, 9th ed., p 387.
[22]Optus, 336.
It should be recalled that assessing the degree of clarity required for an injunction is a somewhat different exercise from that ordinarily required when the question is whether a contractual term has been breached by conduct that has already occurred. The question in that context will be whether the conduct alleged amounts to a breach of the term in question. That is not to suggest that the meaning of the contract will change according to the conduct in issue, but that the scope of the interpretive task will occur within known parameters. By contrast, a person the subject of an injunction will be required to conduct a prospective analysis, construing the prohibition in relation to their potential future conduct.
Turning to the circumstances of the present case, I am not satisfied that the content of the obligation the subject of the plaintiff’s proposed order 3 is sufficiently unambiguous or clear to support an injunction.
I accept that the restraint is a negative covenant that has been agreed between commercial parties, and that some weight may be given to the express acknowledgement in the SSA that the restraint clause is reasonable and can give rise to injunctive relief.
However, this does not overcome the difficulty inherent in the present application. The broad language of the restraint is insufficiently clear for the defendants to know the boundaries of what they are restrained from doing. Specifically, the operative word, “interfere”, poses what I consider to be real difficulties for compliance. The plaintiff rightly submits that the word is an ordinary word. The restraint was not given any special content by the SSA, and very limited evidence was before me as to the type of business conducted by the parties or by participants in the travel industry, and how that might give content to the term.
“Interfere” is an ordinary word, but it is also a word that may be construed in a number of ways and is potentially capable of applying to a spectrum of conduct, about which it would be necessary to draw inferences, about which inferences reasonable minds might differ. The Cambridge dictionary offers these definitions: “to involve yourself in a situation when your involvement is not wanted or is not helpful”; and “if something or someone interferes with a situation or a process, it spoils it or prevents its progress”. The Merriam-Webster dictionary defines it this way: “to interpose in a way that hinders or impedes: come into collision or be in opposition”. The subject of the “interference” in the restraint is the Business’ relationships with its customers, suppliers or employees. In that context, a person seeking to comply with an injunction against interfering with the relationships between the Business and its customers or suppliers may well need to draw inferences about the effect of what certain conduct might be; and how it might be perceived by the customer or supplier, or by the Business. The nature and dimensions of the relationship protected by the restraint may well possess features of which the defendant is unaware and which cannot be reasonably discovered.
It is no answer to this difficulty to posit particular examples and characterise them as falling within or outside of the prohibition (a “know it when you see it” assessment). It may well be true that interfering with a relationship is something that in certain circumstances can be readily recognised once it has occurred and sufficient facts are known (what happened, what impact it had and so on). In that context, the fact that contractual terms concern the “ordinary” concept of “interference with relationships” might be instructive. But as discussed, the concern in this context is a prospective assessment by a lay person.
An injunction expressed in general terms may be permitted where it is not possible to formulate the order in a more specific way, for example where an injunction is sought restraining the use of confidential information and it is not feasible to distinguish between what is and is not in the public domain.[23]
[23]See for example, Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 per Callinan J (in dissent on the result but not on this issue); Kirkpatrick v Kotis [2004] 62 NSWLR 567, [58].
It is apparent that for the purposes of seeking interlocutory relief, the restraint was capable of being framed more narrowly in reference to the conduct in issue. This case is to be distinguished from cases in which generally expressed orders have been upheld on the basis that a more precise formulation was not possible.[24] It is not for the court to formulate orders which “may meet the plaintiffs case”.[25] The plaintiff did not propose more concrete or limited form of order. Further, as observed, there was limited evidence as to the context in which the restraint would operate. It would be inappropriate, then, for me to attempt to formulate some other form of order to capture the proposed restraint.
[24]Maggbury Pty Ltd v Hafele Aust Pty Ltd (2001) 210 CLR 181 per Callinan J.
[25]Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33, 42.
Disposition
As discussed, in determining an application of this kind the Court should take whichever course appears to carry the lowest risk of injustice, should it turn out to have been wrong in the sense of granting an injunction to a party who fails to establish its right at trial or failing to grant an injunction to a party who succeeds at trial.[26]
[26]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65.
The plaintiff’s evidence establishing a serious question (albeit by a narrow margin in some respects) concerning a breach or threatened breach of sub-clause 15(2)(c) of the SSA, and the absence of a risk of prejudice to the defendant would, absent other considerations, favour the grant of an injunction. That is not the end of the matter in this case, however. There are two further considerations.
The subject matter of the injunction, which is reflected in its form, gives rise to real difficulties with compliance, for the reasons discussed. The required form of injunction is typically addressed as a discrete consideration but it might also be said that to subject the defendants to an uncertain obligation with the attendant consequences is not in the interests of justice.
On the other hand (although this consideration points in the same way) the plaintiff will have the protection afforded by orders 1 and 2 which are directly addressed to the conduct the subject of the plaintiff’s evidence. Although I accept that the contractual obligations imposed by sub-clauses 15.2(a), (c) and (d) do not completely overlap, there is considerable force in the defendants’ submission that the concerns the subject of the plaintiff’s application were fully addressed by the orders to which they would consent. This is therefore not a case of the kind in which it is “better to take the risk that the defendant may have some problems in comprehending exactly what the injunction covers, rather than make no injunction at all”. [27]
[27]Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33, 41.
For those reasons, I refuse the plaintiff’s application for an injunction in the form of proposed order 3. Orders will be made in form of orders 1 and 2, on the giving of the usual undertakings.
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