Tyro Payments Ltd v Kounta Pty Ltd (No 2)

Tyro Payments Ltd sought an injunction to enforce a twelve-month restraint of trade clause against Kounta Pty Ltd. The dispute was heard and determined in the Federal Court of Australia. Tyro sought an injunction enforcing a twelve-month restraint of trade clause against Kounta, following a final judgment in their favour. Kounta opposed the injunction and applied for a stay pending the filing and determination of an appeal against that judgment.

The court considered the principles for granting a stay of an injunction, including whether the applicant had made out a strong case on the merits of the appeal, whether the applicant would suffer irreparable loss if the stay was not granted, and whether the balance of convenience favoured the applicant. The court determined that Kounta had not made out a strong case on the merits of the appeal, and that the balance of convenience did not favour the applicant. The court found that the preservation of the status quo required the preservation of the restraint period, not Kounta’s business model and systems. Absent a stay, the restraint period would further expire before the determination of the appeal, and the subject matter of the proceedings would be substantially destroyed. The difficulties in assessing damages should fall on the unsuccessful party at trial. It was too early to say whether complying with the injunction was too difficult for Kounta.

The court refused Kounta’s application for a stay.