Universal Publishers Pty Ltd v Australian Executor Trustees Ltd - [2013] NSWSC 2021

Supreme Court

New South Wales

Medium Neutral Citation: Universal Publishers Pty Ltd v Australian Executor Trustees Limited [2013] NSWSC 2021
Hearing dates: 11 December 2013
Decision date: 24 December 2013
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
Refer to paras [89]-[91] of judgment.

Catchwords: EQUITY - equitable remedies - injunctions - interlocutory injunctions - whether an interlocutory injunction should be granted pending outcome of further proceedings - whether defendant is entitled to demand Bank Guarantee for alleged breach of lease by plaintiff - whether alleged or actual breach of lease is required - construction of lease agreement - serious question on determination of breach of lease to be tried in further proceedings - balance of convenience - whether damages an adequate remedy - likely plaintiff would suffer financial harm that would be difficult to quantify - balance of convenience favoured granting of interlocutory injunction.
Cases Cited: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57
Fletcher Construction Australia Ltd v Varnsdorf Pty Ltd (1998) 3 VR 812
Clough Engineering Limited v Oil & Natural Gas Corporation Limited [2008] FCAFC 136; (2008) 249 ALR 458
Reed Construction Services Pty Ltd v Kheng Seng (Aust) Pty Ltd (Austin J, New South Wales Supreme Court, 20 November 1998, unreported BC9806316)
FMT Aircraft Gate Support Systems v Sydney Ports Corporation [2010] NSWSC 1108
Patterson Building Group Pty Ltd v Holroyd City Council [2013] NSWSC 1484
ALYK (HK) Limited v Caprock Commodities Trading Pty Limited [2012] NSWSC 1558
Bachmann (Pty) Limited v BHP Power New Zealand Limited [1999] 1 VR 420
Otter Group Pty Ltd v Wylaars [2013] VSC 98
Wood Hall Limited v Pipeline Authority (1979) 141 CLR 443
Hughes Bros Pty Ltd v Telede Pty Ltd [1989] BCL 210
Baulderstone Hornibrook Pty Ltd v Qantas Airways Ltd [2000] FCA 672
Lucas Stuart Pty Limited v Hemmes Hermitage Pty Limited [2010] NSWCA 283
Category: Interlocutory applications
Parties: Universal Publishers Pty Ltd (Plaintiff)
Australian Executor Trustees Limited (Defendant)
Representation: Counsel:
R A Dick SC with D J Barnett
R Newlinds SC with M Izzo
Solicitors:
Corrs Chambers Westgarth (Plaintiff)
Hunt & Hunt (Defendant)

File Number(s): 2013/363434

Judgment

HIS HONOUR: On 11 December 2013, on the second plaintiff giving the usual undertaking as to damages, I extended the injunction initially given on 3 December 2013 until further order. I did so to hold the position until I could give judgment on the application.

In these proceedings the plaintiffs seek an injunction to restrain the defendant from making a demand or calling upon a banker's undertaking provided by Westpac Banking Corporation to the defendant. The question is whether the injunction should now be discharged. I have concluded that it should not. My reasons follow.

The banker's undertaking was provided at the request of the second plaintiff, Telstra Corporation Limited. Westpac unconditionally undertook to pay on demand any sum which might from time to time be demanded by the defendant (Australian Executor Trustees Limited) ("AET") to a maximum aggregate sum of…

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 2021
Decision Date: 24 December 2013

CaseChat Overview and Summary

The plaintiff, Universal Publishers Pty Ltd, sought an interlocutory injunction against the defendant, Australian Executor Trustees Ltd, in the Supreme Court of New South Wales. The dispute arose from a lease agreement between the parties, with the plaintiff alleging a breach of the lease by the defendant. The plaintiff sought the injunction to prevent the defendant from demanding a Bank Guarantee, which the plaintiff claimed was unjust and unnecessary.

The court had to determine whether an interlocutory injunction should be granted pending the outcome of further proceedings. The central legal issues were whether the defendant was entitled to demand a Bank Guarantee for an alleged breach of the lease by the plaintiff, whether an alleged or actual breach of the lease was required for such a demand, and the construction of the lease agreement. The court also had to consider whether there was a serious question to be tried in the further proceedings and whether the balance of convenience favoured granting the interlocutory injunction.

The court examined the construction of the lease agreement and found that there was a serious question to be tried regarding the breach of lease. The balance of convenience was in favour of granting the interlocutory injunction, as the plaintiff was likely to suffer financial harm that would be difficult to quantify if the injunction was not granted. The court concluded that damages would not be an adequate remedy for the plaintiff in this case. The court ultimately granted the interlocutory injunction to the plaintiff, preventing the defendant from demanding a Bank Guarantee pending the outcome of further proceedings.

The court did not make any final orders in this interlocutory decision, as the matter was to proceed to further proceedings to determine the substantive issues. The court's decision was focused on the balance of convenience and the likelihood of the plaintiff suffering financial harm that would be difficult to quantify if the injunction was not granted.

Orders