Wolstenholme v Bonshaw Act Pty Ltd - [2024] ACTSC 339

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Wolstenholme v Bonshaw ACT Pty Ltd
Citation:	[2024] ACTSC 339
Hearing Dates:	13, 16 September 2024
Decision Date:	16 September 2024
Reasons Date:	31 October 2024
Before:	Taylor J
Decision:	See [66].
Catchwords:	CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for vacation of interlocutory injunction previously granted – injunction restraining sale of property – whether serious question to be tried – whether balance of convenience favours injunctive relief – injunction maintained – orders varied
Legislation Cited:	Court Procedure Rules 2006 (ACT) rr 732, 733, 1613(a)(c) Corporations Act 2001 (Cth) ss 236, 237
Cases Cited:	Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961 Cambridge Credit Corporation Ltd v Surfers’ Paradise Forests Ltd [1977] Qd R 261 Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570 Newhart Developments Ltd v Co-Operative Commercial Bank Ltd [1978] QB 814 Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG “The Niedersachen” [1983] 1 WLR 1412; [1984] 1 All ER 398 Oswal v Burrup Fertilisers Pty Ltd [2013] FCAFC 9; 295 ALR 708 Richardson v The Forestry Commission [1988] HCA 10; 164 CLR 261 Rolleston Coal Holdings Pty Ltd v ICRA Rolleston Pty Ltd [2020] QSC 331
Parties:	Tarah Louise Wolstenholme ( First Applicant) B & T Investment Group (ACT) Pty Ltd ( Second Applicant) Bonshaw ACT Pty Ltd ( First Respondent) Andrew Hewitt as Receiver of B & T Investment Group (ACT) Pty Ltd ( Second Respondent) Matthew Byrnes as Receiver of B & T Investment Group (ACT) Pty Ltd ( Third Respondent)
Representation:	Counsel P Walker SC (Senior); J Nottle (Junior) ( First and Second Applicants) B Buckland ( First Respondent) L Edwards (Second and Third Respondents)
Solicitors Bradley Allen Love Lawyers ( First and Second Applicants) McGilvray Law ( First Respondent) Piper Alderman (Second and Third Respondents)
File Number:	SC 294 of 2024

TAYLOR J:

Introduction

1․This is an application in proceeding brought by the First Respondent (Bonshaw ACT). Bonshaw ACT seeks orders vacating an injunction restraining it from terminating a contract with the Second Applicant, B & T Investment Group (ACT) Pty Ltd ACN 668 874 422 (B & T Investment).
2․The proceedings commenced by way of Originating Application on 3 September 2024 and centre on a contract for the sale of land (the Land). The First Applicant (Ms Wolstenholme) on behalf of B & T Investment, applied for and was granted an urgent ex parte injunction restraining Bonshaw ACT from terminating a contract for the sale of the Land with B & T Investment.
3․Granting the urgent ex parte injunction, Loukas-Karlsson J made the following orders:
1. An interlocutory injunction restraining the Respondents from taking any steps to terminate a contract between Bonshaw ACT Pty Ltd CAN 619 991 329 and B & T Investment Group (ACT) Pty Ltd…

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: [2024] ACTSC 339
Decision Date: 16 September 2024

CaseChat Overview and Summary

The case of Wolstenholme v Bonshaw Act Pty Ltd involved the applicant, Wolstenholme, who sought to vacate an interlocutory injunction previously granted by the court. The injunction in question restrained the sale of a property, and the respondent, Bonshaw Act Pty Ltd, sought to maintain the injunction. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether a serious question to be tried existed and whether the balance of convenience favoured maintaining the injunctive relief.

The primary legal issues that the court had to decide were whether there was a serious question to be tried regarding the applicant's claim and whether the balance of convenience favoured maintaining the injunction. The court considered the applicant's arguments that there was no serious question to be tried and that the balance of convenience favoured vacating the injunction. The court also considered the respondent's arguments that a serious question to be tried did exist and that the balance of convenience favoured maintaining the injunction.

The court concluded that a serious question to be tried did exist in relation to the applicant's claim. The court found that the applicant had failed to establish that there was no serious question to be tried. The court also found that the balance of convenience favoured maintaining the injunction, as the respondent would suffer significant prejudice if the injunction was vacated. The court therefore maintained the injunction but varied the orders to provide some relief to the applicant.

The court ordered that the injunction be maintained, but with certain variations to provide some relief to the applicant. The court also ordered that the respondent pay the applicant's costs of the application.

Orders

Orders of the court

See [66].

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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