Howard, John Campbell & Anor v PD Mortgage Services Pty Ltd & Ors [1996] FCA 1109

Howard, John Campbell & Anor v PD Mortgage Services Pty Ltd & Ors [1996] FCA 1109

The application for interlocutory injunctive relief must be refused as the issues between the applicants (particularly the first applicant) and the first respondent are res judicata, having been adjudicated upon by the Supreme Court of Queensland. In relation to the second applicant, while the order of the Supreme Court was interlocutory, the facts relied upon for relief were fully argued before that court, and it is inappropriate for the Federal Court to indirectly vary or set aside its operative orders. The proper forum for seeking variation or further relief is the Supreme Court of Queensland.

Jurisdiction
Australia
Judgment Date
17 December 1996
Procedural Posture
Application for Interlocutory (injunctive) Relief / Decision on Notice of Motion for Interlocutory Injunction
Outcome
Application for interlocutory injunctive relief dismissed. Costs awarded to first respondent.
Legal Topics
['injunctions' 'mortgagee Rights' 'res Judicata' 'trade Practices Act 1974 (cth)' 'interlocutory Orders']
['property Law' 'civil Procedure' 'equity'] ['injunctions' 'mortgagee Rights' 'res Judicata' 'trade Practices Act 1974 (cth)' 'interlocutory Orders']

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Procedural Posture

Application for Interlocutory (injunctive) Relief / Decision on Notice of Motion for Interlocutory Injunction

Legal Issues

  1. 1 ['Whether the applicants are entitled to interlocutory injunctive relief restraining the first respondent as mortgagee from exercising powers under relevant mortgages' 'Whether issues between first respondent and first applicant are res judicata due to the Supreme Court of Queensland order' 'Whether the Federal Court should grant injunctive relief to the second applicant notwithstanding interlocutory orders made by the Supreme Court of Queensland']

Ratio Decidendi

The application for interlocutory injunctive relief must be refused as the issues between the applicants (particularly the first applicant) and the first respondent are res judicata, having been adjudicated upon by the Supreme Court of Queensland. In relation to the second applicant, while the order of the Supreme Court was interlocutory, the facts relied upon for relief were fully argued before that court, and it is inappropriate for the Federal Court to indirectly vary or set aside its operative orders. The proper forum for seeking variation or further relief is the Supreme Court of Queensland.

Court Disposition

Application for interlocutory injunctive relief dismissed. Costs awarded to first respondent.

Orders

  • ['The notice of motion filed 11 December 1996 be dismissed.' "The first and second applicants pay the first respondent's costs of and incidental to the notice of motion to be taxed if not agreed."]