Australian and Pacific Investment Corporation Pty Ltd v Austpac Funds Management Limited [2015] FCA 904

Australian and Pacific Investment Corporation Pty Ltd v Austpac Funds Management Limited [2015] FCA 904

The application was dismissed because, although the plaintiffs' construction of the Settlement Deed was open, they did not establish a strong prima facie case that AFML was obliged to terminate the Hotel Management Agreement or offer the Management Lot unencumbered by it. Special Condition 8 did not expressly oblige termination, the relevant notice had not effected termination before settlement, the Deed of Settlement and Release and Deed of Novation supported the defendants' position that the Hotel Management Agreement remained in force, and AFML was contractually bound to require novation if the agreement had not terminated. In any event, the balance of convenience was against an...

Jurisdiction
Australia
Judgment Date
21 August 2015
Procedural Posture
Application for Interlocutory Injunction to Restrain Sale of Property / Interlocutory Application
Outcome
Application for interlocutory injunction dismissed.
Legal Topics
['interlocutory Injunction' 'sale of Property' 'settlement Deed' 'construction of Contract' 'managed Investment Scheme' 'responsible Entity Duties' 'balance of Convenience' 'adequacy of Damages']
['practice and Procedure' 'contracts' 'corporations'] ['interlocutory Injunction' 'sale of Property' 'settlement Deed' 'construction of Contract' 'managed Investment Scheme' 'responsible Entity Duties' 'balance of Convenience' 'adequacy of Damages']

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Procedural Posture

Application for Interlocutory Injunction to Restrain Sale of Property / Interlocutory Application

Legal Issues

  1. 1 ['Whether the plaintiffs had a prima facie case or serious question to be tried that AFML breached the Settlement Deed by failing to terminate the Hotel Management Agreement and by offering the Management Lot to room owners subject to that agreement.' 'Whether, on the proper construction of clauses 4.1 and 4.2 of the Settlement Deed, AFML was obliged to offer the Management Lot and FF&E to room owners unencumbered by the Hotel Management Agreement.' 'Whether the balance of convenience favoured restraining AFML from selling the Management Lot to persons other than the room owners.' 'Whether damages would be an adequate remedy if interlocutory relief were refused.']

Ratio Decidendi

The application was dismissed because, although the plaintiffs' construction of the Settlement Deed was open, they did not establish a strong prima facie case that AFML was obliged to terminate the Hotel Management Agreement or offer the Management Lot unencumbered by it. Special Condition 8 did not expressly oblige termination, the relevant notice had not effected termination before settlement, the Deed of Settlement and Release and Deed of Novation supported the defendants' position that the Hotel Management Agreement remained in force, and AFML was contractually bound to require novation if the agreement had not terminated. In any event, the balance of convenience was against an...

Court Disposition

Application for interlocutory injunction dismissed.

Orders

  • ['The application for an interlocutory injunction be dismissed.' "The plaintiffs pay the defendants' costs of the application."]