VAC Group Holdings Pty Ltd v Cliplyn Pty Ltd [2019] FCA 1704

VAC Group Holdings Pty Ltd v Cliplyn Pty Ltd [2019] FCA 1704

Although VAC technically established some serious question to be tried because Cliplyn denied VAC's termination was effective and the lease interests remained part of the pleaded relief, the balance of convenience clearly favoured refusing the injunction. VAC had purported to terminate the lease, accepted it had no continuing possessory right under it, sought to remain in possession on obscure terms, was in financial difficulty, had not shown any value in its undertaking as to damages, offered no security, and Cliplyn was likely to suffer unrecovered losses including unpaid rent. It followed that the interlocutory application should be dismissed and Cliplyn relieved from its undertaking.

Jurisdiction
Australia
Judgment Date
14 October 2019
Procedural Posture
Interlocutory Application for Injunction in a Commercial Lease Dispute / Application Heard and Determined on 14 October 2019
Outcome
The interlocutory application was dismissed; Cliplyn was relieved from its undertaking; the applicants were ordered to pay the respondents' costs of the interlocutory application.
Legal Topics
['interlocutory Injunction' 'lease Termination and Re Entry' 'undertaking as to Damages' 'serious Question to Be Tried' 'balance of Convenience' 'misleading or Deceptive Conduct']
['practice and Procedure' 'commercial and Corporations' 'commercial Contracts' 'australian Consumer Law'] ['interlocutory Injunction' 'lease Termination and Re Entry' 'undertaking as to Damages' 'serious Question to Be Tried' 'balance of Convenience' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Interlocutory Application for Injunction in a Commercial Lease Dispute / Application Heard and Determined on 14 October 2019

Legal Issues

  1. 1 ["Whether there was a serious question to be tried warranting interlocutory injunctive relief restraining Cliplyn from excluding VAC from the premises, terminating the lease or dealing with VAC's assets." "Whether VAC's purported termination of the lease meant the injunction was not sought to protect any legal or equitable right." 'Whether the balance of convenience favoured granting an interlocutory injunction where VAC was in financial difficulty and offered no security or evidence of value for its undertaking as to damages.' 'Whether Cliplyn should be relieved from the undertaking given to the Court on 19 September 2019.']

Ratio Decidendi

Although VAC technically established some serious question to be tried because Cliplyn denied VAC's termination was effective and the lease interests remained part of the pleaded relief, the balance of convenience clearly favoured refusing the injunction. VAC had purported to terminate the lease, accepted it had no continuing possessory right under it, sought to remain in possession on obscure terms, was in financial difficulty, had not shown any value in its undertaking as to damages, offered no security, and Cliplyn was likely to suffer unrecovered losses including unpaid rent. It followed that the interlocutory application should be dismissed and Cliplyn relieved from its undertaking.

Court Disposition

The interlocutory application was dismissed; Cliplyn was relieved from its undertaking; the applicants were ordered to pay the respondents' costs of the interlocutory application.

Orders

  • ['The interlocutory application filed by the applicants on 16 September 2019 is dismissed.' 'The first respondent be relieved from the undertaking given to the Court on 19 September 2019.' "The applicants pay the respondents' costs of the interlocutory application."]