Nexdius Pty Ltd v Exposure Scientific LLC [2017] NSWSC 1608

Nexdius Pty Ltd v Exposure Scientific LLC [2017] NSWSC 1608

The injunction was continued because there was a serious question to be tried that Exposure Scientific was not entitled to terminate the Licence Agreement, including questions whether Nexdius had cured the relevant default, whether Mr Armstrong's communications and conduct represented satisfaction with cure, and whether demands for performance and other conduct amounted to affirmation of the Licence Agreement. The balance of convenience lay heavily in favour of Nexdius and Solar D Skincare because refusal of the injunction would jeopardise seasonal sales, existing supply commitments and substantial marketing and sponsorship expenditure, while the defendants gave no evidence of capacity to...

Jurisdiction
Australia
Judgment Date
24 November 2017
Procedural Posture
Equity Commercial List; Application Concerning Continuation of Ex Parte Interlocutory Injunction / Interlocutory Application After Ex Parte Injunction
Outcome
Interlocutory injunction continued until the hearing, subject to undertakings by Nexdius and Solar D Skincare and liberty to apply for the defendants.
Legal Topics
['interlocutory Injunction' 'ex Parte Injunction' 'material Non Disclosure' 'termination of Licence Agreement' 'cure of Contractual Default' 'waiver' 'affirmation' 'balance of Convenience' 'trade Marks']
['equity' 'contract' 'intellectual Property'] ['interlocutory Injunction' 'ex Parte Injunction' 'material Non Disclosure' 'termination of Licence Agreement' 'cure of Contractual Default' 'waiver' 'affirmation' 'balance of Convenience' 'trade Marks']

Case Brief

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Procedural Posture

Equity Commercial List; Application Concerning Continuation of Ex Parte Interlocutory Injunction / Interlocutory Application After Ex Parte Injunction

Legal Issues

  1. 1 ['Whether the ex parte injunction restraining the defendants from acting on the purported notice of termination should be continued until trial.' 'Whether the injunction should be dissolved because of material non-disclosure on the ex parte application.' 'Whether there was a serious question to be tried that Nexdius cured the alleged breach concerning ownership records for the Solar D trade mark to the satisfaction of Exposure Scientific.' 'Whether there was a serious question to be tried that Mr Armstrong and Exposure Scientific waived any entitlement to terminate or affirmed the Licence Agreement.' 'Whether the balance of convenience favoured continuation of the injunction.']

Ratio Decidendi

The injunction was continued because there was a serious question to be tried that Exposure Scientific was not entitled to terminate the Licence Agreement, including questions whether Nexdius had cured the relevant default, whether Mr Armstrong's communications and conduct represented satisfaction with cure, and whether demands for performance and other conduct amounted to affirmation of the Licence Agreement. The balance of convenience lay heavily in favour of Nexdius and Solar D Skincare because refusal of the injunction would jeopardise seasonal sales, existing supply commitments and substantial marketing and sponsorship expenditure, while the defendants gave no evidence of capacity to...

Court Disposition

Interlocutory injunction continued until the hearing, subject to undertakings by Nexdius and Solar D Skincare and liberty to apply for the defendants.

Orders

  • ['Nexdius and Solar D Skincare were to undertake to do all such things and execute all such documents as to ensure that the proceedings are prosecuted expeditiously.' 'Nexdius and Solar D Skincare were to continue to give the usual undertaking as to damages.' 'The injunction granted on 2 November 2017 was to be...