In the matter of NorthWest Healthcare Australia Re Limited (as trustee of each of NWH Australia Hold Trust No 2 and NorthWest Australia Hospital Investment No 2 Bid Trust) [2021] NSWSC 816

In the matter of NorthWest Healthcare Australia Re Limited (as trustee of each of NWH Australia Hold Trust No 2 and NorthWest Australia Hospital Investment No 2 Bid Trust) [2021] NSWSC 816

NorthWest did not establish a sufficiently strong case of improper purpose or frustrating conduct to justify interlocutory injunctive relief, particularly in light of the speculative nature of the asserted harm and prejudice to non-party unitholders which cannot be adequately addressed by an undertaking as to damages. The balance of convenience disfavouring the grant, and availability of damages as a remedy, outweighed the arguments for injunction.

Parties
Plaintiff/applicant: NorthWest Healthcare Australia RE Limited (as trustee of each of NWH Australia Hold Trust No 2 and NorthWest Australia Hospital Investment No 2 Bid Trust); First Defendant/first Respondent: Australian Unity Funds Management Limited; Second Defendant/second Respondent: Australian Unity Strategic Holdings Pty Ltd; Third Defendant/third Respondent: Australian Unity Limited
Jurisdiction
Australia
Judgment Date
06 July 2021
Procedural Posture
Interlocutory Application / Application for Interlocutory Injunction (dismissal)
Outcome
Application for interlocutory injunction dismissed with costs
Legal Topics
Interlocutory Injunctions, Improper Purpose, Section 1324 of Corporations Act, Frustrating Conduct, Balance of Convenience
Corporations Law Equity Interlocutory Injunctions Improper Purpose Section 1324 of Corporations Act Frustrating Conduct Balance of Convenience

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Parties

NorthWest Healthcare Australia RE Limited (as trustee of each of NWH Australia Hold Trust No 2 and NorthWest Australia Hospital Investment No 2 Bid Trust)

Plaintiff/applicant

Australian Unity Funds Management Limited

First Defendant/first Respondent

Australian Unity Strategic Holdings Pty Ltd

Second Defendant/second Respondent

Australian Unity Limited

Third Defendant/third Respondent

Procedural Posture

Interlocutory Application / Application for Interlocutory Injunction (dismissal)

Legal Issues

  1. 1 Whether the responsible entity (AUFM) acted with an improper purpose in the issue of units and other transactions announced on 9 June 2021
  2. 2 Whether challenged transactions constituted 'frustrating conduct' of NorthWest's proposal
  3. 3 Whether interlocutory injunctive relief should be granted in light of remedies, appropriateness and balance of convenience

Ratio Decidendi

NorthWest did not establish a sufficiently strong case of improper purpose or frustrating conduct to justify interlocutory injunctive relief, particularly in light of the speculative nature of the asserted harm and prejudice to non-party unitholders which cannot be adequately addressed by an undertaking as to damages. The balance of convenience disfavouring the grant, and availability of damages as a remedy, outweighed the arguments for injunction.

Court Disposition

Application for interlocutory injunction dismissed with costs

Orders

  • Plaintiff's Interlocutory Application dismissed with costs.