Dialog Pty Ltd v Addease Pty Ltd [2002] FCA 600

Dialog Pty Ltd v Addease Pty Ltd [2002] FCA 600

The application was to enforce Dialog's contractual obligation to provide security, not to obtain Mareva-type relief. Mihailides established a serious question to be tried that he was constructively dismissed and entitled under clause 3(c) to payments totalling $450,000 secured by bank guarantee. Given Dialog sought to retain the Business Sale Agreement while setting aside only the Contract of Employment and Commission Agreement, it was unlikely the Court would set aside the Contract of Employment alone. The possible equitable set-off did not remove the contractual right to security. Dialog had agreed to burden its assets contingently in this way and showed no greater prejudice than it...

Jurisdiction
Australia
Judgment Date
10 May 2002
Procedural Posture
Application for Interlocutory Mandatory Injunction / Notice of Motion for Interlocutory Relief in Federal Court Proceedings
Outcome
Interlocutory mandatory injunction granted in favour of George Michael Mihailides; Dialog ordered to provide the bank guarantee and pay costs of the application.
Legal Topics
['interlocutory Mandatory Injunction' 'bank Guarantee as Contractual Security' 'constructive Dismissal' 'misleading or Deceptive Conduct' 'balance of Convenience']
['practice and Procedure' 'contract Law' 'employment Law' 'trade Practices'] ['interlocutory Mandatory Injunction' 'bank Guarantee as Contractual Security' 'constructive Dismissal' 'misleading or Deceptive Conduct' 'balance of Convenience']

Case Brief

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Procedural Posture

Application for Interlocutory Mandatory Injunction / Notice of Motion for Interlocutory Relief in Federal Court Proceedings

Legal Issues

  1. 1 ['Whether Mihailides had a serious question to be tried that he was constructively dismissed and entitled under clause 3(c) of the Contract of Employment to payments secured by bank guarantee.' 'Whether the balance of convenience favoured granting an interlocutory mandatory injunction requiring Dialog to provide the bank guarantee.' 'Whether the Court had a high degree of assurance that at trial it would appear the mandatory interlocutory injunction was rightly granted.' 'Whether the relief sought was properly characterised as enforcement of a contractual obligation rather than a Mareva-type injunction.']

Ratio Decidendi

The application was to enforce Dialog's contractual obligation to provide security, not to obtain Mareva-type relief. Mihailides established a serious question to be tried that he was constructively dismissed and entitled under clause 3(c) to payments totalling $450,000 secured by bank guarantee. Given Dialog sought to retain the Business Sale Agreement while setting aside only the Contract of Employment and Commission Agreement, it was unlikely the Court would set aside the Contract of Employment alone. The possible equitable set-off did not remove the contractual right to security. Dialog had agreed to burden its assets contingently in this way and showed no greater prejudice than it...

Court Disposition

Interlocutory mandatory injunction granted in favour of George Michael Mihailides; Dialog ordered to provide the bank guarantee and pay costs of the application.

Orders

  • ['The cross-respondent, within fourteen days of the date of this order, provide to the second cross-claimant a bank guarantee securing payment by the cross-respondent of $150,000 per year until 30 November 2004 in accordance with clause 3(c) of a Contract of Employment between the cross-respondent, as employer, and...