Sensis Pty Ltd v Bivami Pty Ltd [2012] FCA 1365

Sensis Pty Ltd v Bivami Pty Ltd [2012] FCA 1365

AETL should be joined as a party under r 9.05(1)(b)(ii) and/or (iii) because its presence is necessary to ensure all issues in dispute are properly determined. The interim injunctions should be dissolved due to material non-disclosure to the Court, as relevant facts about the substitute bank guarantee request were not disclosed, which may have affected the grant of relief. Fresh injunctive relief is not warranted given the balance of convenience and undertakings now provided. Leave is granted for AETL to file a cross-claim and the application to have separate questions determined is refused as premature.

Jurisdiction
Australia
Judgment Date
03 December 2012
Procedural Posture
Interlocutory Application / Interlocutory/joinder and Injunctive Relief Applications; Orders Made on Interlocutory Applications
Outcome
Interim injunctions dissolved; AETL joined as a party; leave to file cross-claim granted; application for separate questions refused; applicants' interlocutory application dismissed; costs reserved.
Legal Topics
['joinder of Parties' 'dissolution of Interlocutory Injunctions' 'material Non Disclosure' 'cross Claim Procedure' 'construction of Lease Provisions' 'bank Guarantee Entitlement']
['practice and Procedure' 'injunctions' 'leases and Tenancies'] ['joinder of Parties' 'dissolution of Interlocutory Injunctions' 'material Non Disclosure' 'cross Claim Procedure' 'construction of Lease Provisions' 'bank Guarantee Entitlement']

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Procedural Posture

Interlocutory Application / Interlocutory/joinder and Injunctive Relief Applications; Orders Made on Interlocutory Applications

Legal Issues

  1. 1 ['Whether Australian Executor Trustees Limited (AETL) should be joined as a party to the proceedings' 'Whether interim injunctions should be set aside for non-joinder or material non-disclosure' 'Whether fresh interlocutory injunctions should be granted' 'Whether leave should be granted to AETL to file a cross-claim' 'Whether separate questions ought to be heard and determined']

Ratio Decidendi

AETL should be joined as a party under r 9.05(1)(b)(ii) and/or (iii) because its presence is necessary to ensure all issues in dispute are properly determined. The interim injunctions should be dissolved due to material non-disclosure to the Court, as relevant facts about the substitute bank guarantee request were not disclosed, which may have affected the grant of relief. Fresh injunctive relief is not warranted given the balance of convenience and undertakings now provided. Leave is granted for AETL to file a cross-claim and the application to have separate questions determined is refused as premature.

Court Disposition

Interim injunctions dissolved; AETL joined as a party; leave to file cross-claim granted; application for separate questions refused; applicants' interlocutory application dismissed; costs reserved.

Orders

  • ['Australian Executor Trustees Limited as custodian for Hyperion Properties Syndicates Limited is joined as a party to the proceedings.' 'The interim injunctions granted by Rares J and Griffiths J on 12 and 13 November 2012 respectively are dissolved.' 'Leave is granted for AETL to file a cross-claim in the form...