Sensis Pty Ltd v Bivami Pty Ltd (No 3) [2012] FCA 1465

Sensis Pty Ltd v Bivami Pty Ltd (No 3) [2012] FCA 1465

The third respondent failed to demonstrate that damages would not be an adequate remedy for any loss, and the application for mandatory interlocutory injunction would improperly alter the status quo in advance of a final hearing on complex and unresolved issues; accordingly, the interlocutory application should be dismissed, and costs awarded against the third respondent.

Parties
First Applicant: Sensis Pty Ltd ACN 007 423 912; Second Applicant / Cross Respondent: Universal Publishers Pty Ltd ACN 000 087 132; Third Respondent / Cross Claimant: Australian Executor Trustees Limited as custodian for Hyperion Properties Syndicates Limited; First Respondent: Bivami Pty Ltd ACN 003 020 166; Second Respondent: Westpac Banking Corporation Limited ACN 007 457 141
Jurisdiction
Australia
Judgment Date
21 December 2012
Procedural Posture
Interlocutory Application in Ongoing Federal Court Proceeding / Interlocutory/preliminary—determination of Application for Mandatory Interlocutory Injunction
Outcome
The interlocutory application is dismissed. The third respondent is ordered to pay the costs of the applicants and the first and second respondents in respect of the application.
Legal Topics
Mandatory Interlocutory Injunction, Adequacy of Damages, Maintenance of Status Quo, Banker's Undertaking, Trusts
Practice and Procedure Injunctions Mandatory Interlocutory Injunction Adequacy of Damages Maintenance of Status Quo Banker's Undertaking Trusts

Case Brief

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Parties

Sensis Pty Ltd ACN 007 423 912

First Applicant

Universal Publishers Pty Ltd ACN 000 087 132

Second Applicant / Cross Respondent

Australian Executor Trustees Limited as custodian for Hyperion Properties Syndicates Limited

Third Respondent / Cross Claimant

Bivami Pty Ltd ACN 003 020 166

First Respondent

Westpac Banking Corporation Limited ACN 007 457 141

Second Respondent

Procedural Posture

Interlocutory Application in Ongoing Federal Court Proceeding / Interlocutory/preliminary—determination of Application for Mandatory Interlocutory Injunction

Legal Issues

  1. 1 Whether to grant a mandatory interlocutory injunction requiring Bivami Pty Ltd to call on the Banker's Undertaking for the benefit of the third respondent
  2. 2 Whether damages are an adequate remedy in lieu of interlocutory injunctive relief
  3. 3 Whether granting the injunction would improperly alter the status quo or amount to relief in advance of determination of substantive rights

Ratio Decidendi

The third respondent failed to demonstrate that damages would not be an adequate remedy for any loss, and the application for mandatory interlocutory injunction would improperly alter the status quo in advance of a final hearing on complex and unresolved issues; accordingly, the interlocutory application should be dismissed, and costs awarded against the third respondent.

Court Disposition

The interlocutory application is dismissed. The third respondent is ordered to pay the costs of the applicants and the first and second respondents in respect of the application.

Orders

  • The third respondent's interlocutory application filed 11 December 2012 is dismissed.
  • The third respondent is to pay the costs of the applicants and the first and second respondents in respect of that interlocutory application.