N.A. Retail Solutions Pty Ltd v St George Bank Limited [2010] FCA 290

N.A. Retail Solutions Pty Ltd v St George Bank Limited [2010] FCA 290

The further application was competent because the earlier refusal was materially affected by uncertainty about the identity and status of the proper respondent, the urgency of the first application, and incomplete evidence, and because the justice of the matter required the Court to entertain the amended application. Serious questions to be tried existed concerning the termination of the Merchant Facilities and alleged contractual and statutory breaches. The evidence showed that without EFTPOS facilities the applicants risked loss that could be unquantifiable and possibly threaten continued trading, so damages would not be adequate. Westpac did not demonstrate sufficient prejudice or risk...

Jurisdiction
Australia
Judgment Date
30 March 2010
Procedural Posture
Application for Interlocutory Mandatory Injunctive Relief Concerning Termination of EFTPOS Merchant Facilities / Second Application for Interlocutory Relief After an Earlier Interlocutory Application Was Dismissed
Outcome
Interlocutory relief granted; St George Bank Limited removed as a respondent and Westpac Banking Corporation Limited remained the sole respondent.
Legal Topics
['second Interlocutory Application' 'mandatory Injunction' 'implied Duty of Good Faith' 'unconscionable Conduct' 'termination of Merchant Agreement' 'adequacy of Damages' 'balance of Convenience' 'financial Sector Business Transfer']
['practice and Procedure' 'injunctions' 'contract Law' 'trade Practices' 'banking and Financial Services'] ['second Interlocutory Application' 'mandatory Injunction' 'implied Duty of Good Faith' 'unconscionable Conduct' 'termination of Merchant Agreement' 'adequacy of Damages' 'balance of Convenience' 'financial Sector Business Transfer']

Case Brief

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Procedural Posture

Application for Interlocutory Mandatory Injunctive Relief Concerning Termination of EFTPOS Merchant Facilities / Second Application for Interlocutory Relief After an Earlier Interlocutory Application Was Dismissed

Legal Issues

  1. 1 ['Whether the applicants were entitled to bring a further application for interlocutory relief after dismissal of an earlier application seeking substantially similar relief.' 'Whether serious questions to be tried arose from the termination of the Merchant Agreements, including alleged breach of an implied term of good faith, the Code of Banking Practice, the Trade Practices Act 1974 (Cth), and the Australian Securities and Investments Commission Act 2001 (Cth).' 'Whether delay or laches prevented the grant of interlocutory relief.' 'Whether damages would be an adequate remedy for the loss of EFTPOS facilities.' 'Whether the balance of convenience favoured granting mandatory interlocutory relief requiring reinstatement of the Merchant Facilities.' 'Whether Westpac was the proper respondent following the transfer of St. George assets and liabilities.']

Ratio Decidendi

The further application was competent because the earlier refusal was materially affected by uncertainty about the identity and status of the proper respondent, the urgency of the first application, and incomplete evidence, and because the justice of the matter required the Court to entertain the amended application. Serious questions to be tried existed concerning the termination of the Merchant Facilities and alleged contractual and statutory breaches. The evidence showed that without EFTPOS facilities the applicants risked loss that could be unquantifiable and possibly threaten continued trading, so damages would not be adequate. Westpac did not demonstrate sufficient prejudice or risk...

Court Disposition

Interlocutory relief granted; St George Bank Limited removed as a respondent and Westpac Banking Corporation Limited remained the sole respondent.

Orders

  • ['Upon the First, Second and Third Applicants giving the usual undertaking as to damages, the Second Respondent, by itself, its servants or agents, is, until further order restrained from acting upon or implementing or from relying upon the notice of Termination of Merchant Facilities under the Merchant Agreement...