J H Fenner & Co Ltd & Anor v Gulf Conveyor Systems Pty Ltd & Ors [1998] FCA 914

J H Fenner & Co Ltd & Anor v Gulf Conveyor Systems Pty Ltd & Ors [1998] FCA 914

The orders should not be set aside because the additional evidence did not establish a material change in circumstances or qualifying new material, and TBA's joinder did not justify reopening the interlocutory application where Fenner (UK) could have secured TBA's participation before proceedings and had made a forensic decision to proceed without it. TBA should nevertheless be joined because its joinder was not opposed and it should be a party. Indemnity costs were warranted because it would have been apparent that the motion had, at best, a remote prospect of causing the Court to set aside the earlier orders and reconsider interlocutory relief.

Jurisdiction
Australia
Judgment Date
04 August 1998
Procedural Posture
Practice and Procedure; Interlocutory Injunctive Relief / Notice of Motion to Set Aside Orders Giving Effect to Reasons Dismissing Interlocutory Relief, to Adduce Further Evidence, and to Join TBA Belting Limited
Outcome
TBA Belting Limited was joined as an applicant, leave to file an amended application was granted, but the application filed on 8 July 1998 was otherwise dismissed with indemnity costs for the respondents.
Legal Topics
['setting Aside Interlocutory Orders' 'relitigation of Interlocutory Applications' 'joinder of Parties' 'interlocutory Injunctions' 'negative Covenants' 'indemnity Costs']
['civil Procedure' 'equity' 'costs'] ['setting Aside Interlocutory Orders' 'relitigation of Interlocutory Applications' 'joinder of Parties' 'interlocutory Injunctions' 'negative Covenants' 'indemnity Costs']

Case Brief

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Procedural Posture

Practice and Procedure; Interlocutory Injunctive Relief / Notice of Motion to Set Aside Orders Giving Effect to Reasons Dismissing Interlocutory Relief, to Adduce Further Evidence, and to Join TBA Belting Limited

Legal Issues

  1. 1 ['Whether orders giving effect to reasons dismissing interlocutory injunctive relief should be set aside under Order 35 rule 7(1) of the Federal Court Rules.' 'Whether further evidence concerning the conduct of Fenner (UK) and TBL and the financial position of Gulf should be admitted as establishing a material change in circumstances or new material.' 'Whether the joinder of TBA Belting Limited created a material change in circumstances justifying reopening the interlocutory application.' 'Whether principles concerning injunctions to restrain breach of a negative covenant justified reconsideration of interlocutory relief.' 'Whether the respondents should receive costs on an indemnity basis.']

Ratio Decidendi

The orders should not be set aside because the additional evidence did not establish a material change in circumstances or qualifying new material, and TBA's joinder did not justify reopening the interlocutory application where Fenner (UK) could have secured TBA's participation before proceedings and had made a forensic decision to proceed without it. TBA should nevertheless be joined because its joinder was not opposed and it should be a party. Indemnity costs were warranted because it would have been apparent that the motion had, at best, a remote prospect of causing the Court to set aside the earlier orders and reconsider interlocutory relief.

Court Disposition

TBA Belting Limited was joined as an applicant, leave to file an amended application was granted, but the application filed on 8 July 1998 was otherwise dismissed with indemnity costs for the respondents.

Orders

  • ['Leave is granted to join TBA Belting Limited as an applicant.' 'Leave is granted to file an amended application in the same terms as the annexure marked PLG1 to the affidavit of Peter Lawrence Le Guay sworn 2 July 1998.' 'The application of the first and second applicants and TBA Belting Limited filed on 8 July...