AA Shi Pty Ltd v Avbar Pty Ltd [2010] FCA 368

AA Shi Pty Ltd v Avbar Pty Ltd [2010] FCA 368

The Court was not prepared to find an absence of full disclosure or to discharge the interim injunction because the respondents relied principally on a solicitor's affidavit containing largely hearsay evidence with scant identification of sources, some exhibits were inadmissible, and the alleged non-disclosure of a 25 March 2010 letter was not shown to be material to the urgent grant of relief or to involve bad faith. The evidence remained incomplete and serious questions to be tried remained, so the notice of motion was adjourned and the interim injunction remained in place.

Jurisdiction
Australia
Judgment Date
16 April 2010
Procedural Posture
Notice of Motion to Discharge Ex Parte Interim Injunction Under Trade Practices Act 1974 (cth) / Hearing of Respondents' Notice of Motion; Adjourned to 28 April 2010
Outcome
Hearing of the respondents' notice of motion adjourned; costs reserved; interim injunction not discharged at this stage.
Legal Topics
['ex Parte Interim Injunction' 'full Disclosure of Material Facts' 'hearsay Evidence at Interlocutory Stage' 'trade Practices (industry Codes – Oilcode) Regulations 2006 (cth)']
['practice and Procedure' 'trade Practices' 'evidence'] ['ex Parte Interim Injunction' 'full Disclosure of Material Facts' 'hearsay Evidence at Interlocutory Stage' 'trade Practices (industry Codes – Oilcode) Regulations 2006 (cth)']

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Procedural Posture

Notice of Motion to Discharge Ex Parte Interim Injunction Under Trade Practices Act 1974 (cth) / Hearing of Respondents' Notice of Motion; Adjourned to 28 April 2010

Legal Issues

  1. 1 ['Whether the applicant failed to make full disclosure of material facts when obtaining the ex parte interim injunction.' "Whether the respondents' evidence supported discharge of the interim injunction." 'Whether the alternative orders sought by the respondents requiring payment by the applicant should be made.']

Ratio Decidendi

The Court was not prepared to find an absence of full disclosure or to discharge the interim injunction because the respondents relied principally on a solicitor's affidavit containing largely hearsay evidence with scant identification of sources, some exhibits were inadmissible, and the alleged non-disclosure of a 25 March 2010 letter was not shown to be material to the urgent grant of relief or to involve bad faith. The evidence remained incomplete and serious questions to be tried remained, so the notice of motion was adjourned and the interim injunction remained in place.

Court Disposition

Hearing of the respondents' notice of motion adjourned; costs reserved; interim injunction not discharged at this stage.

Orders

  • ['The hearing of the notice of motion filed by the respondents on 16 April 2010 be adjourned until 10.15 am on 28 April 2010.' 'Costs be reserved.']