Acqualounge Manly P/L v Barecall P/L [2005] NSWSC 627

Acqualounge Manly P/L v Barecall P/L [2005] NSWSC 627

Although there was a serious question to be tried as to whether the defendant's possession was contrary to s 440C, the defendant's reliance on s 441F was fairly arguable and Pt 5.3A did not displace the usual requirement for an undertaking as to damages of some worth. The plaintiff's undertaking was insufficient...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
23 June 2005
Procedural Posture
Interlocutory Application for an Injunction to Restrain the Defendant Lessor From Interfering With the Plaintiff Lessee's Use or Occupation of Leased Premises / Interim Injunction Application Before Final Hearing
Outcome
Application for interlocutory relief refused.
Legal Topics
['interlocutory Injunction' 'undertaking as to Damages' 'voluntary Administration' 'lessor Taking Possession' 'corporations Act 2001 (cth) S 440 C' 'corporations Act 2001 (cth) S 441 F' 'corporations Act 2001 (cth) S 443 B']
['practice and Procedure' 'corporations Law' 'property Law' 'leases'] ['interlocutory Injunction' 'undertaking as to Damages' 'voluntary Administration' 'lessor Taking Possession' 'corporations Act 2001 (cth) S 440 C' 'corporations Act 2001 (cth) S 441 F' 'corporations Act 2001 (cth) S 443 B']

Source-derived case record

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Procedural Posture

Interlocutory Application for an Injunction to Restrain the Defendant Lessor From Interfering With the Plaintiff Lessee's Use or Occupation of Leased Premises / Interim Injunction Application Before Final Hearing

Legal Issues

  1. 1 ["Whether there was a serious question to be tried as to whether the defendant's possession of the property was contrary to s 440C of the Corporations Act 2001 (Cth)." 'Whether s 441F of the Corporations Act 2001 (Cth) could apply because of steps taken before the plaintiff entered administration.' 'Whether Pt 5.3A and s 443B displaced the usual requirement that the plaintiff provide an undertaking as to damages of some worth for interlocutory injunctive relief.']

Ratio Decidendi

Although there was a serious question to be tried as to whether the defendant's possession was contrary to s 440C, the defendant's reliance on s 441F was fairly arguable and Pt 5.3A did not displace the usual requirement for an undertaking as to damages of some worth. The plaintiff's undertaking was insufficient because there were strong grounds to suspect insolvency and no administrator, shareholder or director offered an undertaking. Interlocutory relief was therefore refused.

Court Disposition

Application for interlocutory relief refused.

Orders

  • ['Application for interlocutory relief refused.' 'The parties should attend on the Chief Judge in chambers for the fixing of a hearing date for next week.' 'Costs will be costs in the proceedings.']