Allhours Enterprises Pty Ltd (ACN 105 534 058) v Global Food Services Pty Ltd (ACN 103 727 877) (In Administration) [2005] FCA 459

Allhours Enterprises Pty Ltd (ACN 105 534 058) v Global Food Services Pty Ltd (ACN 103 727 877) (In Administration) [2005] FCA 459

There is an arguable case that the applicant was induced to enter the contract by misleading or deceptive conduct for which relief under s 87 of the Trade Practices Act 1974 (Cth) may be available, and the charge enforcement rights, including those of assignees, are amenable to resulting variations. Given the potential for irremediable harm to the applicant if a receiver was appointed and the applicants' willingness to pay money into court and conditions to preserve the business, the balance of convenience favours granting an interlocutory injunction on appropriate conditions.

Jurisdiction
Australia
Judgment Date
20 April 2005
Procedural Posture
Interlocutory Application / Application for Interlocutory Injunction; Order Before Trial
Outcome
Interlocutory injunction granted subject to conditions.
Legal Topics
['interlocutory Injunction' 'misleading or Deceptive Conduct' 'contract for Sale of Business' 'statutory Variation of Contract' 'assignment of Contractual Rights' 'security/charge Enforcement']
['practice and Procedure' 'trade Practices'] ['interlocutory Injunction' 'misleading or Deceptive Conduct' 'contract for Sale of Business' 'statutory Variation of Contract' 'assignment of Contractual Rights' 'security/charge Enforcement']

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Procedural Posture

Interlocutory Application / Application for Interlocutory Injunction; Order Before Trial

Legal Issues

  1. 1 ['Whether interlocutory relief (injunction) should be granted restraining respondents from enforcing a charge securing payment of part of a purchase price pending trial of claims of misleading or deceptive conduct.' 'Whether s 87 of the Trade Practices Act 1974 (Cth) allows for contractual variation affecting assignees of a charge.' 'Whether representations by vendor or its agents were misleading or deceptive and induced entry into a contract at an overvalue.']

Ratio Decidendi

There is an arguable case that the applicant was induced to enter the contract by misleading or deceptive conduct for which relief under s 87 of the Trade Practices Act 1974 (Cth) may be available, and the charge enforcement rights, including those of assignees, are amenable to resulting variations. Given the potential for irremediable harm to the applicant if a receiver was appointed and the applicants' willingness to pay money into court and conditions to preserve the business, the balance of convenience favours granting an interlocutory injunction on appropriate conditions.

Court Disposition

Interlocutory injunction granted subject to conditions.

Orders

  • ['First and Third Respondents restrained from enforcing the charge for non-payment of $1,300,000 instalment pending trial or further order.' 'First and Third Respondents further restrained from acting under the charge for alleged default relating to grant of option to third party (Morley cafe) pending trial or...