FRENCH V. CHAPPLE & ORS. [2000] NSWSC 1240

FRENCH V. CHAPPLE & ORS. [2000] NSWSC 1240

The failure by the plaintiff to disclose financial details regarding ability to satisfy an undertaking as to damages did not in the circumstances amount to lack of candour justifying vacation of interlocutory injunctions; balance of convenience may warrant refining, rather than vacating, existing orders to allow controlled commercial activity by defendants while protecting plaintiff's ultimate rights.

Parties
Plaintiff: Andrew French; 1st Defendant: Brett Anthony Chapple; 2nd Defendant: Evalena Pty. Ltd.; 3rd Defendant: Yuki Ishida; 4th Defendant: ASIC; 5th Defendant: Steve Nicols; 6th Defendant: Roger James Poignand; 7th Defendant: EHA Media Pty. Ltd.; 8th Defendant: Escalator Handrail Advertising International Pty. Ltd.; 9th Defendant: Escalator Handrail Advertising Australia & New Zealand Pty. Ltd.
Jurisdiction
Australia
Judgment Date
22 December 2000
Procedural Posture
Interlocutory Application / Application to Vary/vacate Interlocutory Orders
Outcome
Orders 3 and 4 not vacated; orders varied and further directions given.
Legal Topics
Injunctions, Ex Parte Applications, Duty of Candour, Undertaking as to Damages, Security for Undertaking
Equity Practice and Procedure Injunctions Ex Parte Applications Duty of Candour Undertaking as to Damages Security for Undertaking

Case Brief

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Parties

Andrew French

Plaintiff

Brett Anthony Chapple

1st Defendant

Evalena Pty. Ltd.

2nd Defendant

Yuki Ishida

3rd Defendant

ASIC

4th Defendant

Steve Nicols

5th Defendant

Roger James Poignand

6th Defendant

EHA Media Pty. Ltd.

7th Defendant

Escalator Handrail Advertising International Pty. Ltd.

8th Defendant

Escalator Handrail Advertising Australia & New Zealand Pty. Ltd.

9th Defendant

Procedural Posture

Interlocutory Application / Application to Vary/vacate Interlocutory Orders

Legal Issues

  1. 1 Whether the plaintiff failed in the duty of candour by not disclosing financial position relevant to an undertaking as to damages on an ex parte interlocutory application
  2. 2 Whether the plaintiff's ability to satisfy the undertaking as to damages affects the balance of convenience and security should be ordered
  3. 3 Whether non-disclosure of a document constituted sufficient lack of candour to warrant discharge of injunctions

Ratio Decidendi

The failure by the plaintiff to disclose financial details regarding ability to satisfy an undertaking as to damages did not in the circumstances amount to lack of candour justifying vacation of interlocutory injunctions; balance of convenience may warrant refining, rather than vacating, existing orders to allow controlled commercial activity by defendants while protecting plaintiff's ultimate rights.

Court Disposition

Orders 3 and 4 not vacated; orders varied and further directions given.

Orders

  • Order 3(c) varied to clarify it restrains only dealing with title to the patents.
  • First and seventh defendants permitted, after notice to plaintiff, to enter into licences to independent third parties on arm's length basis.