Bartlett Investments Pty Ltd v Commonwealth Bank of Australia & Anor [1987] FCA 338

Bartlett Investments Pty Ltd v Commonwealth Bank of Australia & Anor [1987] FCA 338

No interlocutory injunction will be granted as the material disclosed a serious question to be tried, but the balance of convenience does not favour the grant of relief—the forced sale, whether by receiver or bank, exposes applicants equally and an injunction would be futile. The statement of claim will not be struck out as it is not a clear case justifying summary dismissal. Security for costs is refused due to undertaking by Sydbart Pty. Ltd. for costs. The first applicant is ordered to deliver up books and records to the second respondent under a usual undertaking to damages.

Parties
First Applicant: Bartlett Investments Pty. Ltd.; Second Applicant: Sydbart Pty. Ltd.; Third Applicant: North Queensland Development (No. 2) Pty. Ltd.; First Respondent: Commonwealth Bank of Australia; Second Respondent: Wilson Joseph Wilde
Jurisdiction
Australia
Judgment Date
24 June 1987
Procedural Posture
Interlocutory Application / Ruling on Interlocutory Relief and Associated Motions
Outcome
Application for interlocutory relief dismissed. Statement of claim not struck out. Security for costs not ordered. First applicant ordered to deliver books and records to second respondent.
Legal Topics
Appointment of Receiver, Mortgage Enforcement, Injunctive Relief, Security for Costs
Corporate Law Banking Law Equity Appointment of Receiver Mortgage Enforcement Injunctive Relief Security for Costs

Case Brief

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Parties

Bartlett Investments Pty. Ltd.

First Applicant

Sydbart Pty. Ltd.

Second Applicant

North Queensland Development (No. 2) Pty. Ltd.

Third Applicant

Commonwealth Bank of Australia

First Respondent

Wilson Joseph Wilde

Second Respondent

Procedural Posture

Interlocutory Application / Ruling on Interlocutory Relief and Associated Motions

Legal Issues

  1. 1 Whether there is a serious question to be tried regarding the Commonwealth Bank's entitlement to appoint a receiver to Bartlett Investments Pty. Ltd.'s assets and undertakings.
  2. 2 Whether interlocutory relief restraining the appointment or actions of the receiver should be granted.
  3. 3 Whether the statement of claim should be struck out for disclosing no reasonable cause of action.

Ratio Decidendi

No interlocutory injunction will be granted as the material disclosed a serious question to be tried, but the balance of convenience does not favour the grant of relief—the forced sale, whether by receiver or bank, exposes applicants equally and an injunction would be futile. The statement of claim will not be struck out as it is not a clear case justifying summary dismissal. Security for costs is refused due to undertaking by Sydbart Pty. Ltd. for costs. The first applicant is ordered to deliver up books and records to the second respondent under a usual undertaking to damages.

Court Disposition

Application for interlocutory relief dismissed. Statement of claim not struck out. Security for costs not ordered. First applicant ordered to deliver books and records to second respondent.

Orders

  • Application for interlocutory injunction refused.
  • Application to strike out statement of claim refused.