CB Direct v Challenger Mortgage Management [2009] NSWSC 334

CB Direct v Challenger Mortgage Management [2009] NSWSC 334

Mandatory interlocutory injunction was refused as the balance of convenience did not favour the plaintiff due to the absence of a worthwhile undertaking as to damages, and the risk of injustice was higher if the remedies sought were granted; the plaintiff's notice of motion was dismissed and costs awarded to the defendants.

Jurisdiction
Australia
Judgment Date
20 April 2009
Procedural Posture
Interlocutory Application / Ex Tempore Judgment on Plaintiff's Notice of Motion for Mandatory Interlocutory Injunction
Outcome
interlocutory injunction denied; notice of motion dismissed
Legal Topics
['interlocutory Injunction' 'equitable Remedies' 'trailing Commissions' 'contract Termination' 'balance of Convenience']
['equity'] ['interlocutory Injunction' 'equitable Remedies' 'trailing Commissions' 'contract Termination' 'balance of Convenience']

Case Brief

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Procedural Posture

Interlocutory Application / Ex Tempore Judgment on Plaintiff's Notice of Motion for Mandatory Interlocutory Injunction

Legal Issues

  1. 1 ['Was the defendant entitled to terminate the Loan Origination and Management Agreement pursuant to clause 20.1(c)?' 'Is the plaintiff entitled to mandatory interlocutory injunction requiring payment of trailing commissions?' 'Does the balance of convenience favour granting an interlocutory injunction?' 'Would damages be an adequate remedy for the plaintiff?']

Ratio Decidendi

Mandatory interlocutory injunction was refused as the balance of convenience did not favour the plaintiff due to the absence of a worthwhile undertaking as to damages, and the risk of injustice was higher if the remedies sought were granted; the plaintiff's notice of motion was dismissed and costs awarded to the defendants.

Court Disposition

interlocutory injunction denied; notice of motion dismissed

Orders

  • ["The plaintiff's notice of motion filed on 15 April 2009 is dismissed." 'Plaintiff to file and serve statement of claim by 23 April 2009.' 'Defendants to file and serve defence and any cross-claim by 29 April 2009.' 'Proceedings stood over to the Expedition List on 1 May 2009.' "Costs of and incidental to the...