Celestial Finance Australia Pty Limited v BHAUS Pty Limited & Anor [2015] NSWSC 1509

Celestial Finance Australia Pty Limited v BHAUS Pty Limited & Anor [2015] NSWSC 1509

There is a serious question to be tried regarding Celestial's equitable interest in BHAUS' assets and undertaking, and potential remedial trusts arising from the conduct of Mr Cunningham and the defendants. The arguments that the agreements were unenforceable due to stamping, that damages were adequate, and that a landlord could terminate the lease were not accepted. Injunctive relief (in the usual negative form) is appropriate to protect Celestial's interests until final hearing.

Jurisdiction
Australia
Judgment Date
07 October 2015
Procedural Posture
Injunction / Interlocutory Application
Outcome
Injunction granted
Legal Topics
['injunctions' 'security Interests' 'trusts and Equitable Remedies' 'knowing Receipt and Assistance']
['equity'] ['injunctions' 'security Interests' 'trusts and Equitable Remedies' 'knowing Receipt and Assistance']

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Procedural Posture

Injunction / Interlocutory Application

Legal Issues

  1. 1 ['Whether the plaintiff is entitled to an interlocutory injunction restraining the defendants from dealing with lease and assets' 'Whether there is a serious question to be tried regarding the existence of a security interest and breach of rights under the Loan Agreement and General Security Agreement' 'Effect of the Loan Agreement and General Security Agreement not being stamped under the Duties Act 1997 (NSW)' 'Whether damages are an adequate remedy' 'Balance of convenience in granting the interlocutory relief']

Ratio Decidendi

There is a serious question to be tried regarding Celestial's equitable interest in BHAUS' assets and undertaking, and potential remedial trusts arising from the conduct of Mr Cunningham and the defendants. The arguments that the agreements were unenforceable due to stamping, that damages were adequate, and that a landlord could terminate the lease were not accepted. Injunctive relief (in the usual negative form) is appropriate to protect Celestial's interests until final hearing.

Court Disposition

Injunction granted

Orders

  • ['Interlocutory injunction granted restraining the second defendant (34 Bondi) from dealing with the lease or assets and undertaking of the business, except in the ordinary course of business' 'Proposed mandatory injunction (requiring 34 Bondi to continue operating the business) refused']