Cool-Off Pty Ltd (ABN 79 068 308 225) v Thomas Foods International Pty Limited ABN 52 008 178 121 [2023] NSWSC 1183

Cool-Off Pty Ltd (ABN 79 068 308 225) v Thomas Foods International Pty Limited ABN 52 008 178 121 [2023] NSWSC 1183

The injunction was dissolved because Cool-Off's ex parte application materially misled the Court by underrepresenting Thomas Foods employees' involvement in performance of the supply process, overstating immediate prejudice and lack of alternative supply, and failing to disclose the Bone Material dispute and Thomas Foods' asserted prejudice. These matters were not deliberately concealed, but had they been disclosed the injunction would almost certainly not have been granted on the same terms. Although Cool-Off had a serious question to be tried concerning the contract and termination, the non-disclosure and misrepresentation justified discharge of the injunction.

Jurisdiction
Australia
Judgment Date
04 October 2023
Procedural Posture
Application to Dissolve or Vary Ex Parte Interlocutory Injunction in Equity Duty List / Interlocutory
Outcome
Injunction dissolved, with dissolution stayed for 14 days; costs reserved and liberty to apply granted.
Legal Topics
['interlocutory Injunctions' 'ex Parte Applications' 'material Non Disclosure and Misrepresentation' 'serious Question to Be Tried' 'balance of Convenience' 'contract Termination' 'supply Agreement for Ovine Offal and Bone Material']
['equity' 'contract Law' 'civil Procedure'] ['interlocutory Injunctions' 'ex Parte Applications' 'material Non Disclosure and Misrepresentation' 'serious Question to Be Tried' 'balance of Convenience' 'contract Termination' 'supply Agreement for Ovine Offal and Bone Material']

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Procedural Posture

Application to Dissolve or Vary Ex Parte Interlocutory Injunction in Equity Duty List / Interlocutory

Legal Issues

  1. 1 ['Whether the ex parte injunction restraining Thomas Foods from ceasing supply should be dissolved because it was obtained by material non-disclosure or misrepresentation.' 'Whether Cool-Off had shown a serious question to be tried concerning the existence, construction and termination of the supply agreement.' 'Whether the balance of convenience justified continuation of the injunction, and on what terms.' "Whether Cool-Off failed to disclose the extent of Thomas Foods employees' involvement in the supply process, the existence of two versions of the supply agreement, alternative sources of supply, and prejudice to Thomas Foods from Cool-Off not collecting Bone Material."]

Ratio Decidendi

The injunction was dissolved because Cool-Off's ex parte application materially misled the Court by underrepresenting Thomas Foods employees' involvement in performance of the supply process, overstating immediate prejudice and lack of alternative supply, and failing to disclose the Bone Material dispute and Thomas Foods' asserted prejudice. These matters were not deliberately concealed, but had they been disclosed the injunction would almost certainly not have been granted on the same terms. Although Cool-Off had a serious question to be tried concerning the contract and termination, the non-disclosure and misrepresentation justified discharge of the injunction.

Court Disposition

Injunction dissolved, with dissolution stayed for 14 days; costs reserved and liberty to apply granted.

Orders

  • ['The injunction granted by Lindsay J on 4 August 2023 is dissolved;' 'Stay Order (1) for 14 days, that is up to and including 18 October 2023.' 'Costs reserved;' 'Liberty to apply']