Create Business Australia Pty Ltd v AURFS Pty Ltd [2017] NSWSC 680

Create Business Australia Pty Ltd v AURFS Pty Ltd [2017] NSWSC 680

Although Create Business established a serious question to be tried, the defendants raised substantial defences, including construction of cl 2.4(d), estoppel and restraint of trade issues, and the balance of convenience and delay did not justify the broad interlocutory injunctions sought. The undertaking should therefore be released, subject to limited interlocutory restraints because the Professional Package more squarely arguably fell within cl 2.4(d) and new subscribers could be affected if final relief were later granted, and because Mrs Mannix's involvement in any AAVIP training would present a strong case of breach without affecting AURFS's business.

Jurisdiction
Australia
Judgment Date
31 May 2017
Procedural Posture
Equity Commercial List; Application for Interlocutory Injunction / Interlocutory Notice of Motion Following Undertaking Given on 28 April 2017
Outcome
Defendants to be released from the undertaking given on 28 April 2017; broad interlocutory injunctions refused, with limited restraints proposed after the plaintiff gives the usual undertaking as to damages and subject to hearing the parties on the precise form of orders and costs.
Legal Topics
['interlocutory Injunction' 'undertakings to the Court' 'serious Question to Be Tried' 'balance of Convenience' 'delay' 'restraint of Trade' 'estoppel' 'misleading or Deceptive Conduct' 'unconscionable Conduct']
['injunctions' 'practice and Procedure' 'restraint of Trade' 'equity'] ['interlocutory Injunction' 'undertakings to the Court' 'serious Question to Be Tried' 'balance of Convenience' 'delay' 'restraint of Trade' 'estoppel' 'misleading or Deceptive Conduct' 'unconscionable Conduct']

Case Brief

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Procedural Posture

Equity Commercial List; Application for Interlocutory Injunction / Interlocutory Notice of Motion Following Undertaking Given on 28 April 2017

Legal Issues

  1. 1 ['Whether the defendants should be released from the undertaking given on 28 April 2017.' 'Whether the onus was on the defendants to show a material change in circumstances or on the plaintiff to establish entitlement to interlocutory injunctions.' 'Whether Create Business had established a prima facie case or serious question to be tried.' 'Whether the balance of convenience favoured the interlocutory injunctions sought.' 'Whether delay by Create Business was a discretionary reason to refuse interlocutory relief.' 'Whether the defendants should be restrained from providing the Professional Package to new subscribers.' 'Whether Mrs Mannix should be restrained from providing training or instruction on money recovery methods, processes or techniques to members of Australian Association for Virtual Industry Professionals Limited.']

Ratio Decidendi

Although Create Business established a serious question to be tried, the defendants raised substantial defences, including construction of cl 2.4(d), estoppel and restraint of trade issues, and the balance of convenience and delay did not justify the broad interlocutory injunctions sought. The undertaking should therefore be released, subject to limited interlocutory restraints because the Professional Package more squarely arguably fell within cl 2.4(d) and new subscribers could be affected if final relief were later granted, and because Mrs Mannix's involvement in any AAVIP training would present a strong case of breach without affecting AURFS's business.

Court Disposition

Defendants to be released from the undertaking given on 28 April 2017; broad interlocutory injunctions refused, with limited restraints proposed after the plaintiff gives the usual undertaking as to damages and subject to hearing the parties on the precise form of orders and costs.

Orders

  • ['The defendants be released from the undertaking they gave on 28 April 2017.' 'Upon the plaintiff giving the usual undertaking as to damages, the defendants be restrained from providing its "Professional Package" or any substantially similar package to any person who was not a subscriber to that package before 26...