Everest Capital Ltd & Anor v HSBC Bank plc [2009] NSWSC 185

Everest Capital Ltd & Anor v HSBC Bank plc [2009] NSWSC 185

The interlocutory injunction was refused because the Plaintiffs would not give the usual undertaking as to damages in the usual terms, the Court had not been given evidence identifying the nature, value or location of the trust assets from which the Plaintiffs sought to limit their exposure, and it was inappropriate to cast the risk of loss from the injunction on the Defendant. The Plaintiffs' arguments on invalidity of the termination notices were also described as weak.

Jurisdiction
Australia
Judgment Date
19 March 2009
Procedural Posture
Interlocutory Injunction / Notice of Motion
Outcome
Injunction refused; injunction previously in force dissolved forthwith; Plaintiffs ordered to pay the Defendant's costs of the Notice of Motion.
Legal Topics
['interlocutory Injunction' 'usual Undertaking as to Damages' 'trustee Liability' 'balance of Convenience' 'termination Notices']
['equity' 'civil Procedure' 'trusts'] ['interlocutory Injunction' 'usual Undertaking as to Damages' 'trustee Liability' 'balance of Convenience' 'termination Notices']

Case Brief

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Procedural Posture

Interlocutory Injunction / Notice of Motion

Legal Issues

  1. 1 ['Whether an interlocutory injunction should be granted restraining the Defendant from acting upon termination notices.' 'Whether the Plaintiffs had shown a serious question to be tried and that the balance of convenience favoured an injunction.' 'Whether plaintiff trustees unwilling to accept liability under the usual undertaking as to damages beyond their ability to recoup from trust funds should receive an interlocutory injunction where the nature and value of the trust funds were unclear.']

Ratio Decidendi

The interlocutory injunction was refused because the Plaintiffs would not give the usual undertaking as to damages in the usual terms, the Court had not been given evidence identifying the nature, value or location of the trust assets from which the Plaintiffs sought to limit their exposure, and it was inappropriate to cast the risk of loss from the injunction on the Defendant. The Plaintiffs' arguments on invalidity of the termination notices were also described as weak.

Court Disposition

Injunction refused; injunction previously in force dissolved forthwith; Plaintiffs ordered to pay the Defendant's costs of the Notice of Motion.

Orders

  • ['The injunction presently in force is dissolved forthwith.' "The Plaintiffs pay the Defendant's costs of the Notice of Motion."]