John Tumminello v TAB Limited [2011] NSWSC 1639

John Tumminello v TAB Limited [2011] NSWSC 1639

Although there was a serious question to be tried about the validity of the 9 December 2011 notice and the alleged breaches underlying it, the plaintiff did not establish a serious question to be tried that the 20 December 2011 notices or clause 2.3 termination powers were invalid or unenforceable. Because TAB Limited could terminate the North Strathfield agreement on 30 days notice and the Stanhope Gardens agreement on 60 days notice, reinstatement would not be maintainable and the balance of convenience strongly favoured refusing the mandatory interlocutory injunction.

Jurisdiction
Australia
Judgment Date
22 December 2011
Procedural Posture
Interlocutory Application / Application for Mandatory Interlocutory Injunction Restoring the Plaintiff to TAB Agency Premises Pending Final Hearing
Outcome
Mandatory interlocutory injunction declined; plaintiff's motion for interlocutory relief dismissed.
Legal Topics
['interlocutory Injunctions' 'mandatory Injunctions' 'termination of Agency Agreement' 'serious Question to Be Tried' 'balance of Convenience' 'implied Duty of Good Faith' 'unconscionability']
['equity' 'contract Law'] ['interlocutory Injunctions' 'mandatory Injunctions' 'termination of Agency Agreement' 'serious Question to Be Tried' 'balance of Convenience' 'implied Duty of Good Faith' 'unconscionability']

Case Brief

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Procedural Posture

Interlocutory Application / Application for Mandatory Interlocutory Injunction Restoring the Plaintiff to TAB Agency Premises Pending Final Hearing

Legal Issues

  1. 1 ["Whether there was a serious question to be tried concerning the validity of TAB Limited's 9 December 2011 notice of termination and alleged breaches of the Stanhope Gardens and North Strathfield agency agreements." 'Whether there was a serious question to be tried concerning the validity or enforceability of the 20 December 2011 notices given under clause 2.3 of the agency agreements.' 'Whether the balance of convenience favoured granting a mandatory interlocutory injunction restoring the plaintiff to occupation and operation of the agencies.']

Ratio Decidendi

Although there was a serious question to be tried about the validity of the 9 December 2011 notice and the alleged breaches underlying it, the plaintiff did not establish a serious question to be tried that the 20 December 2011 notices or clause 2.3 termination powers were invalid or unenforceable. Because TAB Limited could terminate the North Strathfield agreement on 30 days notice and the Stanhope Gardens agreement on 60 days notice, reinstatement would not be maintainable and the balance of convenience strongly favoured refusing the mandatory interlocutory injunction.

Court Disposition

Mandatory interlocutory injunction declined; plaintiff's motion for interlocutory relief dismissed.

Orders

  • ["Two thirds of the defendant's costs of this motion for interlocutory relief will be the defendant's costs in the cause, otherwise there will be no other costs." "Dismiss the plaintiff's application for interlocutory relief." "Adjourn the Summons for further directions to the Registrar's List at 9am on Friday, 3...