McGee v Australian Auctioneers Pty Ltd [2002] NSWSC 839

McGee v Australian Auctioneers Pty Ltd [2002] NSWSC 839

The plaintiff established an arguable case that she was entitled to terminate the bailment or withdraw the goods from sale and that the disputed clause did not clearly make the agency irrevocable or give the defendant a right to sell. Because the items were unique chattels, damages were not an adequate remedy. The balance of convenience favoured an injunction because the defendant's loss was principally monetary or loss of face, and any proper expenses or valid liquidated damages could be addressed later, particularly given the defendant's commercial decision to insist on the withdrawal fee and proceed with the auction.

Jurisdiction
Australia
Judgment Date
02 September 2002
Procedural Posture
Application for Interlocutory Injunction / Interlocutory Application
Outcome
Interlocutory injunction granted.
Legal Topics
['interlocutory Injunction' 'unique Chattels' 'auctioneers' 'bailment Termination' 'withdrawal Fee' 'lien' 'penalty' 'trade Practices Act']
['equity' 'professions and Trades' 'contract' 'bailment'] ['interlocutory Injunction' 'unique Chattels' 'auctioneers' 'bailment Termination' 'withdrawal Fee' 'lien' 'penalty' 'trade Practices Act']

Case Brief

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Procedural Posture

Application for Interlocutory Injunction / Interlocutory Application

Legal Issues

  1. 1 ["Whether the plaintiff had an arguable case that she was entitled to terminate the bailment or withdraw her goods from sale notwithstanding the defendant's conditions of business." 'Whether damages would be an adequate remedy for the proposed sale of unique chattels.' 'Whether the balance of convenience favoured granting an interlocutory injunction to prevent the auction sale.' "Whether the defendant's withdrawal fee clause entitled it to sell or retain the goods unless the fee and expenses were paid."]

Ratio Decidendi

The plaintiff established an arguable case that she was entitled to terminate the bailment or withdraw the goods from sale and that the disputed clause did not clearly make the agency irrevocable or give the defendant a right to sell. Because the items were unique chattels, damages were not an adequate remedy. The balance of convenience favoured an injunction because the defendant's loss was principally monetary or loss of face, and any proper expenses or valid liquidated damages could be addressed later, particularly given the defendant's commercial decision to insist on the withdrawal fee and proceed with the auction.

Court Disposition

Interlocutory injunction granted.

Orders

  • ['Order made in accordance with paragraph 1 of the four paragraph notice of motion of 30 August 2002, upon the plaintiff by her counsel giving the usual undertaking as to damages.' "Matter stood over to the Registrar's list at 9.30 am on 16 September 2002." 'Costs to be costs in the cause.' 'Exhibits may be returned.']