Fletcher, Geoffrey Ross & Ors v Foodlink Ltd & Ors [1995] FCA 879

Fletcher, Geoffrey Ross & Ors v Foodlink Ltd & Ors [1995] FCA 879

Leave to appeal was refused because, although there were serious questions to be tried and the applicants appeared to have a strong claim based on s 52 of the Trade Practices Act 1974, there were no realistic prospects that an appeal would result in interlocutory relief. The injunction sought was not in aid of the final relief claimed, and the balance of convenience strongly favoured refusal given the loss-making business, admitted defaults, substantial debts, parlous financial position and the doubtful value of the undertaking as to damages.

Jurisdiction
Australia
Judgment Date
27 October 1995
Procedural Posture
Notice of Motion for Leave to Appeal From an Interlocutory Order Refusing Interlocutory Injunctive Relief / Application for Leave to Appeal
Outcome
Leave to appeal from the order of Drummond J of 18 October 1995 refused.
Legal Topics
['leave to Appeal' 'interlocutory Injunction' 'balance of Convenience' 'serious Question to Be Tried' 'misleading or Deceptive Conduct' 'federal Court Jurisdiction Under S 23' 'undertaking as to Damages' 'chattel Mortgage' 'operating Agreement']
['civil Procedure' 'appellate Procedure' 'injunctions' 'trade Practices'] ['leave to Appeal' 'interlocutory Injunction' 'balance of Convenience' 'serious Question to Be Tried' 'misleading or Deceptive Conduct' 'federal Court Jurisdiction Under S 23' 'undertaking as to Damages' 'chattel Mortgage' 'operating Agreement']

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Procedural Posture

Notice of Motion for Leave to Appeal From an Interlocutory Order Refusing Interlocutory Injunctive Relief / Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from the order of Drummond J made on 18 October 1995 refusing interlocutory relief.' 'Whether there were realistic prospects that the applicants would obtain interlocutory injunctive relief on appeal.' 'Whether the interlocutory injunction sought was in aid of final relief claimed in the principal proceedings.' 'Whether the balance of convenience favoured interlocutory relief restraining the first and second respondents from enforcing default rights under the chattel mortgage and operating agreement.']

Ratio Decidendi

Leave to appeal was refused because, although there were serious questions to be tried and the applicants appeared to have a strong claim based on s 52 of the Trade Practices Act 1974, there were no realistic prospects that an appeal would result in interlocutory relief. The injunction sought was not in aid of the final relief claimed, and the balance of convenience strongly favoured refusal given the loss-making business, admitted defaults, substantial debts, parlous financial position and the doubtful value of the undertaking as to damages.

Court Disposition

Leave to appeal from the order of Drummond J of 18 October 1995 refused.

Orders

  • ['Leave to appeal from the order of Drummond J of 18 October 1995 be refused.' 'The costs of the respondents on the motion be their costs in the principal proceedings.']