Lucas Stuart Pty Ltd v Hemmes Hermitage Pty Ltd [2009] NSWSC 439

Lucas Stuart Pty Ltd v Hemmes Hermitage Pty Ltd [2009] NSWSC 439

Because there was a sufficiently seriously arguable question that the defendant was not entitled to exercise its rights under clause 16.3 to convert the performance bonds into cash, and because deferring exercise of those rights for a few days was unlikely to prejudice the defendant while calling up the guarantees would likely prejudice the plaintiff, an interim injunction should be granted.

Jurisdiction
Australia
Judgment Date
29 April 2009
Procedural Posture
Application Under Ucpr, Rule 25.2 for an Injunction Before Commencement of Proceedings / Ex Tempore Interlocutory Application in the Equity Division Duty Judge List
Outcome
Interim injunction granted restraining the defendant until Friday 1 May 2009 from exercising rights under clause 16.3 of the building contract.
Legal Topics
['interim Injunction' 'performance Bonds' 'building Contract' 'seriously Arguable Question' 'balance of Convenience' 'contractual Right to Convert Performance Bonds' 'liquidated Damages']
['equity' 'injunctions' 'contract Law' 'construction Law'] ['interim Injunction' 'performance Bonds' 'building Contract' 'seriously Arguable Question' 'balance of Convenience' 'contractual Right to Convert Performance Bonds' 'liquidated Damages']

Case Brief

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Procedural Posture

Application Under Ucpr, Rule 25.2 for an Injunction Before Commencement of Proceedings / Ex Tempore Interlocutory Application in the Equity Division Duty Judge List

Legal Issues

  1. 1 ['Whether there was a sufficiently seriously arguable question that the defendant was not entitled to exercise rights under clause 16.3 of the building contract to convert the performance bonds into cash.' 'Whether the balance of convenience justified restraining the defendant from calling on the performance bonds for a short interim period.']

Ratio Decidendi

Because there was a sufficiently seriously arguable question that the defendant was not entitled to exercise its rights under clause 16.3 to convert the performance bonds into cash, and because deferring exercise of those rights for a few days was unlikely to prejudice the defendant while calling up the guarantees would likely prejudice the plaintiff, an interim injunction should be granted.

Court Disposition

Interim injunction granted restraining the defendant until Friday 1 May 2009 from exercising rights under clause 16.3 of the building contract.

Orders

  • ['Leave granted to Lucas Stuart Pty Limited to file a Summons in the form initialled by the Court, dated 29 April 2009 and placed with the papers.' 'The Summons was directed to be returnable on Friday 1 May 2009 at 10am before the Construction & Technology List Judge.' 'Further service of the Summons was dispensed...