Marlu Transport Solutions Pty Ltd v Bishdun Pty Ltd [2025] FCA 118

Marlu Transport Solutions Pty Ltd v Bishdun Pty Ltd [2025] FCA 118

There is a serious question to be tried on the applicant's claims of misleading or deceptive and unconscionable conduct under the ACL concerning the asset sale; the balance of convenience favours granting interlocutory injunctions to restrain the first and fifth respondents from exercising certain contractual rights that would prevent the applicant from prosecuting its claims, pending final determination. The relief is tailored to prevent frustration of these proceedings, but does not prevent the respondents from taking other steps available to them as creditors.

Parties
Applicant: Marlu Transport Solutions Pty Ltd; First Respondent: Bishdun Pty Ltd; Second Respondent: Malcolm Donald Bishop; Third Respondent: Jocelyn Dunning; Fourth Respondent: Lloyd Daniels; Fifth Respondent: Bishop Contracting Pty Ltd as trustee for the MD Bishop Trust
Jurisdiction
Australia
Judgment Date
24 February 2025
Procedural Posture
Originating Application (commercial and Corporations – Consumer Protection) / Interlocutory (application for Interlocutory Injunction)
Outcome
Interlocutory injunctions granted (in limited form); costs of application to be costs in the cause.
Legal Topics
Misleading or Deceptive Conduct, Unconscionable Conduct, Injunctive Relief, Contract Interpretation, Remedies Under Australian Consumer Law
Commercial Law Corporations Law Consumer Law Misleading or Deceptive Conduct Unconscionable Conduct Injunctive Relief Contract Interpretation Remedies Under Australian Consumer Law

Case Brief

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Parties

Marlu Transport Solutions Pty Ltd

Applicant

Bishdun Pty Ltd

First Respondent

Malcolm Donald Bishop

Second Respondent

Jocelyn Dunning

Third Respondent

Lloyd Daniels

Fourth Respondent

Bishop Contracting Pty Ltd as trustee for the MD Bishop Trust

Fifth Respondent

Procedural Posture

Originating Application (commercial and Corporations – Consumer Protection) / Interlocutory (application for Interlocutory Injunction)

Legal Issues

  1. 1 Whether the respondents engaged in misleading or deceptive conduct within the meaning of s 18 of the Australian Consumer Law (ACL)
  2. 2 Whether the respondents engaged in unconscionable conduct contrary to s 21 of the ACL
  3. 3 Whether interlocutory injunctive relief should be granted to restrain exercise of contractual rights pending final determination

Ratio Decidendi

There is a serious question to be tried on the applicant's claims of misleading or deceptive and unconscionable conduct under the ACL concerning the asset sale; the balance of convenience favours granting interlocutory injunctions to restrain the first and fifth respondents from exercising certain contractual rights that would prevent the applicant from prosecuting its claims, pending final determination. The relief is tailored to prevent frustration of these proceedings, but does not prevent the respondents from taking other steps available to them as creditors.

Court Disposition

Interlocutory injunctions granted (in limited form); costs of application to be costs in the cause.

Orders

  • First and fifth respondents are until further order restrained from exercising specified contractual rights under the Asset Sale Agreement, the Payment and Security Deed, the General Security Deed, and the Specific Security Deed; including but not limited to the transfer of Oz Base's shares in the applicant, selling...
  • Order made on 7 February 2025 ceases to have effect upon making of these orders.