Mindshare Communications Ltd v Orleans Investments Pty Ltd [1999] FCA 1865

Mindshare Communications Ltd v Orleans Investments Pty Ltd [1999] FCA 1865

The applicant established an arguable issue to be tried because the unchallenged evidence showed that the respondents, through Mr Eckett at least, had made the relevant representations and that they were false. The evidence also showed potential harm to the applicant's business, while the respondents did not demonstrate why they could not carry on business without making representations which appeared false. The balance of convenience therefore favoured interlocutory relief, not confined to existing clients, subject to the usual undertaking as to damages and security by bank guarantee or bond up to $A80,000.

Jurisdiction
Australia
Judgment Date
20 December 1999
Procedural Posture
Application for Injunctive Relief Restraining Publication of Representations in Trade or Commerce or by Means Involving Australian Telephonic Services / Interlocutory Injunction Application and Directions
Outcome
Interlocutory injunction granted pending final determination, with undertakings and security; costs reserved and directions made.
Legal Topics
['misleading and Deceptive Representations' 'publication in Trade or Commerce' 'australian Telephonic Services' 'undertaking as to Damages' 'security for Undertaking as to Damages' 'balance of Convenience']
['trade Practices' 'interlocutory Injunctions' 'federal Civil Procedure'] ['misleading and Deceptive Representations' 'publication in Trade or Commerce' 'australian Telephonic Services' 'undertaking as to Damages' 'security for Undertaking as to Damages' 'balance of Convenience']

Case Brief

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Procedural Posture

Application for Injunctive Relief Restraining Publication of Representations in Trade or Commerce or by Means Involving Australian Telephonic Services / Interlocutory Injunction Application and Directions

Legal Issues

  1. 1 ['Whether the applicant had demonstrated an arguable issue to be tried in relation to the alleged representations.' 'Whether the balance of convenience favoured interlocutory injunctive relief pending final determination.' 'Whether interlocutory relief should be limited to representations made to existing clients of the applicant.' "What security should be required for the applicant's usual undertaking as to damages."]

Ratio Decidendi

The applicant established an arguable issue to be tried because the unchallenged evidence showed that the respondents, through Mr Eckett at least, had made the relevant representations and that they were false. The evidence also showed potential harm to the applicant's business, while the respondents did not demonstrate why they could not carry on business without making representations which appeared false. The balance of convenience therefore favoured interlocutory relief, not confined to existing clients, subject to the usual undertaking as to damages and security by bank guarantee or bond up to $A80,000.

Court Disposition

Interlocutory injunction granted pending final determination, with undertakings and security; costs reserved and directions made.

Orders

  • ['Upon the applicant giving the usual undertaking as to damages and undertaking to lodge by 31 December 1999 a guarantee or bond by an Australian trading bank for a total sum not exceeding $A80,000, the respondents and each of them, by themselves, their servants and agents, be restrained pending final determination...