Ghosh v Scott Newton trading as Shaw Gidley (No 7) [2023] NSWSC 1558

Ghosh v Scott Newton trading as Shaw Gidley (No 7) [2023] NSWSC 1558

The injunction was refused because the proposed pleading did not disclose any serious question to be tried that would justify restraining Mr Newton from enforcing the FCFCA Possession Order. The allegations against Mr Newton were prolix, general, inadequately particularised, and did not disclose reasonably maintainable causes of action; the apparent primary claim in damages did not create an equity requiring restraint of enforcement; the application amounted to a direct attack on the FCFCA orders rather than a matter for this Court; appeal or stay applications in the FCFCA were the appropriate course; and similar injunctive relief had already been refused without any relevant change in...

Jurisdiction
Australia
Judgment Date
07 December 2023
Procedural Posture
Procedural Ruling; Application for Interlocutory Injunctive Relief / Hearing of Prayer 4 of Amended Notice of Motion Dated 27 November 2023
Outcome
Injunction refused with costs.
Legal Topics
['application to Restrain Enforcement of Possession Order' 'collateral or Direct Attack on Orders of Another Court' 'adequacy of Proposed Pleading' 'fraud Allegations and Particularisation' 'serious Question to Be Tried' 'discretionary Refusal of Injunction']
['equity' 'injunctions' 'bankruptcy' 'family Law Procedure' 'civil Procedure'] ['application to Restrain Enforcement of Possession Order' 'collateral or Direct Attack on Orders of Another Court' 'adequacy of Proposed Pleading' 'fraud Allegations and Particularisation' 'serious Question to Be Tried' 'discretionary Refusal of Injunction']

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Procedural Posture

Procedural Ruling; Application for Interlocutory Injunctive Relief / Hearing of Prayer 4 of Amended Notice of Motion Dated 27 November 2023

Legal Issues

  1. 1 ['Whether the proposed amended statement of claim, if allowed to be filed, disclosed a sufficient basis to restrain the first defendant from enforcing the Federal Circuit and Family Court of Australia possession order for the Charlestown property.' 'Whether Dr Ghosh demonstrated a serious question to be tried on a cause of action against Mr Newton that would justify preventing enforcement of the Possession Order.' 'Whether the Supreme Court should exercise discretion to grant an injunction that would interfere with orders of the Federal Circuit and Family Court of Australia.' 'Whether earlier refusals of similar injunctive relief could be revisited without a relevant change in circumstances.']

Ratio Decidendi

The injunction was refused because the proposed pleading did not disclose any serious question to be tried that would justify restraining Mr Newton from enforcing the FCFCA Possession Order. The allegations against Mr Newton were prolix, general, inadequately particularised, and did not disclose reasonably maintainable causes of action; the apparent primary claim in damages did not create an equity requiring restraint of enforcement; the application amounted to a direct attack on the FCFCA orders rather than a matter for this Court; appeal or stay applications in the FCFCA were the appropriate course; and similar injunctive relief had already been refused without any relevant change in...

Court Disposition

Injunction refused with costs.

Orders

  • ['Paragraph 4 of the amended notice of motion is dismissed with costs.']