TCS ACES Pty Limited v Mikohn Gaming Australasia Pty Limited [2007] NSWSC 988

TCS ACES Pty Limited v Mikohn Gaming Australasia Pty Limited [2007] NSWSC 988

ACES had at least a seriously arguable case that the Distribution and Service Agreement contained an implied negative obligation preventing Mikohn from assigning the benefit of the casino licence agreements in a way that would deprive ACES of the intended remuneration from licence fee revenue. It was also seriously...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
31 August 2007
Procedural Posture
Application for Interlocutory Injunction / Interlocutory Application; Ex Tempore Judgment
Outcome
Interlocutory injunction granted restraining the defendant from alienating the benefit of the licence agreements.
Legal Topics
['implied Terms' 'duty to Facilitate Performance' 'implied Negative Obligation' 'distributorship Agreement' 'assignment of Licence Agreements' 'interlocutory Injunction' 'adequacy of Damages' 'balance of Convenience']
['contracts' 'injunctions'] ['implied Terms' 'duty to Facilitate Performance' 'implied Negative Obligation' 'distributorship Agreement' 'assignment of Licence Agreements' 'interlocutory Injunction' 'adequacy of Damages' 'balance of Convenience']

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Procedural Posture

Application for Interlocutory Injunction / Interlocutory Application; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the Distribution and Service Agreement contained an implied term preventing Mikohn from alienating the benefit of casino licence agreements so as to deprive ACES of remuneration under the agreement.' 'Whether ACES had a seriously arguable case for a final injunction restraining the proposed alienation of the licence agreements.' 'Whether damages would be a sufficient remedy or whether final injunctive relief was seriously arguable.' 'Whether delay by ACES should preclude interlocutory relief.' 'Whether the balance of convenience favoured granting interlocutory injunctive relief.']

Ratio Decidendi

ACES had at least a seriously arguable case that the Distribution and Service Agreement contained an implied negative obligation preventing Mikohn from assigning the benefit of the casino licence agreements in a way that would deprive ACES of the intended remuneration from licence fee revenue. It was also seriously arguable that final injunctive relief, rather than damages, was appropriate because the obligation was negative, damages involved assessment and enforcement disadvantages, and delay did not justify refusal. With ACES giving the usual undertaking as to damages, the balance of convenience slightly favoured preserving the position by interlocutory injunction.

Court Disposition

Interlocutory injunction granted restraining the defendant from alienating the benefit of the licence agreements.

Orders

  • ['Upon the plaintiff by its counsel giving the usual undertaking as to damages, order until further order in terms of paragraph 1 of the Summons filed 29 August 2007.' 'Costs of the interlocutory application be costs in the proceedings.']