Total Destination Marketing Pty Ltd v Ainline Pty Ltd [2011] NSWSC 1209

Total Destination Marketing Pty Ltd v Ainline Pty Ltd [2011] NSWSC 1209

The interlocutory injunction was granted because, in the absence of prejudice to the defendant and given statutory protections under s 133G, the status quo should be preserved and the defendant restrained from terminating the lease pending determination of key issues. The claim for construction of clause 21.5 is to be determined as a separate question, as its resolution may dispose of most issues in the proceedings and render broader discovery unnecessary.

Parties
Plaintiff: Total Destination Marketing Pty Ltd; Defendant: Ainline Pty Ltd
Jurisdiction
Australia
Judgment Date
28 September 2011
Procedural Posture
Motion for Interlocutory Injunction and Related Orders / Interlocutory (injunction and Directions)
Outcome
Interlocutory injunction granted; leave to amend summons granted; separate question to be determined first; discovery adjourned; costs reserved.
Legal Topics
Interlocutory Injunctions, Relief Against Forfeiture, Construction of Lease, Separate Question Determination, Possession of Leased Premises
Equity Property Law Civil Procedure Interlocutory Injunctions Relief Against Forfeiture Construction of Lease Separate Question Determination Possession of Leased Premises

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Parties

Total Destination Marketing Pty Ltd

Plaintiff

Ainline Pty Ltd

Defendant

Procedural Posture

Motion for Interlocutory Injunction and Related Orders / Interlocutory (injunction and Directions)

Legal Issues

  1. 1 Whether interlocutory injunction should restrain the defendant from terminating the lease pending determination of proceedings
  2. 2 Proper construction of clause 21.5 of the lease concerning payment and inspection obligations
  3. 3 Whether relief against forfeiture is available to the plaintiff under s 133F of Conveyancing Act

Ratio Decidendi

The interlocutory injunction was granted because, in the absence of prejudice to the defendant and given statutory protections under s 133G, the status quo should be preserved and the defendant restrained from terminating the lease pending determination of key issues. The claim for construction of clause 21.5 is to be determined as a separate question, as its resolution may dispose of most issues in the proceedings and render broader discovery unnecessary.

Court Disposition

Interlocutory injunction granted; leave to amend summons granted; separate question to be determined first; discovery adjourned; costs reserved.

Orders

  • Grant leave to the plaintiff to amend the summons by filing an amended summons in the form annexed to affidavit of Julia Astrid Bridgewater sworn on 22 September 2011.
  • Upon the plaintiff by its counsel giving the usual undertaking as to damages, restrain defendant from terminating or purporting to terminate lease registered number XXXXXXXXX pending hearing.