Kavia Holdings Pty. Limited & Anor. v. Werncog Pty. Limited [1999] NSWSC 932

Kavia Holdings Pty. Limited & Anor. v. Werncog Pty. Limited [1999] NSWSC 932

Because the defendant had ample opportunity to explain how the earlier Court was misled about comparable leases for Cohibar and deliberately chose not to do so, the Court inferred that the defendant deliberately misled the Court. Although the misleading directly concerned Cohibar, knowledge of that deliberate attempt could have affected Young J's overall approach to the interlocutory conditions, including Jordans. Giving weight to the original decision but preventing the defendant from obtaining an advantage from its misconduct, fairness required less onerous conditions: Cohibar was to be charged at the plaintiffs' lower figure for May to August 1999, and the Jordans back rent requirement...

Jurisdiction
Australia
Judgment Date
10 September 1999
Procedural Posture
Application to Vary Conditions of an Interlocutory Injunction / Interlocutory Application on Notice of Motion After Earlier Interlocutory Injunction Granted by Young J
Outcome
Plaintiffs' application substantially successful; conditions of the interlocutory injunction were to be varied and the plaintiffs were awarded costs of the application in the proceedings.
Legal Topics
['interlocutory Injunction Conditions' 'duty Not to Mislead the Court' 'variation of Interlocutory Orders' 'occupation Fees' 'costs']
['practice and Procedure' 'equity' 'injunctions' 'leases'] ['interlocutory Injunction Conditions' 'duty Not to Mislead the Court' 'variation of Interlocutory Orders' 'occupation Fees' 'costs']

Case Brief

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Procedural Posture

Application to Vary Conditions of an Interlocutory Injunction / Interlocutory Application on Notice of Motion After Earlier Interlocutory Injunction Granted by Young J

Legal Issues

  1. 1 ['Whether the defendant deliberately misled the Court at the earlier hearing before Young J concerning an appropriate occupation fee for Cohibar.' 'Whether the conditions of the interlocutory injunction should be varied in relation to Cohibar for the period from 1 May 1999 to 31 August 1999.' "Whether the defendant's misleading of the Court concerning Cohibar justified reconsideration and variation of the conditions imposed in relation to Jordans." "What costs order should be made on the plaintiffs' application."]

Ratio Decidendi

Because the defendant had ample opportunity to explain how the earlier Court was misled about comparable leases for Cohibar and deliberately chose not to do so, the Court inferred that the defendant deliberately misled the Court. Although the misleading directly concerned Cohibar, knowledge of that deliberate attempt could have affected Young J's overall approach to the interlocutory conditions, including Jordans. Giving weight to the original decision but preventing the defendant from obtaining an advantage from its misconduct, fairness required less onerous conditions: Cohibar was to be charged at the plaintiffs' lower figure for May to August 1999, and the Jordans back rent requirement...

Court Disposition

Plaintiffs' application substantially successful; conditions of the interlocutory injunction were to be varied and the plaintiffs were awarded costs of the application in the proceedings.

Orders

  • ['Cohibar occupation fee for May to August 1999 inclusive to be paid at the rate of $6,250.00 per month.' 'Cohibar occupation fee of $11,875.00 per month applied from 1 September 1999 until further order or final hearing by agreement of the parties.' 'The requirement for payment of Jordans back rent of $100,000.00...