HEARTWOOD ARCHITECTURAL TIMBER & JOINERY PTY LTD AND ANOR V HOTEL PROPERTIES LTD AND ANOR HC AK CIV 2008-404-5081

HEARTWOOD ARCHITECTURAL TIMBER & JOINERY PTY LTD AND ANOR V HOTEL PROPERTIES LTD AND ANOR HC AK CIV 2008-404-5081

Because HPL failed to make full and frank disclosure on the ex parte application (including not disclosing Queensland freezing orders), misrepresented the status of proceedings, and gave an inadequate undertaking that was not honoured, the interim injunction issued 11 August 2008 was improperly obtained and must be set aside; indemnity costs are warranted and fixed at $15,000 plus disbursements.

Citation
openlaw-b056adca_2a5f_4c22_ac0a_68d192d74d6d.pdf
Parties
First Applicant: Heartwood Architectural Timber & Joinery Pty Ltd; Second Applicant: BCA Code Consultant Pty Ltd; First Respondent: Hotel Properties Ltd; Second Respondent: Southern BN Pty Ltd (in liquidation)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 February 2009
Procedural Posture
Civil Interim Injunction / Application to Discharge Interim Injunction and Seek Indemnity Costs (interlocutory)
Outcome
Interim injunction dated 11 August 2008 set aside; Duncan Cotterill granted leave to withdraw as solicitors on the record; HPL ordered to pay applicants' costs on an indemnity basis fixed at $15,000 plus disbursements.
Legal Topics
Ex Parte Injunctions, Freezing Orders, Duty of Full and Frank Disclosure, Undertakings to the Court, Indemnity Costs
Civil Procedure Equity Injunctions Costs Ex Parte Injunctions Freezing Orders Duty of Full and Frank Disclosure Undertakings to the Court +1 more

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Parties

Heartwood Architectural Timber & Joinery Pty Ltd

First Applicant

BCA Code Consultant Pty Ltd

Second Applicant

Hotel Properties Ltd

First Respondent

Southern BN Pty Ltd (in liquidation)

Second Respondent

Procedural Posture

Civil Interim Injunction / Application to Discharge Interim Injunction and Seek Indemnity Costs (interlocutory)

Legal Issues

  1. 1 Whether the ex parte interim injunction was obtained without full and frank disclosure
  2. 2 Whether prior Queensland freezing orders and other material were withheld from the Court
  3. 3 Whether the undertaking to pay damages was adequate and honored

Ratio Decidendi

Because HPL failed to make full and frank disclosure on the ex parte application (including not disclosing Queensland freezing orders), misrepresented the status of proceedings, and gave an inadequate undertaking that was not honoured, the interim injunction issued 11 August 2008 was improperly obtained and must be set aside; indemnity costs are warranted and fixed at $15,000 plus disbursements.

Court Disposition

Interim injunction dated 11 August 2008 set aside; Duncan Cotterill granted leave to withdraw as solicitors on the record; HPL ordered to pay applicants' costs on an indemnity basis fixed at $15,000 plus disbursements.

Orders

  • Interim injunction dated 11 August 2008 is set aside
  • Hotel Properties Ltd to pay Heartwood's costs of and incidental to this application on an indemnity basis fixed at $15,000 plus disbursements