Gull Petroleum (W.A.) Pty Ltd & Anor v Sinbads Nightclub Pty Ltd [1986] FCA 561

So

NOT INTENDED FOR GENERAL DISTRIBUTION

IU THE FEDERAL TCURT WF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

No. WA Gl0«z of 1986

BETWEEN:

GULL PETROLEUM (W.A.) PTY. LTD. First Applicant

and

RAMILO NOMINEES PTY. LTD. Second Applicant

and

SINBADS NIGHTCLUB PTY. LTD. Respondent

CORAM: TOOHEY J. 4 November 1986

EX TEMPORE REASONS FOR JUDGMENT There is before the Court a claim for an interlocutory infunction to restrain the respondent from engaging in certain

conduct which is defined in the application.

I am satisfied as to the Court's jurisdiction to entertain the application and the claim for an interlocutory injunction, on the basis that what is being asserted for the purposes of today's proceedings is an infringement of Part V of the Trade Practices Act 1974 and the common law tort of passing off, which is based essentially upon the same facts as are said to

give rise to the claim under the Trade Practices Act.

Two questions I have to consider this afternoon are

these: one, whether there 15 a serious question to be tried. Unless the applicants make qoud that proposition, there 1s no justification for the granting of an interlocutory injunction. If they make good that proposition, the question becomes one of where

the balance of convenience lies.

Now, as to the first of those propositions, I am satisifed that there is a serious question to be tried. There are matters that remain unresolved, and will remain unresolved, I imagine, until the substantive hearing takes place. Perhaps the most important of them is the extent of the rights and obligations between the first applicant in particular and the respondent in terms of the purchase of products from the first applicant, and whether or not the respondent is committed to deal exclusively in

the first applicant's products.

So far as that is concerned, there is no evidence before