Ricon Constructions P/L v. Belvoir Apartments & Ors [1994] FCA 908

JUDGMENT No. sone? O87 44.

Ni R_DISTRIB' IN

FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES REGISTRY ) No. NG 808 of 1994

GENERAL DIVISION

BETWEEN:

RICON CONSTRUCTIONS PTY LIMITED Applicant

AND:

BELVOIR APARTMENTS & ORS

Respondents

CORAM: SACKVILLE J

PLACE: SYDNEY

DATE: 22 NOVEMBER 1994 28 NOV 1994

FEDERAL COURT OF AUSTRALIA PRINCIPAL INS_ FOR NT HIS HONOUR: This is an ex parte application for injunctive

relief brought by Ricon Constructions Pty Limited as applicant. Although six respondents are named, the injunctive relief is sought only against the sixth respondent, MMI General Insurance Limited. There is evidence on affidavit that MMI, as I shall call it, was aware, at least in general terms, that an

application was to be made ex parte to the Court.

The matter arises because of what is described as a contract bond dated 15 October 1993. That bond is between MMI as "surety", and the applicant as "principal". The contract bond provides for the

payment by MMI to the second respondent, Austcorp International Ltd, as "obligee" in certain circumstances specified in the contract bond. The evidence shows that Austcorp International Ltd has been substituted as "obligee" by Belvoir Apartments Pty Limited, the first respondent. The purpose of the application today is to restrain payment by MMI to the first respondent. The relationship between the first respondent and the applicant is that the applicant was the builder for a development undertaken

by the first respondent.

Mr Perram has put the applicant's case in a number of ways. I do not think it appropriate at this stage to deal in detail with what he has said beyond this one observation. Insofar as the case is based upon what is said will be misleading and deceptive conduct on the part of MMI, I can see considerable difficulties in the path of such an argument succeeding. However, it is inappropriate to express any firm, let alone concluded, view on