Fletcher, Geoffrey Ross & Anor v Foodlink Ltd & Ors [1995] FCA 837

CATCHWORDS PRACTICE AND PROCEDURE - interlocutory injunction refused - no jurisdiction under s 23 the Federal Court of Australia Act to grant an injunction restraining respondent from ejecting applicant from premises where applicant makes no claim of entitlement to the premises, but wants the use thereof until trial to generate moneys to fund the litigation Federal Court of Australia Act 1976 (Cth) - s 23 Trade Practices Act 1974 (Cth) - ss 52, 82, 87 Cases Considered American Cyanamid Co v Ethicon Ltd [1975] AC 396 Custom Credit Corporation Ltd v Whitehall Holdings Pty Ltd (Supreme Court of Western Australia, Ipp J, unreported, 7 April 1992) Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Siskina (Owners of Cargo Lately Laden on Board) v Distos Compania Naviera S.A. [1979] AC 210 Geoffrey Ross Fletcher and Janice Beryl Fletcher v Foodlink Ltd & Ors QG 164 of 1995 Drummond J Brisbane 18 October, 1995

IN THE FEDERAL COURT OF AUSTRALIA) No. QG 164 of 1995 QUEENSLAND DISTRICT REGISTRY ) GENERAL DIVISION ) BETWEEN: GEOFFREY ROSS FLETCHER and JANET BERYL FLETCHER personally and as trustees of the G. & J. Fletcher Family Trust Applicant AND: FOODLINK LTD. ACN 009 786 485 First Respondent AND: BON-IRS PTY. LTD. ACN 009 992 161 Second Respondent AND: G.C. BONNEY & CO. (DEVELOPMENTS) PTY. LTD. ACN 009 900 458 Third Respondent AND: GEOFFREY CLIVE BONNEY Fourth Respondent AND: JOHN TERENCE BERRY Fifth Respondent AND: ROBERT VICTOR HARRIS Sixth Respondent MINUTES OF ORDERS JUDGE MAKING ORDER: Drummond J DATE OF ORDER: 18 October, 1995 WHERE MADE: Brisbane THE COURT ORDERS THAT: 1. Upon the first respondent by its counsel undertaking to keep an accurate record identifying the stock in trade at supermarket premises at 119 Toolooa Street, Gladstone sold and the amount of the purchase moneys it receives for the stock, the application seeking interlocutory relief against the first respondent is dismissed. 2. The application seeking interlocutory relief against the second respondent is dismissed. 3. The costs of and incidental to the application for interlocutory relief are the respondents' costs in the proceedings. UPON the applicants by their counsel: a. providing the usual undertaking as to damages; b. undertaking to prosecute the foreshadowed application for leave to appeal this decision with reasonable expedition; and c. undertaking not to deal with the stock in trade pending the hearing of the foreshadowed application for leave to appeal otherwise than in the ordinary course of business THE COURT FURTHER ORDERS THAT the first and second respondents are respectively restrained until the hearing of the application for leave to appeal this decision or until further order from taking any action to enforce any of their default rights under the chattel mortgage and the operating agreement. THE COURT DIRECTS THAT: 1. The applicants file and serve their amended statement of claim by 25 October, 1995. 2. The respondents file and serve their reply and answer (if any) by 15 November, 1995. 3. The parties file and serve their verified list of documents by 20 December, 1995. 4. Mutual inspection be completed by 2 February, 1996. 5. The matter be listed for further directions on a date in February to be fixed by the District Registrar and advised to the parties. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.