Monarch Investments Pty Ltd v Yeramba Estates Pty Limited [1997] FCA 68

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 917 of 1996 GENERAL DIVISION ) Between: MONARCH INVESTMENTS PTY LIMITED Applicant And: YERAMBA ESTATES PTY LIMITED Respondent REASONS FOR JUDGMENT EINFELD J SYDNEY 7 FEBRUARY 1997 The matter that falls for decision this afternoon in this case is whether there should be pronounced in favour of the applicant an interlocutory injunction against the respondents restraining them from advertising or promoting for sale their property development at Warnervale on the Central Coast under the name Monarch Hills. It is proposed by the respondents that there will appear tomorrow in the Daily Telegraph newspaper some small advertising, that there will thereafter appear during the course of the next week advertising in the Central Coast Express, and that there will be other advertising on local radio. Next weekend there is proposed to be some television advertisements for which it is said space has been booked and appropriate preparations are taking or have taken place to produce the appropriate advertisements. From the evidence it was not clear whether this advertising was to appear on the network stations appearing under the name of channel 9 or channel 10, but for present purposes it may be assumed that wherever the television advertising appears, it will be beamed to viewers both in Sydney and on the Central Coast. The hearing of this matter was significantly expedited and a judgment on the whole litigation is imminent, but it is unlikely to be available for delivery before the television advertisement is due to be aired next weekend. Therefore consideration must now be given to whether the interlocutory injunction sought should be granted. It is clear from the evidence that the applicant's greatest fear in terms of confusion, misleading and deceptive conduct, or passing off will, if at all, be exemplified or committed when the television advertisements go to air. Between the time this matter came into the list originally to the present, the matter of advertising by the respondents has been dealt with by undertakings or, in the case of the last week or so, by a statement made from the bar table by senior counsel for the respondents which, as I pointed out at the previous hearing, was tantamount to an undertaking and hence there was no need for the court to intervene in any particular way.