Dorissa Pty Ltd v Schwob's Swiss Pty Ltd & Ors [1998] FCA 398

FEDERAL COURT OF AUSTRALIA

INTERLOCUTORY INJUNCTIONS - application for injunction to prevent termination of franchise agreement - whether a serious issue to be tried that there was a concluded agreement for sale of business - whether balance of convenience in favour of granting injunction - whether ex parte injunction should be discharged for failure to disclose fully and properly to the court all relevant and material circumstances - material non‑disclosure. Tate Access Floors Inc v Boswell [1991] Ch 512 - followed Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350 - followed Dart Industries Inc v David Bryar & Associates Pty Ltd (1997) 38 IPR 389 - followed Re Printing and Kindred Industries Union; Ex parte Nationwide news Pty Ltd (t/as Cumberland Newspaper Group) (1994) 122 ALR 303 - applied Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 - applied DORISSA PTY LTD v SCHWOB'S SWISS PTY LTD & ORS VG 146 of 1998 GOLDBERG J MELBOURNE 17 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 146 of 1998

BETWEEN: DORISSA PTY LTD

(ACN 005 619 394)

Applicant

AND: SCHWOB'S SWISS PTY LTD

(ACN 005 432 799)

First Respondent

SCHWOB'S SWISS (FRANCHISING) PTY LTD

(ACN 006 475 458)

Second Respondent

REX DEUTSCHER

Third Respondent

CARLO LACOTA

Fourth Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 17 APRIL 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: UPON the applicant by its counsel and Mr Bernard Bommarito and Mrs Danielle Bommarito by their counsel undertaking to pay to any party adversely affected by the undertakings given by the firstnamed and secondnamed respondents hereunder referred to such compensation (if any) as the Court thinks just, in such manner as the Court directs. AND UPON (a) the Firstnamed and secondnamed respondents by their counsel undertaking that they will not whether by themselves or by their servants or agents or howsoever otherwise terminate the franchise agreement dated 1 June 1990 being exhibit GZ5 to the affidavit of George Adrian Zolis sworn 9 April 1998 and otherwise act upon the notice of default being exhibit GZ9 to the said affidavit. (b) The firstnamed respondent by its counsel undertaking that it will not whether by itself or by its servants or agents or howsoever otherwise enter into or attempt to take possession of the premises situated at 70 King Street, Melbourne the subject matter of the sublease referred to in exhibit GZ6 to the affidavit of George Adrian Zolis sworn 9 April 1998, pending the final hearing and determination of the proceeding herein or further order. 1. The final hearing of this proceeding be fixed for 6 and 7 May 1998. 2. The trial be by affidavit. 3. The applicant have leave to file and serve an amended application and an amended statement of claim by 4.00pm on 21 April 1998. 4. The respondents file and serve their defence and any cross‑claim by 4.00pm on 24 April 1998 and that the respondents have leave to join Bernard Bommarito and Danielle Bommarito as cross‑respondents to any such cross‑claim. 5. The applicant and cross‑respondents file and serve any reply and defence to any cross‑claim by 4.00pm on 30 April 1998. 6. There be mutual discovery by 4.00pm on 27 April 1998 and that inspection be given of such discovered documents by 4.00pm on 1 May 1998. 7. The applicant and cross‑respondents file and serve any further affidavits upon which they wish to rely by 4.00pm on 24 April 1998. 8. The respondents file and serve any further affidavits upon which they wish to rely by 4.00pm on 1 May 1998. 9. The applicant and cross‑respondents file and serve any affidavits upon which they wish to rely in reply by 4.00pm on 4 May 1998. 10. Any objections to admissibility of any parts of any affidavits are to be filed and exchanged by 4.00pm on 1 May 1998 and any responses to any such objections are to be filed and exchanged by 4.00pm on 5 May 1998. 11. The parties file and exchange their contentions of fact and law by 4.00pm on 5 May 1998. 12. The applicant, in consultation with the other parties, compile an indexed and paginated court book containing current pleadings and particulars, affidavits and a copy of documents that any party will seek to tender at the hearing. Three copies of the book are to be filed by 4.00pm on 5 May 1998. 13. The parties file and exchange chronologies by 4.00pm on 5 May 1998. 14. Liberty is reserved to all parties to apply for such further or other orders and directions as they may be advised. 15. The costs of the application and hearing for interlocutory relief be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules