Duckworth as Trustee for Ocean Farms Trust v H G & R Securities Pty Ltd [2007] FCA 1690

FEDERAL COURT OF AUSTRALIA

Duckworth as Trustee for Ocean Farms Trust v H G & R Securities Pty Ltd [2007] FCA 1690

PRACTICE AND PROCEDURE –interlocutory injunction – whether serious question to be tried that the stipulation for a risk fee in a facility agreement is unconscionable conduct in contravention of s 12CC of the Australian Securities and Investments Commission Act 2001 (Cth) Australian Securities and Investments Commission Act 2001 (Cth) ss 12CA, 12CC, 12GD Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Australian Competition and Consumer Commission v Simply No‑Knead (Franchising) Pty Ltd (2000) 104 FCR 253 NEIL JAMES DUCKWORTH AS TRUSTEE FOR OCEAN FARMS TRUST v H G & R SECURITIES PTY LTD AND BALANCED SECURITIES LIMITED WAD 100 OF 2007

SIOPIS J

9 JULY 2007

PERTH IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 100 OF 2007

BETWEEN: NEIL JAMES DUCKWORTH AS TRUSTEE FOR OCEAN FARMS TRUST

Applicant

AND: H G & R SECURITIES PTY LTD

First Respondent

BALANCED SECURITIES LIMITED

Second Respondent

JUDGE: SIOPIS J

DATE OF ORDER: 9 JULY 2007

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1 Upon the applicant undertaking to the Court that he will pay to any party restrained by this interlocutory injunction or any interim continuation thereof such compensation as the Court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the Court or in accordance with such directions as the Court may make and to be paid in such manner as the Court may direct, until judgment or further order in this application, the first respondent be restrained from exercising, whether by their directors, servants, agents or otherwise, any powers of sale under any of the loan agreements and/or mortgages made between the applicant and first respondent to sell the land known as portion of Melbourne Location 3913 being the whole of the land in Certificate of Title Volume 1553 Folio 661 or the land known as Lots 33 and 34 Sappers Road, Lancelin, Western Australia, or to deal in any way with any portion of the abovementioned land or to sell any of the assets of, or to appoint a receiver over, West Sunrise Estate Pty Ltd. 2 Until further order, the applicant is to pay to the first respondent the sum of $150,000 per month on the twenty-fifth day of each month, commencing on 25 July 2007, on account of its obligations to pay interest and other fees under the loan agreements between the applicant and the first respondent. 3 In the event that the applicant defaults in the performance of order two, the first respondent shall be at liberty to apply on three clear days notice to set aside the injunction referred to in order one above.