Popeye Holdco Pty Limited v Intermediate Capital Asia Pacific 2008 GP Limited [2017] FCA 369

FEDERAL COURT OF AUSTRALIA

Popeye Holdco Pty Limited v Intermediate Capital Asia Pacific 2008 GP Limited [2017] FCA 369 File number: SAD 54 of 2017

Judge: BESANKO J

Date of judgment: 10 April 2017

Catchwords: PRACTICE AND PROCEDURE – application for an interlocutory injunction to restrain the respondents from exercising rights under particular written agreements – whether applicants have established a prima facie case – construction of the agreements – where applicants argue misleading and deceptive conduct under s 18 of the Australian Consumer Law – estoppel – breach of directors' duties under general law and under the Corporations Act 2001 (Cth) – unconscionable conduct within ss 20 and 21 of the Australian Consumer Law – recovery of sum amounting to a penalty – whether balance of convenience favours granting injunction – where property held by applicants is property to which respondents claim an entitlement – whether security for the undertaking as to damages is necessary.

Legislation: Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) ss 18, 20, 21, 237, 243 Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth) ss 79, 180, 181, 191, 254K

Cases cited: Australian Competition and Consumer Commission v Samton Holdings Pty Ltd and Others (2002) 117 FCR 301 Butcher and Another v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592 Campbell and Another v Backoffice Investments Pty Ltd and Another (2009) 238 CLR 304 Kakavas v Crown Melbourne Limited and Others (2013) 250 CLR 392 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357 Ottoway Engineering Pty Ltd v Westpac Banking Corporation [2016] FCA 635 Austin RP, Ford's Principles of Corporations Law (16th ed, LexisNexis Butterworths, 2015)