Idoport Pty Ltd v National Australia Bank [2] [1999] NSWSC 940

New South Wales Supreme Court CITATION : Idoport Pty Ltd v National Australia Bank [2] [1999] NSWSC 940 CURRENT JURISDICTION : Equity Division, Commercial List FILE NUMBER(S) : 50113/98 HEARING DATE(S) : 26,27,28,29,30.7.99, 2,3,4 and 5.8.99 JUDGMENT DATE : 27 August 1999

PARTIES : Idoport Pty Ltd & anor (Plaintiffs) National Australia Bank Limited & ors (Defendants) JUDGMENT OF : Einstein J

COUNSEL : T.J. Hancock & M. Dicker (Plaintiffs) Tom (AO) Hughes QC, H.K. Insall (Defendants) SOLICITORS : Withnell Hetherington (Plaintiffs) Freehill Hollingdale & Page (Defendants) CATCHWORDS : Equity - Practise and procedure - Interlocutory injunctions - Keeping of accounts as an alternative to grant of interlocutory injunctive relief - Juridical basis for ordering an account - Plaintiffs seek equitable relief including equitable compensation for alleged breaches of fiduciary duty - Order for the keeping of a record of profits - Costs of interlocutory application - Parties respective rights can only be properly determined at final hearing - Costs of interlocutory application to be costs in the cause. ACTS CITED : Supreme Court Act Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Bridson v McAlpine (1845) 50 ER 90 CASES CITED : London, Chatham and Dover Railway Co v South Eastern Railway Co (1891-94) All E R Rep 1610 McIntosh v Great Western Railway Company (1865) 42 ER at 190 Mitchell v Henry (1880) 15 Ch D 181 Plimpton v Spiller (1876) 4 Ch D 286 DECISION : 1. Leave be granted to the plaintiffs to file and serve a further amended notice of motion to embrace a claim to an order in terms of order 3.; 2. In these orders and directions: "AUSMAQ Service" means the service of that name currently operated by Australian Automated Quotation Market (AUSMAQ) System Ltd and AUSMAQ (NZ) Ltd. "MAPLE LEAF (OPERATION FIRST CHOICE) PROJECT", "MAPLE LEAF (OPERATION FIRST CHOICE) PRODUCT", "GATEWAY PROJECT" and "GATEWAY PRODUCT", "MARGIN LENDING PROJECT" AND "MARGIN LENDING PRODUCT" AND "FX AUTO-DEALING PROJECT" AND "FX AUTO-DEALING PRODUCT" mean the projects and products of those names referred to in the affidavit of Alan Lloyd Copsey sworn 16 July 1999 and filed in these proceedings on behalf of the Defendants.; 3. Upon the plaintiffs by their counsel giving to the Court the usual undertaking as to damages, order that until the determination of these proceedings or further order, each of National Markets Group Limited ("NMG"), Australian Automated Quotation Market (AUSMAQ) System Limited and National Australia Bank Limited ("NAB"), by themselves and their respective servants and agents do everything on the part of each necessary to keep and procure to be kept a record of profits made by:; (a) the AUSMAQ Service;; (b) NAB's MAPLE LEAF (OPERATION FIRST CHOICE) PROJECT AND MAPLE LEAF (OPERATION FIRST CHOICE) PRODUCT;; (c) the NAB'S GATEWAY PROJECT and GATEWAY PRODUCT;; (d) the NAB's MARGIN LENDING PROJECT and MARGIN LENDING PRODUCT;; (e) the NAB's FX AUTO-DEALING PROJECT and FX AUTO-DEALING PRODUCT.; 4. Order 3 above be suspended until the expiration of a period of 14 days from 27 August 1999.; 5. Costs of the plaintiffs' notice of motion filed 4 June 1999 as further amended on 3 and 27 August 1999 are to be costs in the cause.; 6. The plaintiffs' notice of motion filed 4 June 1999 as further amended on 3 August and 27 August 1999 be otherwise dismissed.; [Orders 7-23 related to ancillary directions]