New South Wales Supreme Court CITATION : Minnamurra Racing Services Pty Ltd v Rogerson [2005] NSWSC 1054 HEARING DATE(S) : 29 & 30 September, 5 & 6 October 2005 JUDGMENT DATE : 6 October 2005 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Application for continuation of ex parte injunction refused. CATCHWORDS : EQUITY [334] - Equitable remedies - Injunctions - Interlocutory injunctions - Serious question to be tried - Probability of success - Injunction in support of claims in trespass to goods and detinue - No case that plaintiff has possession or immediate right to possession of goods. Minnamurra Racing Services Pty Ltd t/as Dynamic Syndications ABN 53 111 825 720 (P) PARTIES : Graeme Rogerson (D) FILE NUMBER(S) : SC 5159/05 M Dulhunty (P) COUNSEL : R S Angyal SC (D) B Hayward & Co (P) SOLICITORS : Macquarie Legal Practice (D) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J THURSDAY, 6 OCTOBER 2005 5159/05 MINNAMURRA RACING SERVICES PTY LIMITED t/as DYNAMIC SYNDICATIONS ABN 53 111 825 720 v GRAEME ROGERSON JUDGMENT 1 HIS HONOUR: This is an application for the continuation of an injunction relating to the possession and location of racehorses. The racehorses are owned by nine different syndicates. There is an arguable case that the plaintiff in the proceedings is what is called the administration manager of each of these syndicates. The defendant has been the trainer of the horses and has been the racing manager for the purposes of the Rules of Racing of Racing New South Wales. 2 It is reasonably clear on the evidence that the majority, in number and by interest, of the persons composing the syndicates, wish the defendant to cease to be the trainer and the racing manager of the horses. There is a strong arguable case that they have taken the appropriate steps to remove him as trainer of the horses. There is a considerably thinner argument that the same steps have also removed him as the racing manager of the horses. 3 If the syndicate members, or some of them, were plaintiffs in these proceedings, it may well be that they would be able to secure interlocutory relief governing the whereabouts of the horses. The greatest difficulty that the plaintiff faces in these proceedings is the argument put by Mr Angyal of Senior Counsel for the defendant, that the plaintiff has no standing to bring these proceedings or this application and that this application should be dismissed because of this lack of standing. 4 Mr Angyal argues that possession of the horses is vested in the training manager under the Rules of Racing. That may be so, but, as I say, there is an arguable case that his appointment to that office has been terminated. However, if that be correct, the possession or immediate right to possession of the horses will have revested in the owners. 5 It is argued on behalf of the plaintiff either that, if the defendant were dismissed as manager, the possession, or immediate right to possession, would revest pro tem in the plaintiff as administration manager, it being the only person who could then be described as the manager of the syndicates. 6 However, the difficulty with the case put forward on the plaintiff's behalf is that there is definition in the documentation of the role of the administration manager and that is a role that does not give it possession of the horses. 7 Without going into all the various written provisions that have been cited to me, I refer to the Product Disclosure Statement, the terms of which, it is arguable, do become incorporated in the agreement between the administration manager and the owners. That document provides that the administration manager has responsibility for the preparation of the partnership annual accounts; the management of communications between the racing manager, the stables and the partners; and the provision of administrative services to the partnership. Neither that formula nor any other part of the documentation which I have been shown can be taken as vesting the possession of the horses, or an immediate right to their possession, in the plaintiff. 8 The nature of the injunctive relief sought is injunctive relief associated with tortious rights in trespass to the horses or by way of an action for their detention. To support those causes of action it has always been necessary that the plaintiff should have possession, or an immediate right to possession, of the chattels concerned. I cannot see it has been established before me that there is an arguable case that the plaintiff has possession or any right to possession of the chattels. I have already mentioned the contractual basis on which it has been argued that it has such a right and held that such a right is not established in that way. 9 It has also been suggested that, because the administration manager has a right to one per cent of the winnings of the horses, such a financial interest in the horses gives it a right to bring these proceedings, but I cannot see that that is so, even arguably. 10 Bearing in mind that I have said that it is established that a majority of the members of each syndicate do not wish the defendant to continue as trainer or racing manager of the horses, it may be thought that the objection that is taken on the defendant's behalf is technical. It certainly gives the Court no pleasure in the year 2005 to see proceedings, even interlocutory proceedings, disposed of on technical grounds. However, it is the Court's duty to analyse and enforce the rights of parties according to law and it is my view that, according to law, the plaintiff as administration manager has no right to make this application, albeit the owners may well be able to succeed in obtaining interlocutory relief in proceedings brought by them. 11 The matter has gone on for over three days through the exigencies of other matters in the Duty List. The situation is helped to some degree because Racing New South Wales has indicated that it will not, before 21 October 2005, determine whether it will act upon the application for change of racing manager which has been lodged with it. During the three days on which the matter has proceeded, no application has been made to the Court to join any of the syndicate members, or, indeed, anyone other than the administration manager, as plaintiff in the proceedings. 12 For the reasons that I have given, the application for continuation of injunctive relief as made to the Court cannot succeed. The application is dismissed. 13 I order the plaintiff to pay the defendant's costs of the application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.