Multi-Vendor Support Services Pty Limited v Darryl Nicke [2005] NSWSC 443

New South Wales Supreme Court

CITATION : Multi-Vendor Support Services Pty Limited v Darryl Nicke [2005] NSWSC 443

HEARING DATE(S) : 24/3/05

JUDGMENT DATE : 24 March 2005

JURISDICTION : Equity Division

JUDGMENT OF : Einstein J

DECISION : Interlocutory injunctive relief granted - See Judgment following paragraph 25

CATCHWORDS : Practice and Procedure - Interlocutory relief - Principles

LEGISLATION CITED : Supreme Court Act (1970) (NSW)

Appleton Papers Inc v Tomasetti Paper Pty Limited [1983] 3 NSWLR 208 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 Eng Mee Yong v Letchumanan [1980] AC 331 CASES CITED : Magna Alloys & Research Pty Ltd v Coffey [1981] VR 23 Plimpton v Schiller (1876) 4 Ch D 286 Ross v Internet Wines (2004) 60 NSWLR 436 Shercliffe v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 Stolznow v Calvert (1982) NSWLR 749

Multi-Vendor Services Pty Limited (Plaintiff) PARTIES : Mr Darryl Nicke (Defendant)

FILE NUMBER(S) : SC 1997/05

Mr S Climpson (Plaintiff) COUNSEL : Mr J Young (Defendant)

Lewarne Goldsmith (Plaintiff) SOLICITORS : Wright Stell Lawyers (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Einstein J

Thursday 24 March 2005 ex tempore Revised 10 May 2005

1997/05 Multi-Vendor Support Services Pty Limited v Darryl Nicke

JUDGMENT

1 There is before the court an amended summons brought by Multi-Vendor Support Services Pty Limited against Darryl Nicke. The amended summons was filed on 24 March 2005. The court marks for identification on the application for interlocutory relief [MFI P1], a draft chronology prepared by the plaintiff summarising certain of the information appearing in the affidavits upon which the plaintiff moves. 2 On the authorities there are two enquiries to be made on an application for interlocutory relief. These are, firstly, an inquiry as to whether or not the plaintiff has been able to establish a serious or prima facie case justifying, subject to balance of convenience parameters, the granting of interlocutory relief. Mr Young of counsel, who represents the defendant today, has conceded that the plaintiff's affidavit material establishes just such a prima facie or serious case, accepting also that in terms of the evidence which is before the court, the crucial parameter concerns the balance of convenience. 3 For those reasons it is unnecessary to repeat the materials which are before the court in terms of a prima facie case, save to indicate that the strength of the prima facie case is itself a matter to be taken into consideration where the balance of convenience is to be determined. Indeed, the extent to which a plaintiff needs to prove a prima facie case has been said to be linked with the balance of convenience inquiry. 4 In approaching the interlocutory application it has seemed to me that the principles which govern the Court's approach to the question are those generally dealt with and set out in Appleton Papers Inc v Tomasetti Paper Pty Limited [1983] 3 NSWLR 208. 5 In Appleton, McLelland J pointed out the importance of recalling that the Court here deals with a discretionary power conferred on the Court in very general terms, referring to section 66(4) of the Supreme Court Act, which provides that the Court may at any stage of proceedings on terms grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do. 6 As McLelland J made plain at page 216 citing from the judgment of Moffitt P in Stolznow v Calvert (1982) NSWLR 749: