Harrison Partners Constructions Pty Limited v Jevena Pty Limited [2004] NSWSC 893

New South Wales Supreme Court

CITATION : Harrison Partners Constructions Pty Limited v Jevena Pty Limited [2004] NSWSC 893 HEARING DATE(S) : 24/09/04 JUDGMENT DATE : 24 September 2004

JURISDICTION: Equity Division Technology and Construction List JUDGMENT OF : Einstein J DECISION : Short minutes to be brought in.

CATCHWORDS : Practice and procedure - Application to dissolve undertakings to the Court LEGISLATION CITED : Supreme Court Act 1970 (NSW) Trade Practices Act 1974 (Cth) American Cyanamid Co v Ethicon Ltd (1975) AC 396 Appleton Papers Inc v Tomasetti Paper Pty Limited [1983] 3 NSWLR 208 Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 CASES CITED : Eng Mee Yong v Letchumanan [1980] AC 331 Magna Alloys and Research Pty Limited v Coffey [1981] VR 23 Shercliffe v Engadine Acceptance Corporation (1978) 1 NSWLR 729 Stolznow v Calvert (1982) NSWLR 749 PARTIES : Harrison Partners Constructions Pty Limited ACN 098 802 450 (Plaintiff) Jevena Pty Limited ACN 076 830 147 (Defendant) FILE NUMBER(S) : SC 55023/04 COUNSEL : Mr C Stomo (Plaintiff) Mr C Moschoudis (Defendant) SOLICITORS : David Cohen & Co (Plaintiff) Tzovaras Legal (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION LIST

Einstein J

Friday 24 September 2004 ex tempore Revised 27 September 2004

55023/04 Harrison Partners Constructions Pty Limited v Jevena Pty Limited JUDGMENT 1 There is before the Court a notice of motion pursuant to which the defendant seeks an order dissolving undertakings given to the Court by the defendant on 17 June 2004. The interlocutory situation is held by an accommodation. The proceedings are related to initial proceedings commenced in March 2004 in the Equity Division. Injunctive relief was sought at an interlocutory level. 2 In the fullness of time and following an exchange of affidavits, the interlocutory position was clarified following the plaintiff's application for Mareva injunctive relief which, by reason of the accommodation, did not lead to a judgment. The accommodation involved the giving to the Court on 17 June 2004 by the plaintiff and by Mr Xu of the usual undertaking as to damages in return for an undertaking given to the Court by the defendant in the following terms " 2. The defendant by its counsel undertakes to the court that after allowing so much of the sale proceeds as are necessary for