Acqualounge Manly P/L v Barecall P/L [2005] NSWSC 627

New South Wales Supreme Court

CITATION : Acqualounge Manly P/L v Barecall P/L [2005] NSWSC 627

HEARING DATE(S) : 22/06/05

JUDGMENT DATE : 23 June 2005

JUDGMENT OF : White J

DECISION : Application for interlocutory relief refused.

CATCHWORDS : PRACTICE AND PROCEDURE - Interlocutory application for an injunction to restrain the defendant lessor from interfering with the plaintiff lessee's use or occupation of the leased premises - Notice of termination of lease served by leaving at premises early in the morning - Lessee placed in administration later that day - Locks changed by lessor - Serious question to be tried about whether defendant's possession is contrary to s 440C of Corporations Act - Undertaking as to damages offered only by company in administration - Whether legislature intended s 443B to confer on administrator a grace period of 7 days and no further undertaking should be required - Corporations Act s 440C, 441F, 443B - Held that the usual requirement to give an undertaking of some worth had not been displaced - Application refused.

LEGISLATION CITED : Corporations Act 2001 (Cth)

Telaro Pty Ltd v Burns [2000] NSWSC 26 CASES CITED : B&M Activities Pty Ltd v Perpetual Trustees Victoria Ltd (Young J, 7/9/98) Re Java 452 Pty Ltd (Administrator Appointed); Permanent Trustee Australia Ltd v Stout (1999) 32 ACSR 507

Acqualounge Manly Pty Limited PARTIES : v Barecall Pty Limited

FILE NUMBER(S) : SC 3591/05

Plaintiff: M Dawson COUNSEL : Defendant: B Rayment QC, A Lo Surdo

Plaintiff: Gibsons Lawyers SOLICITORS : Defendant:

LOWER COURT JURISDICTION :