Atkins v Cooper [2008] NSWSC 1077

New South Wales Supreme Court

CITATION : Atkins v Cooper [2008] NSWSC 1077

HEARING DATE(S) : 9 October 2008

JUDGMENT DATE : 9 October 2008

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Interlocutory injunction granted restoring possession of dog to plaintiff.

CATCHWORDS : EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Balance of convenience.

CATEGORY : Procedural and other rulings

CASES CITED : Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533

Wendy Atkins (P) PARTIES : Annette Cooper (D1) Glenda Jackson (D2)

FILE NUMBER(S) : SC 5015/08

COUNSEL : T D Anderson (P) A Giurtalis (Ds)

SOLICITORS : Adamson Solicitors (P) MacLean & Curtis (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 9 OCTOBER 2008

5015/08 WENDY ATKINS v ANNETTE COOPER & ANOR JUDGMENT 1 HIS HONOUR: These are proceedings about the location of a prize dog that is highly valued and it seems to me, on the evidence, is high in the affections of both the plaintiff and the defendants. I say that in relation to the plaintiff, despite the fact that the evidence shows that she does conduct a kennel. 2 Each side has raised a serious question to be tried that she or they are the owner or owners of the dog. That having been said, bearing in mind the test in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535 - 536, it is appropriate for me on this application not to weigh the respective strengths of the parties' cases, but to turn to the balance of convenience. 3 It seems to me that the dog has essentially been in the care and control of the plaintiff since 2004 except since last month, when she was surreptitiously removed from where she had been placed at the time by the plaintiff. 4 It is true, as has been put to me by Mr Giurtalis, of counsel for the defendants, that for some part of the four years the defendants as well as the plaintiff lived on the property where the dog was housed. However, in the end, the evidence shows that it is the plaintiff who has principally had the custody, the showing and the management of the dog (including the management of her breeding) since 2004. 5 In those circumstances, it is my view that the regime appropriate to be established is a regime whereby the dog is returned forthwith to the custody of the plaintiff and the defendants are restrained from removing her from that custody until the further order of the Court.