Standards Australia Ltd v Record Funds Management Ltd [2008] NSWSC 559

New South Wales Supreme Court

CITATION : Standards Australia Ltd v Record Funds Management Ltd [2008] NSWSC 559

HEARING DATE(S) : 27 & 28 May 2008

JUDGMENT DATE : 28 May 2008

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Interlocutory injunction granted.

CATCHWORDS : EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Appropriate balancing exercise.

CATEGORY : Procedural and other rulings

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

Standards Australia Limited (P) PARTIES : Record Funds Management Limited (D1) ASX Operations Pty Limited (D2)

FILE NUMBER(S) : SC 2948/08

K M Richardson (P) COUNSEL : C A Moore (D1) T J Webster, Solicitor (D2)

Minter Ellison (P) SOLICITORS : Mallesons Stephen Jaques (D1) Middletons (D2)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 28 MAY 2008

2948/08 STANDARDS AUSTRALIA LTD v RECORD FUNDS MANAGEMENT LTD & ANOR JUDGMENT 1 HIS HONOUR: This is an application for interlocutory relief that affects the use of lifts in a city building. It has been contested with great vigour by Ms K Richardson of counsel for the plaintiff and Mr C A Moore of counsel for the first defendant. The second defendant was only joined at the heel of the hunt and Mr Webster, solicitor, appears for the second defendant. The first defendant is the landlord of the building, the plaintiff is the tenant of two upper floors of the building and the second defendant, ASX Operations Pty Limited, is the tenant of floors 1 to 8 of the building. 2 In determining the interlocutory application I have followed the course outlined by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, 535 - 536 which I now set out. "As I see it, the position is as follows. Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled: see, eg, Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 216; A v Hayden (No 1) (1984) 59 ALJR 1 at 4-5; 56 ALR 73 at 79. Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg, whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or whether the urgency of the matter renders it impracticable to give proper consideration to the question: see, eg, A v Hayden (No 1) (at 4; 78); Cohen v Peko-Wallsend (1986) 61 ALJR 57 at 59; 68 ALR 394 at 397. If the Court does decide the question of law the uncertainty is to that extent removed.