Ozton Pty Ltd v Cromwell Seven Hills Pty Ltd as trustee for the Cromwell Northpoint Trust [2016] NSWSC 1339

Supreme Court New South Wales

Medium Neutral Citation: Ozton Pty Ltd v Cromwell Seven Hills Pty Ltd as trustee for the Cromwell Northpoint Trust [2016] NSWSC 1339 Hearing dates: 14/09/2016 Date of orders: 15 September 2016 Decision date: 15 September 2016 Jurisdiction: Equity Before: McDougall J Decision: Application for interlocutory injunctive relief dismissed with costs. Catchwords: EQUITY – interlocutory injunction – serious question to be tried – whether contract excludes right to set-off in equity – whether defendant is entitled to call upon the guarantee for non-payment of rent by payment – where plaintiff claims that there is a right to set-off for breach of the covenant of quiet enjoyment

EQUITY – interlocutory injunction – balance of convenience – whether damages are an adequate remedy – whether there is a real risk that defendant cannot meet a claim for damages Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Norman v FEA Plantations Ltd (2011) 195 FCR 97 Oswal v Commonwealth Bank of Australia [2013] WASCA 58 Telvent Australia Pty Ltd v Acciona Infrastructure Australia Pty Ltd [2016] QSC 201 Saipem Australia Pty Ltd v GLNG Operations Pty Ltd (No 2) [2016] 1 Qd R 254 Texts Cited: Derham, S R, The Law of Set-Off, (3rd edition, 2003, Oxford University Press) Derham, S R, Derham on the law of set-off (4th edition, 2010, Oxford University Press) Category: Procedural and other rulings Parties: Ozton Pty Ltd (Plaintiff) Cromwell Seven Hills Pty Ltd as trustee for the Cromwell Northpoint Trust (First Defendant) St George Bank (a division of Westpac Banking Corporation) (Second Defendant) Representation: Counsel: A J Sullivan QC / J S Emmett (Plaintiff) M K Condon SC / P G Sharp (First Defendant) Submitting Appearance (Second Defendant)