Cody v Live Board Holdings Pty Ltd (No 2) [2017] NSWSC 308

Supreme Court New South Wales

Medium Neutral Citation: Cody v Live Board Holdings Pty Ltd (No 2) [2017] NSWSC 308 Hearing dates: 24 and 25 November 2016 Date of orders: 31 March 2017 Decision date: 31 March 2017 Jurisdiction: Equity Before: Robb J Decision: See par 274 below Catchwords: PRACTICE – Further evidence – Application for leave to file further evidence relevant to interlocutory decision – Where further evidence would not change the court's decision even if admitted.

COSTS – Security for costs order sought by cross defendants – Quantum.

PRACTICE – Application to vary substantive interlocutory order – Where it was decided in principle in previous judgment that security for costs should be awarded to cross defendants – Where there was no material change of circumstances or discovery of new material that was not reasonably available at the original hearing.

EQUITABLE REMEDIES – Interlocutory injunction – Where plaintiff claims to be rightful owner of business owned by defendant – Whether interlocutory injunction may be ordered to prevent defendant from engaging in conduct that enhances the value of the business in its own hands but would reduce the value of the business in the plaintiff's hands. Legislation Cited: Supreme Court Act 1970 (NSW) s 66 Uniform Civil Procedure Rules 2005 (NSW) rr 28.2, 42.7, 42.21 Cases Cited: Allstate Life Insurance Co v Australian & New Zealand Banking Group Ltd (No 19) (1995) 134 ALR 187 Australian Broadcasting Corporation v Lenah Game Meets Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82 Blair v Curran (1939) 62 CLR 464 Cody v Live Board Holdings Limited [2014] NSWSC 78 (17 February 2014) Epping Plaza Fresh Fruit & Vegetables Pty Ltd v Bevendale Pty Ltd [1999] 2 VR 191 Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336 at 345-346 Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564 Jazabas Pty Ltd v Haddad [2007] NSWCA 291; (2007) 65 ACSR 276 Live Board Holdings Ltd (administrators appointed) [2014] NSWSC 161 MA Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97 Northam v Favelle Favco Holdings Pty Ltd, unreported, Supreme Court of NSW, 7 March 1995, BC9504276 Pierce Patrick Cody v Live Board Holdings Limited ACN 117801242 [2014] NSWSC 820 (18 June 2014) Re Felan's Fisheries Pty Ltd [2016] NSWSC 1351 Sharjade v Darwinia Estate [2006] NSWSC 708 Withyman v Withyman [2013] NSWCA 10 Category: Procedural and other rulings Parties: Live Board Holdings Ltd (cross claimant) Cody Live Pty Ltd ACN 168 364 403 (first cross defendant) Cody Investments Pty Ltd ACN 100 588 903 (second cross defendant) Brain Beyond Pty Ltd ACN 128 068 082 (third cross defendant) Pierce Patrick Cody (fourth cross defendant) Finola Anne Burke (fifth cross defendant) Representation: Counsel: P Menzies QC/G Preston (cross claimant) B Kremer (first, second, fourth, fifth, sixth cross defendants)