A Whistle & Co (1979) Ltd v Gorham & Anor [1992] QSC 14

·'· .. ! : ·• .:J . • I I ··; ·:( ~· ·: \. / .. ~ .--~ ·- ·- . .. ...... to,•: . ' ··~ TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The l2.w Courts, George Street, BRJSB&?\ffi. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority · of the Director, · State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BYRNE J / No 58 of 1992 ,.---- A. WHISTLE & CO (1979) LIMITED and NEVILLE STEPHEN GORHAM and LORRAINE MOSTYN GORHAM BRISBANE DATE 1.6/1/92 JUDGMENT 1 \ REVISED COPIES ISSUEr' ·. Court .. ~.!iporting .B.I.Jr,eau i Date: 1JJAN'tftf J .... First Plaintiff First Defendants -- 1 of 3 -- 160192 JUDGMENT HIS HONOUR: This is an application for an interlocutory injunction. The application is dismissed. On the construction of the restraint for which the applicant contends that which was agreed is in resp~ct of exothermic 10 10 20 30 carpet dry cleaning. The restraint provision is not easy to construe. Assuming for the purpose of this application that the relevant provision bears the construction for which the applicant contends nevertheless there is no evidence before me that the respondents have engaged in, or propose to engage in, a business involving exothermic carpet dry- cleaning. At the end of the argument as much was conceded, and rightly so, by couns·el for the applicant. The application therefore fails at the threshold for want of proof of an act or threat to do an act in breach of the clause as the applicant would wish it to be construed. Plainly there is no serious question to be tried. Mr Samios has asked for an order for costs 0 30 0 40 40 50 60 on an indemnity basis. It is most unusual for such an order to be made in contests between party and party. Some special circumstance ~st be made out to justify that course. One example of a situation which will justify such an extraordinary order is where the litigation is prosecuted not with the genuine object of seeking the relief claimed but insteadto achieve some ulterior purpose. The material before me does not enable me to be satisfied that that is what has occurred in· this application. Notwithstanding that, there are two considerations which Govt. Printer, Old. 2 0 50 60 -- 2 of 3 -- 160192 JUDGMENT point somewhat in that direction. One is that the application was brought in this Court. As counsel for the applicant has very properly conceded, on the material made available to him, there is no reasonable prospect that 10 the damages claim will be valued at more than the monetary 10 limit of the District Court's jurisdiction. The second is that the application was launched and persisted in without a scintilla of evidence tending to establish an act or threat of an act in contravention of the agreement as the applicant would prefer it to be construed. 20 The circumstances are such that the application for the I \ interlocutory injunction should not have been brought. It had no prospect of success on the evidence adduced. Also 30 that fact ought to have been clearly apparent to the 30 applicant's lawyers. I think that the interests of justice can only be served in this case by exercising the extraordinary jurisdiction to award costs on an indemnity basis. 40 40 There will therefore be an order that the applicant pay the respondent's costs of the application to be taxed if not agreed as between solicitor and own client. 50 There will be a further order that the action be remitted to 50 the District Court at Brisbane. 60 60 Govt. Printer, Old. 3 -- 3 of 3 --