Active Leisure (Sports) Pty Ltd v Sportsman's Australia Ltd [1990] QSCFC 38 [1991] 1 Qd R 301

1 IN THE SUPREME COURT OF QUEENSLAND FULL COURT \ REVILE? COPES ISSUED ; | Court Reporting Bureau S j Dats - _S / 1 / ? D Appeal No. 32 of 1990 BEFORE: Mr. Justice Kneipp Mr. Justice Shepherdson Mr. Justice Cooper BRISBANE, 22 JUNE 1990 10 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter , Court Reporting Bureau.) BETWEEN: 20 ACTIVE LEISURE (SPORTS) PTY . LTD. Applicant/Plaintiff -and- SPORTSMANS AUSTRALIA LIMITED Respondent/Defendah Appeal No. 33 of 1990 t 30 BETWEEN : STEEDEN SPORTS (AUSTRALIA) PTY. LTD. Applicant/Plaintiff -and- SPORTSMANS AUSTRALIA LIMITED Respondent/Defendant 40 JUDGMENT MR. JUSTICE SHEPHERDSON: I will ask Mr. Justice Cooper to deliver the first judgment. MR. JUSTICE COOPER: I would dismiss each appeal and order that in Appeal No. 32 of 1990 the appellant, Active Leisure (Sports) Pty. Ltd. pay the respondent's costs of and incidental to the appeal to be taxed, and further order that in Appeal No. 33 of 1990 the appellant, Steeden Sports (Australia) Pty. Ltd. pay the respondent's costs of and incidental to the appesil 50 60 •— Povt. Printer, Qid. l [1990] QSCFC 38 -- 1 of 37 -- ] 10 to be taxed. I publish my reasons MR. JUSTICE SHEPHERDSON: I agree with the orders propose I publish my reasons. I am authorised by Mr. Justice Kneipp to say that he agrees with the reasons of Mr. Justice Cooper and myself. The orders .'of the Court are as.indicated by Mr. Justice Cooper. a. 10 20 20 30 30 40 40 50 50 60 £**'/1. Printer, Qld. 60 2 -- 2 of 37 -- JN THE SUPREME COURT OF QUEENSLAND Fc 03% ^14'^' FULL COURT Appeal No. 32 of 1990 BETWEEN: ACTIVE LEISURE (SPORTS) PTY LTD a company duly incorporated according to law in Victoria and having its registered office at 1 Tray Forest Drive, Clayton in the State of Victoria. (Plaintiff) Appellant AND: SPORTSMAN'S AUSTRALIA LIMITED a company duly incorporated according to law in Queensland and having its registered office at C/- Touche Ross & Co ., Chartered Accountants , 4th Floor 105 Upton Street, Bundall in the State of Queensland. (Defendant) Respondent Appeal No. 33 of 1990 BETWEEN: STEEDEN SPORTS (AUSTRALIA) PTY LTD a company duly incorporated according to law in Victoria and having its registered office at 1 Tray Forest Drive, Clayton in the State of Victoria ( Plaintiff ) Appellant AND: SPORTSMAN'S AUSTRALIA LIMITED a company duly incorporated according to law in Queensland and having its registered office at C/- Touche Ross & Co., Chartered Accountants, 4th Floor, 105 Upton Street, Bundall in the State of Queensland. ( Defendant) Respondant KNEIPP J. SHEPHERDSON J. COOPER J. Reasons for Judgment delivered by Shepherdson J. and Cooper J. on the 22nd June 1990. both concurring. Kneipp J concurring with both those reasons and the orders. "APPEAL DISMISSED, APPELLANT PAY THE RESPONDENT'S COSTS OF AND INCIDENTAL TO THE APPEAL TO BE TAXED. -- 3 of 37 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 32 of 1990 Before the Full Court Mr. Justice Kneipp Mr. Justice Shepherdson Mr. Justice Cooper BETWEEN: ACTIVE LEISURE (SPORTS) PTY. LTD. (Plaintiff) Appellant AND: SPORTSMAN'S AUSTRALIA LIMITED (Defendant) Respondent No. 33 of 1990 BETWEEN: STEEDEN SPORTS (AUSTRALIA) PTY. LTD, (Plaintiff) Appellant AND: SPORTSMAN'S AUSTRALIA LIMITED (Defendant) Respondent JUDGMENT - SHEPHERDSON J. Delivered the 22nd day of June, 1990. CATCHWORDS INJUNCTIONS - interlocutory prohibitive and mandatory injunctions - principles discussed. Counsel: Mr. Myers and Mr. Baker for the Appellant Mr. Bain for the Respondent Solicitors: Messrs. Thynne & Macartney as T/A for McDonald Balanda & Chester for the Appellant Messrs. Henderson Trout for the Respondent. Hearing Dates: 24th and 28th May, 1990 -- 4 of 37 -- IN THE SUPREME COURT Of n OF QUEENSLAND FULL COURT No. 32 of 1990 BETWEEN: ACTIVE LEISURE (SPORTS) PTY. LTD. (Plaintiff) Appellant AND: SPORTSMAN ' S AUSTRALIA LIMITED (Defendant) Respondent No. 33 of 1990 BETWEEN: STEEDEN SPORTS (AUSTRALIA) PTY. LTD. (Plaintiff) Appellant AND: SPORTSMAN'S AUSTRALIA LIMITED (Defendant) Respondent JUDGMENT - SHEPHERDSON J. Delivered the 22nd day of June, 1990. I have read the reasons for judgment prepared by Cooper J. and I agree that the appeals should be dismissed for the reasons he gives . I should however like to comment on the following points which he makes :- 1 . On an application for an interlocutory injunction there are in most cases two questions - the first is whether the applicant plaintiff has shown that there is a serious question to be tried and the second, which is considered only if the first question is answered "yes" - does the balance of convenience favour the grant of the injunction? The High Court of Australia in Murphy v. Lush (1986) 60 A.L.J.R. 523 preferred "triable issue" as the -- 5 of 37 -- 2 first test. This Court in Queensland Industrial Steel Pty. Ltd, v. Jensen (19 87) 2 Qd.R. 572 applied the above principles taking the view that there was no significant difference between "serious question to be tried" and "triable issue". Prior to Murphy v. Lush there had been a number of judgments by single justices of the High Court of Australia in which those justices had held that the plaintiff must establish a serious question to be tried in preference to the "prima facie case" t/jt adopted earlier by the High Court in Beecham Group Ltd, v. Bristol Laboratories Pty. Ltd. (1968) 118 C.L.R. 618 at 622. I should mention the decision of Mason A.C.J. (as he then was), in Castlemaine Toohevs Ltd, v. South Australia (1986) 161 C.L.R. 148 which decision was handed down on 3rd October, 1986 and after Murphy v. Lush to which case his Honour was referred in argument. At p. 153. Mason A.C.J. said:- "The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction." His Honour then went on to refer to certain authorities and expressed his opinion that the "serious question to be tried" test was the correct test in the majority of cases. He therefore joined the list of High Court justices in preferring this test and there must now be no doubt that the "serious question to be tried" test holds the floor in Australia. -- 6 of 37 -- 3 The extract from his Honour's judgment which I have quoted above states that the applicant plaintiff must show also that he will suffer irreparable injury for which damages will not be an adequate compensation when the injunction is granted. This apparently extends the requirements of Murphy v. Lush . This statement, in my respectful view, restates Halsbury's Laws of England (4th Ed.) Vol. 24 at para. 955 where the authors say:- "The plaintj-.-f must also as a rule be able to show that an injunction until the hearing is necessary to protect him against irreparable injury; mere convenience is not enough" . I note that the authors of Halsbury (Vol. 24, para. 926) say:- "By 'irreparable injury' is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired." I note also that in Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd, (supra) the High Court at p. 623 said:- "... in a particular case it may be that although the plaintiff has shown a probability of success other considerations make it unjust to grant an injunction, especially if another form of interlocutory relief is possible. The second inquiry is directed to this aspect of the matter. It is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted. It is of course to be remembered that if an injunction be granted it will be upon terms of the plaintiff submitting, in the event of his ultimately failing, to such order as to damages as the Court may make in order to compensate the defendant for any injury caused by the injunction It seems to me that the second matter adverted to by Mason A.C.J. will in many cases be intertwined with the third matter viz. answering the balance of convenience question. Consideration of the second matter raised by his Honour will in most cases determine whether the injunction is granted. I assume that in Castlemaine Toohevs Mason A.C.J. was speaking of -- 7 of 37 -- 4 the Court exercising its auxiliary jurisdiction in equity. Isaacs and Rich JJ. in their joint judgment in Heaveuer v. Loomes (1924) 34 C.L.R. 306 at p. 325 said:- "There is no general rule that 'irreparable damage' is essential to sustain an interlocutory injunction." Their Honours appear to have been there referring to an injunction sought in the Court's exclusive equitable jurisdiction (See also Meagher, Gummow & Lehane "Equity Doctrines and Remedies", 2nd Ed. at paras. 2167 et. seq.). Although Mason A.C.J., in the above quoted extract from the Castlemaine Toohevs case, stated three requirements for grant of an interlocutory injunction, I do not believe that he was attempting to add any gloss on what had been decided in Murphy v. Lush - rather was he reminding us of the general requirement stated by the authors of Halsbury at para. 955 in the extract which I quoted earlier. 2. When the application is for a mandatory interlocutory injunction, the plaintiff must show a "high degree of assurance” in his chances of establishing at trial his right in aid of which the injunctive relief• is sought. Cooper J. has discussed a number of the relevant cases and I do not believe that this Court should depart from the view established in Shepherd Homes Ltd, v. Sandham (1971) 1 Ch. 340 later approved by the Court of Appeal in Locabail Finance Ltd, v. Agroexport (1986) 1 W.L.R. 657 and by Australian Judges including Gibbs C.J. in Queensland v. Australian Telecommunications Commission (1985) 59 A.L.R. 243. -- 8 of 37 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Before the Full Court Mr. Justice Kneipp Mr. Justice Shepherdson Mr. Justice Cooper BETWEEN : AND: No. 32 of 1990 ACTIVE LEISURE (SPORTS) PTY. LTD. a company duly incorporated according to law in Victoria and having its registered office at 1 Tray Forest Drive, Clayton in the State of Victoria (Plaintiff) Appellant SPORTSMAN'S AUSTRALIA LIMITED a company duly incorporated according to law in Queensland and having its registered office at c/~ Touche Ross & Co., Chartered Accountants, 4th Floor, 105 Upton Street, Bundall in the State of Queensland (Defendant) Respondent BETWEEN : AND: No. 33 of 1990 STEEDEN SPORTS (AUSTRALIA) PTY. LTD, a company duly incorporated according to law in Victoria and having its registered office at 1 Tray Forest Drive, Clayton in the State of Victoria (Plaintiff) Appellant SPORTSMAN'S AUSTRALIA LIMITED a company duly incorporated according to law in Queensland and having its registered office at c/- Touche Ross & Co., Chartered Accountants, 4th Floor, 105 Upton Street, Bundall in the State of Queensland (Defendant) Respondent JUDGMENT - COOPER J. Delivered the 22nd day of June, 1990. Counsel : Solicitors : R. Myers and P. Baker for appellant R.G. Bain for respondent Thynne & Macartney as t/a for McDonald Balanda & Chesters for appellant Henderson Trout for respondent Hearing dates: 24 and 28 May, 1990. -- 9 of 37 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 32 of 1990 BETWEEN : ACTIVE LEISURE (SPORTS) PTY. LTD. a company duly incorporated according to law in Victoria and having its registered office at 1 Tray Forest Drive, Clayton in the State of Victoria (Plaintiff) Appellant AND: SPORTSMAN 7 S AUSTRALIA LIMITED a company duly incorporated according to law in Queensland and having its registered office at cl- Touche Ross & Co., Chartered Accountants, 4th Floor, 105 Upton Street, Bundall in the State of Queensland (Defendant) Respondent No. 33 of 1990 BETWEEN : STEEDEN SPORTS (AUSTRALIA) PTY. LTD. a company duly incorporated according to law in Victoria and having its registered office at 1 Tray Forest Drive, Clayton in the State of Victoria (Plaintiff) Appellant AND: SPORTSMAN'S AUSTRALIA LIMITED a company duly incorporated according to law in Queensland and having its registered office at cf- Touche Ross & Co., Chartered Accountants, 4th Floor, 105 Upton Street, Bundall in the State of Queensland (Defendant) Respondent JUDGMENT - COOPER J. Delivered the 22nd day of June, 1990. -- 10 of 37 -- 2 These two appeals were heard together, the issues in each being the same . The appellants appear to be associated companies each operating out of the same address and using in part documentation in common form. The appellant in each appeal is a supplier of sports equipment. They have supplied the respondent with goods for approximately three years to December 1989. Until October 1989 the respondent had paid for goods supplied within the 30 day credit terms. The respondent has failed to pay for goods supplied under invoices for the months October, November and December 1989. The appellants allege that these invoices had attached to them a printed form of property retention clause. This clause, it was submitted, formed part of each contract of sale and had the effect of retaining property in the goods in each appellant as seller until all money owing by the respondent on any account to the respective seller had been paid. The respondent denies knowledge of the relevant clause and contends that property in the goods passed to it upon delivery. The respondent is presently in receivership and as at 26 March, 1990 its business continued to be carried on by a receiver and manager in the hope of ultimately selling the business as a going concern for the benefit of the secured creditors, the unsecured creditors and the respondent. However, the respondent does concede that there is a serious question to be tried as to whether or not the property retention clauses became part of the relevant contracts of sale, and, if they did, whether the clauses on their proper construction operated to retain ownership of the goods in the appellants or -- 11 of 37 -- 3 to prevent sale of the goods by the respondent in the circumstances which have occurred. On 26 March 1990, His Honour Judge Skoien in the District Court at Brisbane discharged in each matter a consent injunction granted by His Honour Judge Miller Q.C. restraining the respondent from dealing with goods supplied by the respective appellants. The form of Judge Miller Q.C.'s order in the Leisure Australia matter was :- "1 . That the Defendant SPORTSMANS AUSTRALIA LIMITED by itself, its agents, servants, Receiver and Manager and every one of them be restrained and an injunction is hereby granted restraining the Defendant, by itself, its agents, servants, Receiver and Manager and everyone of them from permitting or causing any of the,goods supplied by the Plaintiff to the Defendant being all Diadora footwear and apparel, all Wilson Golf Clubs and all Footjoy golf shoes being in the Defendant's possession from being offered for sale, sold, distributed or otherwise disposed of at any of the Defendant's stores, warehouses or distribution centres in the State of Queensland until the close of retail trading on Monday the 26th March, 1990. 2. That the Plaintiff be entitled to immediate access to the Defendant's stores, warehouses or distributions centres in the State of Queensland such that the Plaintiff can quantify the goods supplied by the Plaintiff to the Defendant being all Diadora footwear and apparel, all Wilson tennis racquets, all Wilson golf clubs and all Footjoy golf shoes in the Defendant's possession." The form of order in the other matter was relevantly in identical terms; the differences being as to the description of the goods . Before His Honour Judge Skoien the respondent gave undertakings to the court to maintain a separate account to retain money recovered from the sale of each appellant's goods and to pay into each account one-half of the money realised from -- 12 of 37 -- 4 the sale of the respective appellant's goods. The order made by His Honour Judge Skoien in the Leisure Australia matter was:- " UPON HEARING Mr Doyle of Counsel for SPORTSMAN'S AUSTRALIA LIMITED and upon the usual undertaking as to damages being given by the Plaintiff and upon the undertaking of DESMOND WILLIAM KNIGHT and DAVID LEWIS CLOUT . the Receivers and Managers of the Defendant, SPORTSMAN'S AUSTRALIA LIMITED to pay up to the sum of ONE HUNDRED AND FIFTY SIX THOUSAND THREE HUNDRED AND NINETY THREE DOLLARS ($156,393.00), half the proceeds of each sale of goods supplied to SPORTSMAN'S AUSTRALIA LIMITED by the Plaintiff, ACTIVE LEISURE (SPORTS) PTY LTD into a separate Trust Account in the name of the Receivers and Managers and not to disperse any sum therefrom until further order and upon the further undertaking of the said DESMOND WILLIAM KNIGHT and DAVID LEWIS CLOUT to keep the following records of any such sale and to permit the Applicant upon reasonable prior written notice from the Applicant to the Respondents to inspect such records at intervals of not less than 7 days, namely a computer maintained audit listing of all sales as recorded at the point of sale IT IS ORDERED THAT:- (a) the injunction granted by Judge Miller on the 16th day of March, 1990 be discharged; and" The order in the other matter was relevantly in identical terms, save for the description of the parties and the monetary limitation on the fund. The appellant has appealed against the refusal of His Honour Judge Skoien to grant interlocutory injunctions in terms of those claimed in the notice of appeal to this Court. In this Court the appellant, Leisure Australia, seeks the following orders :- "(1) That the Defendant SPORTSMANS WAREHOUSE deliver up to the Applicant/Plaintiff all goods supplied by the Applicant/Plaintiff to the Defendant being all Diadora footwear and apparel, all Wilson tennis racquets, all Wilson golf clubs and all Footjoy golf clubs being in the Defendant's possession until the date of trial; or in the alternative -- 13 of 37 -- 5 (2) That the Defendant SPORTSMAMS AUSTRALIA LIMITED by itself, its agents, servants or Receiver and every one of them be restrained and an injunction is hereby granted restraining the Defendant, by itself, its agents, servants or Receiver and Manager and everyone of them from permitting or causing any of the goods supplied by the Applicant/Plaintiff to the Defendant being all Diadora footwear and apparel, all Wilson tennis racquets, all Wilson golf clubs and all Footjoy golf shoes in the Defendant's possession from being offered for sale, sold, distributed or otherwise disposed of at any of the Defendant's stores, warehouses or distribution warehouses in the State of Queensland until the date of trial (3) That all proceeds of sale of the Plaintiffs goods by the Defendant being all Diadora footwear and apparel, all Wilson tennis racquets, all Wilson golf clubs and all Footjoy golf shoes since the Order of His Honour Judge Skoien on the 26th March, 1990 be held on trust by the Receiver for the Plaintiff." The orders sought by the appellant Steeden Sports Limited, is for all practical purposes in identical form. The relevant retention of property clause relied upon by each appellant is in the following terms :- "a) The ownership of the goods ('the goods') delivered by Active Leisure (Sports) Pty. Ltd. ( 'Active Leisure' ) to the customer is only transferred to the customer when he has paid all sums owing to Active Leisure whether under this or any other contract and until such time Active Leisure has a right to call for or recover the goods (for which purpose Active Leisure may enter the customer's premises by its servants or agents) and the customer is under an obligation to deliver up the goods to Active Leisure. b) Where Active Leisure has not been paid pursuant to this agreement or any other terms of payment in force between the parties and Active Leisure delivers the goods to the customer, then, until disposed of by the customer in accordance with this provision, the customer agrees with Active Leisure to keep the goods in a fiduciary capacity for Active Leisure and the customer agrees with Active Leisure to store the goods in a manner that clearly shows the ownership of Active Leisure. -- 14 of 37 -- 6 c) Notwithstanding the provisions of the two preceding clauses, the customer may sell the goods to a third party in the course of business and deliver them to that third party provided that :- (i) where the customer is paid by the third party, and Active Leisure has not been paid by the customer for the goods pursuant to this agreement or any other terms of payment in force between the parties, the customer holds the whole of the proceeds of sale on trust for Active Leisure, and (ii) where the customer is not paid by that third party, and Active Leisure has not been paid by the customer for the goods pursuant to this agreement or any other terms of payment in force between the parties, the customer agrees, at the option of Active Leisure, to assign his claim against the party to Active Leisure upon Active Leisure giving the customer notice in writing to that effect . d) For the purposes of giving effect to perfecting the agreement specified in paragraph (c)(ii), the customer will irrevocably appoint Active Leisure as its attorney. e) The parties agree that these provisions apply notwithstanding any agreement, whether subject to this agreement or not, between the parties under which Active Leisure gives the customer credit." It is clear from the affidavits of George Elie Fidler filed on behalf of the respondent in each action that, notwithstanding the terms of the retention of property clause, the goods supplied under the October, November and December 1989 invoices have been mixed with other goods supplied prior to that time by the appellants and now cannot be identified as goods supplied under the relevant invoices. The affidavit of Gregory Robert McClure in the Leisure Australia action goes no further than saying that some unspecified part of the goods supplied by that appellant could be identified because of model or style changes -- 15 of 37 -- 7 which were not in circulation prior to October 1989. The quantity, value or identifying features of these goods is not set out in the affidavit material which was before His Honour Judge Skoien or this Court. Mr. McClure deposes to the fact that he has entered the various locations and inspected all goods there pursuant to the order of Judge Miller Q.C. It is not without significance that Mr. McClure makes no attempt to quantify or identify by detailed schedule the specific goods on the premises in which goods each appellant claims ownership. Goods supplied by the appellants prior to October 1989 are not subject to any retention of property condition. They are the property of the respondent and have been paid for. When one looks at the form of the injunctive relief sought, it is clear that the terms of the proposed order are too wide. The orders sought merely describe the brand name of goods supplied by each appellant to the respondent and in terms cover all goods which have ever been supplied by the appellants to the respondent and which remain in the possession of the respondent. Each form of injunction covers goods which could not conceivably be said to be subject to a claim of ownership by the relevant appellant. Neither appellant can formulate a restraint in terms that can be complied with by the respondent on the material which was before the learned District Court judge and which is now before this Court. Mr. Myers of counsel for the appellants conceded before this Court that the appellants themselves, for all practical purposes, cannot identify the goods supplied to the respondent under invoices of October, November and December 1989 and still held by the respondent . -- 16 of 37 -- 8 Injunctions must be framed in precise language so that the person enjoined knows exactly what is prohibited by the injunction and what conduct is permissible (see Morris v. Redland Bricks Ltd. [1970] A.C. 652 H.L. at 666-7). The court will not make injunctive orders if they cannot be complied with and their making would lead inevitably to their breach (see H.L. Sleigh Ltd, v. Blight [1969] V.R. 931 at 934 and Locabail Finance Ltd, v. Agroexport [1986] 1 W.L.R. 657 C.A. at 664). Because the goods have been mixed and cannot, for the main, be physically identified as having been supplied under the October, November or December 1989 invoices, and because the proceeds of sale of goods cannot be identified as relating to any sale under a particular monthly invoice, the respondent must inevitably breach any order made which states the prohibition generally in terms of goods supplied under invoice of October, November or December 1989 or the proceeds of sale arising from the sale of such goods . To avoid breaching any order the respondent would have to cease trading in all goods supplied by the appellants at any time. This would deny the respondent the ability to trade in property which is clearly its own and would render a great hardship on it. No complaint can be made of the respondent mixing the goods, if on the trial of the action, it is successful in its claim that it did not know of the alleged contractual term and that the term formed no part of the relevant contracts of sale. For this reason alone I would refuse the injunctions sought, even if the appellants had established any demonstrable error in the reasoning of the -- 17 of 37 -- 9 learned District Court judge which, in my view, they failed to do. The present appeals are from the exercise of a judicial discretion on a matter of practice and procedure. The High Court of Australia has recently reaffirmed the principles applicable to such an appeal. In Norbis v. Norbis (1985-6) 161 C.L.R. 513, Mason and Deane JJ. said, at pp. 518-519:- "The principles enunciated in House v. The King (1936) 55 C.L.R. 499 were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal." (See also Wilson and Dawson JJ. at p. 535 to like effect.) The same principles have been reaffirmed in this Court in recent times in Queensland Industrial Steel Pty. Ltd, v. Jensen [1987] 2 Qd.R. 572 at 579-580. The grounds of appeal are identical in each appeal. They are: - " (1 ) That the Learned Judge has misdirected himself as to the basis upon which an interlocutory injunction is granted in that the Learned Judge made a finding on the balance of convenience without taking into account :- (a) That the Defendant could not give an undertaking that the Plaintiff could be -- 18 of 37 -- 10 compensated by way of damages if successful at the trial of the matter. (b) That the Defendant would be adequately compensated by the Plaintiff's undertaking as to damages if the Defendant were successful at trial of the matter. ( c ) That the Learned Judge was only required to consider the balance of convenience if a proper undertaking as to damages could not be given. 2. That the Learned Judge was in error in finding that the balance of convenience lay in the Order as set out above in that :- (a) The Learned Judge did not give sufficient weight to the fact that the Plaintiff claimed a reservation of title in their goods and therein there was a risk that the goods would be disposed of before the matter came to trial. (b) The Learned Judge did not give sufficient weight to the fact that evidence was not forthcoming from the Defendant to show that half of the proceeds of sale placed into a separate Trust Account would be equal to or greater than the value of the goods supplied by the Defendant to the Plaintiff . (c) That the Learned Judge did not give sufficient weight to the fact if his decision was in error that the least risk of injustice lay in delivering the goods up to the Plaintiff. 3. The Learned Judge in permitting the Defendant to sell the subject goods took no cognizance of the Plaintiffs prima facie rights as owner." The learned District Court judge gave no transcribed reasons. He was not asked to give reasons by any party . However, he did make observations as to why he would not grant the injunctions at the time of his refusal and the subject-matter of these observations is recorded in the -- 19 of 37 -- affidavit of Mr. Hickey, solicitor, which has been filed in the appeals. Additionally, the submissions on matters of principle and the balance of convenience which have been made in this Court were the same submissions as were made before the learned District Court judge. The appellants placed great stress on the fact that each was a solvent company and before the learned District Court judge offered an undertaking as to damages which adequately protected the interests of the respondent if the respondent should ultimately succeed on the trial of the actions. It was submitted that as an arguable triable case had been conceded, and because the undertakings were offered, no question of the balance of convenience properly arose for consideration by the learned District Court judge; to the extent that His Honour did consider the balance of convenience as indeed he did, it was said that he erred in law. In support of this submission the appellants rely upon a decision of the Court of Appeal in Fellowes & Son v. Fisher [1976] 1 Q.B. 122 at p. 137. There, in the judgment of Browne L.J. are to be found extracts from the opinion of Lord Diplock in American Cvanamid v. Ethicon Ltd. [1975] A.C. 396 H.L. The extracts form a series of numbered principles. In relation to the question of undertakings, Lord Diplock said, at p. 408, in American Cvanamid "If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction. It is where there is doubt as to the adequacy of the respective remedies in damages available to either -- 20 of 37 -- 12 party or to both, that the question of balance of convenience arises." This is one of the extracts reproduced in Fellowes & Son v. Fisher at p. 137. Browne L.J. dealt with the extracts in this way ( at p. 139):- "Further, the principles which he stated at pp. 408-409 seem to have in themselves some elements of flexibility. The principle I have numbered 1. contains the word 'normally': p. 408. Principle 2 states that there would be 'no reason upon this ground to refuse an interlocutory injunction': which seems to imply that there may be other grounds. On p. 409 the extent to which either party cannot be compensated in damages is described only as 'a significant factor.' Lord Diplock, at pp. 408 and 409 recognises the possible existence of relevant (but unspecified) factors other than those he has stated. In his third principle Lord Diplock seems to be saying that the 'balance of convenience' only arises if the first and second principles fail to provide a solution: but he had said before stating the first principle that the court 'should go on to consider ... the balance of convenience . . . ' : which seems to imply that the first and second principles are factors to be taken into account in assessing the balance of convenience rather than self-contained rules." Sir John Pennycuick made a similar observation (at pp. 140-141):- "Lord Diplock's speech must be read in full. Very summarily, unless I have misunderstood it, he laid down the following procedure as appropriate in principle: (1) provided that the court is satisfied that there is a serious question to be tried, there is no rule that the party seeking an interlocutory injunction must show a prima facie case. (2) The court must consider whether the balance of convenience lies in favour of granting or refusing interlocutory relief. (3) 'As to that' the court should first consider whether, if the plaintiff succeeds, he would be adequately compensated by damages for the loss sustained between the application and the trial, in which case no interlocutory injunction should normally be granted. (4) If damages would not provide an adequate remedy the court should then consider whether if the plaintiff fails the defendant would be adequately compensated under the plaintiff's undertaking in damages, in which case there would be no reason upon this ground to refuse an interlocutory injunction. (5) Then one goes on to consider all -- 21 of 37 -- 13 other matters relevant to the balance of convenience, an important factor in the balance, should this otherwise be even, being preservation of the status quo. By the expression 'status quo' I understand to be meant the position prevailing when the defendant embarked upon the activity sought to be restrained. Different considerations might apply if the plaintiff delays unduly his application for relief. (6) Finally, and apparently only when the balance still appears even: 'it may not be improper to take into account in tipping the balance the relative strength of each party's case as revealed by the affidavit evidence' (p. 409)." In the result, the Court of Appeal refused to grant the interlocutory injunction, notwithstanding the availability of a suitable undertaking on the part of the plaintiff. The Court of Appeal in Fellowes & Son v. Fisher treated such an undertaking as one matter, albeit an important one, in the totality of the balance of convenience. The decision in Fellowes & Son v. Fisher does not assist the appellants and in fact is contrary to the submission which they make. The analysis in Fellowes & Son v. Fisher was correct as can be demonstrated by a subsequent enunciation of the relevant test by Lord Diplock in N.W.L. Ltd, v. Woods [1979] 1 W.L.R. 1294. There His Lordship said (at p. 1306):- "My Lords, when properly understood, there is in my view nothing in the decision of this House in American Cvanamid Co. v. Ethicon Ltd. [1975] A.C. 396 to suggest that in considering whether or not to grant an interlocutory injunction the judge ought not to give full weight to all the practical realities of the situation to which the injunction will apply. American Cvanamid Co. v. Ethicon Ltd. , which enjoins the iudcre upon an application for an interlocutory injunction to direct his attention to the balance of convenience as soon as he has satisfied himself that there is a serious question to be tried , was not dealing with a case in which the grant or refusal of an injunction at that stage would, in effect, dispose of the action finally in favour of whichever party was successful in the application, because there would be -- 22 of 37 -- 14 nothing left on which it was in the unsuccessful party's interest to proceed to trial." (Emphasis added.) In Australia there are only two issues that arise on an application for an interlocutory injunction. The first is whether the plaintiff has made out on the material a serious question to be tried. The second is, if such a case has been made out, where the balance of convenience lies. This position is amply supported in my view by the decision of the High Court in Murphy v. Lush (1986) 60 A.L.J.R. 523 and in this Court in Queensland Industrial Steel (supra) per Andrews C.J. with whom Ryan J. agreed at p. 575 and per Thomas J. at p. 581. The adequacy of an award of damages, or the availability or sufficiency of an undertaking on the part of a plaintiff, are two important matters to be considered in the balancing process whereby the court is required to determine where the greater convenience lies. In some cases, depending upon the particular facts of that case, they may ultimately as a matter of importance and weight be determinative of the matter. However, they are to be considered as part of the totality of determining the balance of convenience and not as a step anterior thereto. The appellants also argued that the learned District Court judge failed to take account of the risk of irreparable injury to the appellants if injunctions were not granted and the appellants succeeded on the trial. It was submitted on behalf of the appellants, that the risk of irreparable injury as an overriding test as to whether an interlocutory injunction should be granted, was enunciated by Hoffman J. in Films Rover Ltd, v. Cannon Film Sales Ltd. [1987] 1 W.L.R. 670 at 680-682 and -- 23 of 37 -- 15 applied by Gummow J. in Businessworld Computers Ptv . Ltd, v. Australian Telecommunications Commission (1988) 82 A.L.R. 499 at 502-3. Both decisions were first instance decisions. Both concerned mandatory interlocutory injunctions where more often than not the interlocutory injunction finally determines the action. The difference of view of Hoffman J. and Gummow J. from the observation of Megarry J. in Shepherd Homes Ltd . v. Sandham [1971] 1 Ch. 340 at 351 as to the need for the court to be satisfied to a high level of assurance of the plaintiff's claim before granting a mandatory interlocutory injunction, which observations were adopted and applied by Gibbs C.J. sitting alone in Queensland v. Australian Telecommunications Commission (1985) 59 A.L.R. 243, is not relevant to paras. 1 and 2 of the relief claimed. These paragraphs are not concerned with applications for mandatory interlocutory injunctions . They are concerned with applications for interlocutory injunctions to preserve property pending a trial to determine competing rights to that property. The respective observations of Hoffman and Gummow JJ. which relate generally to interlocutory injunctions, and seek to apply to applications for such orders a universal test formulated in terms of risk of irreparable damage as a matter independent of the balance of convenience, are inconsistent with the principles enunciated by this Court in Queensland Industrial Steel (supra). There Andrews C.J. dealt specifically with the question of risk of irreparable damage. At pp. 575-576 His Honour said:- "Some reliance was had upon a statement in N.W.L. Ltd, v . Woods [1979] 1 W.L.R. 1294, 1306 by Lord Diplock, where he highlighted the relevance in considering the balance of convenience of the fact that grant or -- 24 of 37 -- 16 refusal of an interlocutory injunction would in effect dispose of the action finally in favour of whichever party was successful in the application because there would be nothing left on which it was in the unsuccessful party's interest to proceed to trial. Of course, the facts in that case were quite different from those here but the statement is nonetheless apposite. Further at 1306 the learned Law Lord said that in assessing whether what is compendiously called the balance of convenience lies in granting or refusing interlocutory injunctions in actions between parties of undoubted solvency, the judge is engaged in weighing the respective risks that injustice may result from his deciding one way rather than the other at a stage when the evidence is incomplete. He referred to the risk that if an interlocutory injunction is refused but the plaintiff succeeds at the trial he may, in the meantime, have suffered harm and inconvenience for which an award of money can provide no adequate recompense and on the other hand the risk that if the application is granted and the plaintiff ultimately fails at the trial the defendant may suffer harm and inconvenience similarly irrecompensable; that, in effect, the question is to see whether the nature and degree of harm and inconvenience likely to be sustained in these two events by the defendant and the plaintiff respectively from the grant or refusal of an injunction are sufficiently disproportionate to bring down by themselves the balance on one side or the other." Importantly, Andrews C.J. did not dissent from the statement of Lord Diplock in N.W.L. at 1306 that the risk of irreparable harm is considered as part of the balance of convenience in cases where "the grant or refusal of an interlocutory injunction would in effect dispose of the action finally in favour of whichever party was successful in the application", which is more often than not the case of an interlocutory mandatory injunction. Moreover, Andrews C.J. applied those observations to the case before the court which was an application for an interlocutory prohibitory injunction to restrain a breach of covenant. In His Honour's view the approach of the court to the question of irreparable injury, -- 25 of 37 -- which His Honour outlined, was of general application for interlocutory injunctions of whatever nature. In my view the risk of irreparable injury to a party in the event of the court exercising a discretion to grant or refuse an application for interlocutory injunction is part of the determination of the balance of convenience, and it may in some cases be an important part of it, but it is not a matter either determinative of balance of convenience, or a matter to be determined outside the balancing process, as an independent consideration determinative of the exercise of the discretion. There is nothing in the material to suggest that the learned District Court judge did not consider this risk as part of the balancing process. His Honour's observations as to the adequacy of the undertakings of the respondent and the desirability that the respondent continue to trade shows that he took these matters into account. The claim in para. 3 of the relief claimed may be categorised as a mandatory injunction . It directs the respondent to perform the obligation contained in para, (c) of the retention of property clause. That is, to hold the respective proceeds of sale for sales occurring since the order of the learned District Court judge in trust for each appellant. It therefore becomes necessary to consider whether the formulation of Hoffman J. in Films Rover correctly states the principle as to the grant of mandatory interlocutory injunctions. His Honour said (at p. 681):- "If it appears to the court that, exceptionally the case is one which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it even though the -- 26 of 37 -- 18 court does not feel a 'high degree of assurance' about the plaintiff's chances of establishing his right, there cannot be any rational basis for withholding the injunction." This statement is to be contrasted with the formulation by Megarry J. in Shepherd Homes Ltd, v. Sandham [1971] 1 Ch. 340 at 351 : - "... on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction." The decision in Shepherd Homes was cited by the authors of Halsbury's Laws of England, 4th ed., vol. 24, para. 948, as authority for the following statement regarding the grant of a mandatory injunction on an interlocutory application "A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can easily be remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application." Both the passage of Megarry J., which I have set out above, and the statement in Halsbury, have been considered and approved by the Court of Appeal in Locabail Finance Ltd, v. Agroexport (supra) at 663-664 as a correct statement of the position and are to be applied notwithstanding the decision in American Cyanamid . The same passage from the judgment of Megarry J. and the same formulation in Halsbury were cited and applied by -- 27 of 37 -- 19 Gibbs C.J. in Queensland v. Australian Telecommunications Commission (supra). The decisions in Shepherd Homes and Queensland v. Australian Telecommunications Commission have both been cited and followed by single justices in this country in Australian National Airlines v. Commonwealth of Australia (1986) 66 A.L.R. 545 at 552 and Network Foods International Ptv . Ltd, v. Cadbury Schweppes Pty. Ltd. (1988) 83 A.L.R. 134 at 140. In this Court in Gillespie v. Whiteoak [1989] 1 Qd.R. 284 at 288-9, Carter J. preferred "the more traditional test" of a high degree of assurance, citing both Gibbs C.J. and Megarry J.'s approach in preference to the approach of Hoffman J. in Films Rover . The reasoning behind the "traditional test" is that where the mandatory interlocutory injunction will, or may, have the effect of finally determining the matter, a defendant ought not to be denied his prima facie right to a full trial if he raises on the material a triable issue. The analogy with an application for summary judgment has been drawn by the Court of Appeal in Cayne v. Global Natural Resources pic [1984] 1 All E.R. 225 at 236 to illustrate the point that where the defendant would be granted unconditional leave to defend, that right is not to be lightly taken away by a summary determination on an application for a mandatory interlocutory injunction. It therefore becomes necessary to make some assessment of the strength of an applicant's case. In Cayne , May L.J. said at p. 238:- "It may well be that it is the same ultimate consideration which the court has in mind, namely the question whether it is likely to do an injustice. Where a plaintiff brings an action for an injunction, I think that it is, in general, an injustice to grant one at an interlocutory stage if this effectively -- 28 of 37 -- 20 precludes a defendant from the opportunity of having his rights determined in a full trial. There may be cases where the plaintiff's evidence is so strong that to refuse an injunction and to allow the case to go through to trial would be an unnecessary waste of time and expense and indeed do an overwhelming injustice to the plaintiff. But those cases would, in my judgment, be exceptional. In general, as I say, where a plaintiff brings an action and in it seeks an interlocutory injunction on the basis that the defendant has breached the former's rights, then justice requires that that defendant should be entitled to dispute the plaintiff's claim at a trial, and if the grant of the injunction would preclude this then it should not be granted on an interlocutory basis." See also Eveleigh L.J. at 233 and Kerr L.J. at 236. The same approach as taken by the Court of Appeal in Cayne was taken by Brennan J. in Brayson Motors Pty. Ltd, v. Commissioner of Taxation (1983) 57 A.L.J.R. 288 at 292 where His Honour said:- "The rights which the Commissioner seeks to assert are the rights to recover by s . 38 procedure a proportion of the alleged tax liability of the plaintiff. To refuse injunctive relief, in practical terms, spells the end of the plaintiff's business. To grant injunctive relief, in practical terms, diminishes the prospect of recovery by the Commissioner. In this situation, the strength of the case made by the plaintiff on this application is the chief factor for consideration, for that determines which claim to legal rights is more likely to be unjustly defeated - either by refusing or by granting the injunction, as the case may be. In my view, the plaintiff has failed to show a case of sufficient strength to warrant intervention. I therefore dismiss the application." See also McLelland J. in Kolback Securities Ltd, v. Epoch Mining N.L. (1987) 8 N.S.W.L.R. 533 at 536 and the cases there cited. To my mind it is clear that the approach of the Court of Appeal in Cayne and Brennan J. in Brayson Motors is to seek to find the "high degree of assurance" referred to by Megarry J. in -- 29 of 37 -- 21 Shepherd Homes although such a formulation is not used. It follows, in my view, that the weight of English and Australian authority is against the diluted test enunciated by Hoffman J. in Films Rover and that the reasoning underlying a higher standard is correct in principle. I am not satisfied that the appellants have made out a case to the high degree of assurance necessary to obtain the relief claimed in para. 3 in that I am far from satisfied that the retention of property clause ever became a contractual term. The next matter raised by the appellants was the submission that the respondent was not in a position to give an undertaking to the court sufficient to protect the interests of the appellants were they to succeed in the actions. The fact that the respondent was in receivership and could not and did not give an undertaking to protect the appellants to the full extent of any judgment each might recover is not a matter which entitles the appellants to the injunctions sought. The fact of receivership with the obvious question which such receivership raises as to the solvency of the respondent was a matter to be considered on the issue as to whether or not damages was an adequate remedy as one matter amongst others to be considered on the balance of convenience. However, it is not the practice to require undertakings of the type contended for. The court cannot require undertakings or make injunctive orders simply to provide security to satisfy any judgment the appellants may obtain in the absence of some evidence of the respondent's attempt to dissipate its assets in order to defeat a judgment of the court (see Jackson v. Stirling Industries (1987) 162 C.L.R. -- 30 of 37 -- 22 612 at 625). There is no such evidence in this case. When such an order is made it simply restrains dealing with particular identified assets. The assets remain the property of the defendant and are subject to execution by others in the normal way. The assets are not held to the benefit of the plaintiff or in trust for it (see Jackson v. Stirling (supra) at 626). The appellants were not entitled to an order that funds be held in trust for them and are not entitled to an order in the terms sought in para. 3 of the orders sought before this Court. The final matter relied upon by the appellants was what was called the appellants' prima facie right to their property and the injustice of allowing the respondent to dispose of it without accounting to the appellants for the proceeds of sale. The appellants contended that when the respondent failed to pay within 30 days of invoice, the respondent repudiated the agreements for sale. When demand was made for the return of the goods the repudiation was accepted, so it was submitted. Thereafter there was no authority to sell provided by para, (c) of the retention of property clause and such sales as did occur constituted a conversion of the appellants' goods. As the retention of property clause acknowledged a fiduciary relationship, it was submitted the conversion was by a person subject to fiduciary duties and who was obliged to account. It was submitted that for the court to refuse to enjoin the respondent from selling the goods was for the court to lend its support to the wrongful conversion of the appellants' property, and, to a wrongful failure to account or hold all receipts from sales in a separate account as trust money, as the respondent as -- 31 of 37 -- 23 a fiduciary was obliged to do. As a minimum it was submitted that the court ought to have ordered the establishment and maintenance of separate accounts in which the respective proceeds from the sale of each appellant's goods ought to have been ordered to be placed. The consequence of failing to order separation of the funds, it was submitted, was that the appellants stood in great risk of being deprived of their equitable right to trace the property into the funds obtained from sale (see Aluminium Industries B.V. v. Romalpa Ltd. [1976] 1 W.L.R. 676 at 687, 691). Certain things should be said in response to this submission. This is not a case where the retention of property clause is agreed by the parties as being a contractual term and where the only issue in dispute is the efficacy or the construction of the clause. It is disputed that the clause was ever a contractual term. Further, as a matter of construction, para, (c) of the clauses qualifies paras, (a) and (b) of it and in terms allows sale where the goods have not been paid for where the sale is "to a third party in the course of business". In this situation where the goods have not been paid for the sale is a sale on the seller's (appellant's) account as owner (see Romalpa (supra) at p. 693C). Where the goods have been paid for the sale is on account of the buyer (respondent) who is entitled to retain for its own self-benefit absolutely the proceeds of sale. On this construction the respondent is entitled to retain and sell the goods for so long as it continues in business and sells the goods in the course of its business. The effect of para, (c) would be to limit the -- 32 of 37 -- 24 appellants' right to enter and retake the goods for so long as the respondent is trading. There is nothing to limit the right of the respondent to sell unpaid for goods to the 30 day credit period. The provision may sensibly operate both within and beyond a 30 day period. Such a construction achieves the commercial purpose of giving the appellants a security over the goods in the event of the respondent ceasing to trade with money owing to the appellants. In that case they would enter and retake their respective goods in specie. For so long as the respondent traded, provided it complied with the requirement to hold the funds separately in trust for the appellants, as it was obliged to do if it were a true fiduciary relationship, the appellants were secured and entitled to the funds whether or not the respondent discontinued trading. The matter is not concluded in favour of the appellants by the decision in Romalpa (supra), as it concerned a clause in different, although in some respects similar, terms and the court was obliged to imply terms to give the contract business efficacy. In the instant case the clause as a matter of construction operates sensibly and there is no need for any additional term to be implied to give it business efficacy. It is unnecessary for me to finally determine which construction ought to be preferred. It is sufficient to say that where the existence of the term was disputed and an alternative construction open which would permit the respondent to sell, there was no compelling reason why sale of the goods ought to have been enjoined. -- 33 of 37 -- 25 As I have said earlier, where the goods cannot be identified with any certainty and separated from goods the property of the respondent, no prima facie right to unidentified nor ascertainable goods would move the court in the proper exercise of its discretion to grant injunctive relief. If the resulting funds from the sale of identifiable goods subject to the October, November and December 1989 invoices, could themselves be identified then the separation of those funds from the general funds of the respondent would be a matter of some significance in the balancing process having regard to the receivership of the respondent. However, on the evidence this could not be done. What His Honour has done is to consider that the undertaking to divide a mixed fund comprised of the receipts from the sale of all goods, the property of the respondent and the claimed property of the appellants, equally pending trial, sufficiently protected the interests of the appellants and the respondent when all competing considerations were balanced out. The appellants submitted that a fund of 50 per cent may be insufficient to cover the money claimed to be owing to each appellant. This may well be so. Without being able to identify which goods supplied under the invoices of October, November and December 1989 remained unsold at the time of the application to the learned District Court judge, and now remain unsold at the date of this appeal, it is impossible to say whether the proceeds of sale ever would have been, or are now, sufficient to fully cover the claims. The appellants are not entitled to have any deficiency made up from the sale of -- 34 of 37 -- 26 property of the respondent which property may be subject to the proper claims of others. What the undertakings do is to create two funds which may, or may not, produce sums in each equal to the money claimed by each appellant. What rights each appellant has to the fund relevant to its claim, either at law or in equity, is a matter for the District Court to determine on the trial of the actions. What must be stressed, and of which the appellants cannot complain, is that the courts cannot remedy the irredeemable. The appellants have chosen to attempt to secure their interests by private contractual arrangements. For the scheme to have any prospect of working it required total strict compliance by the respondent with the contractual terms as to the marking and separation of goods and the separate treatment of money recovered on the sale of goods which goods had not then been paid for by the respondent, as trust money, or some effective and practical way of achieving such a result if the respondent failed to comply with the term. The nature of the business conducted by the respondent, the nature of the goods sold, and the point of sale financial recording system which operated and which was of a perfectly usual type, meant that the risk of non-compliance by the respondent, if it were otherwise bound, was real. Or, to put it another way, the consequences of non-compliance would not be capable of being easily redeemed, if at all . The appellants cannot complain that the arrangements proved to be ineffective if such was due to the respondent's failure to comply with the term, if it were obliged to do so. -- 35 of 37 -- 27 The appellants' remedy, if any, in that case is against the respondent for damages for breach of contract. The appellants have failed to demonstrate that the discretion of the learned District Court judge miscarried in any way. On the second day of the appeal the appellants by leave filed an affidavit of Justin Geddes, exhibiting a letter from the receiver and manager dated 21 May, 1990 to each of the appellants. In it the receiver and manager advises that the business of the respondent has been closed down as of that date. The letter advises that the stock will be auctioned. The letter seeks permission to sell the goods and bank the proceeds or asks whether the appellants require the goods to be held in storage. As I read the letter either course is subject to the appellants' claim under the retention of property clause being determined. I do not read the letter, as counsel for the appellants submitted, as an admission that the goods supplied under October, November and December 1989 invoices can now be identified . The letter, far from assisting the appellants, weakens their position because the respondent has indicated a willingness to take such course as the appellants seek to hold all goods and all receipts pending the determination of their claim. If the appellants can identify the goods they claim, then they can be withheld from any auction. Insofar as the goods cannot be identified, the respondent has indicated that the money will be held pending determination of any claim of the appellants to it. Alternatively all goods will be held in -- 36 of 37 -- 28 storage pending determination of the appellants' claim to ownership of such of them as are subject to the retention of property clause. In these circumstances, the appellants have failed to make out a case for the injunctive relief sought on the ground of the changed circumstances. The respondent is not threatening to do anything contrary to the interests of the appellants pending trial and have offered to the appellants a choice of courses which the appellants may deem in their best interests. Even if the respondent was not offering such a course to the appellants, and intended merely to auction the goods and hold the proceeds from sale in accordance with the undertaking given to the District Court pending trial, I would not grant injunctive relief for the reasons I have stated earlier in this judgment. In the result I would dismiss each appeal. -- 37 of 37 --