Civil Procedure

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  • Topic: Injunction, Legal terms, Interim order
  • Pages : 22 (4032 words )
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  • Published : April 19, 2013
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Jurisdiction

• S 16 Judicature Act 1908( general power to grant an interlocutory (interim) injunction

• Hubbard v Vosper [1972] 1 All ER 1023: A plaintiff is not entitled to an interlocutory injunction simply because he shows a prima facie right, and an arguable case as to its infringement. The remedy is flexible and discretionary

Perpetual Injunction

• Made after a substantive hearing on the merits

• Contradistinction to an interlocutory injunction, which is a holding measure only

Injunctions

• Holding status quo or variation of it

• May be without notice [ex parte] for short period

Origin

• Equitable – discretionary

• Not granted if damages could adequately compensate him – balance of convenience

• ex parte Island Records Ltd [1978] 3 WLR 23: If a without notice injunction is sought, the applicant must depose to damage and urgency in the supporting affidavits

R 7.53

(1) An application for an interlocutory injunction may be made by any party before or after the commencement of the hearing of the proceeding, whether or not a claim for an injunction is claimed in the party's statement of claim, counterclaim, or third party notice.

(2) The plaintiff may not make an application for an interim injunction before the commencement of the proceeding except in case of urgency, and any injunction granted before the commencement of the proceeding -

a) must provide for the commencement of the proceeding; and (b) may be granted on any further terms that the Judge thinks just.

R 7.54
(1) An applicant for an interlocutory injunction under rule 7.53 must file a signed undertaking that the applicant will comply with any order for the payment of damages to compensate the other party for any damage sustained through the injunction. (2) The undertaking must be referred to in the order granting the interlocutory injunction and is part of it.

• Mayall v Weal [1982] 2 NZLR: The proceeding itself must be open to the grant of a permanent injunction if interim relief is to be sought

General Principles

• Interlocutory: form of temporary relief granted to applicant at Court’s discretion pending hearing of substantive application

• Interlocutory injunction relief: discretionary and some general principles have been formulated to assist in the exercise of discretion

Guiding Principles

1. Serious question to be tried vs balance of convenience : Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (CA) per Cooke

2. Eichelbaum J in Ansell v NZI Finance Ltd (High Court, Wellington, A 434/83, 30 November 1983): in establishing serious question to be tried, it is not sufficient for an applicant to submit there is a tenable cause of action from a legal point of view and a conflict on the facts

3. Affidavit evidence must be relevant and sufficient to establish there is a serious question to be tried & determination made on balance of convenience

4. BOC= balancing one need against another - American Cyanamid Co v Ethicon Ltd

5. Can damages properly compensate?

6. If BOC proper then factual and legal merits of P’s claim should be carefully considered and issues examined. Shotover Gorge Jet Boats Ltd v Marine Enterprises Ltd

7. American Cyanid: Diploick: balance arose only when there was doubt of the adequacy of respective remedies available to either party or both

Status Quo

1. Court to preserve the status quo until rights of parties are able to be determined at trail. Onus n P to prove intervention is appropriate

2. Establish date at which status quo is determined – consider degree of financial commitment incurred by D meantime – property damage

3. E R Squibb & Sons Ltd v ICI New Zealand Ltd (1988): delay by P may result in court selecting date for determining the status quo at date at which legal proceedings were sought

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