Brimstone Resources Ltd v Empire Resources Ltd

[2018] WASCA 107

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Interlocutory injunctions
3. › Injunction pending determination of appeal
4. › Appeal from refusal of interlocutory injunction
5. › Whether appeal has reasonable prospects of success
6. › Whether balance of convenience favours grant of injunction
1. Practice and Procedure
2. › Appeals
3. › New points on appeal
4. › Whether party may raise point not taken below
5. › Point conceded below
6. › Whether fresh evidence justifies raising new point
7. › Principles governing admission of additional evidence on appeal
1. Practice and Procedure
2. › Appeals
3. › Appellate review of discretionary decisions
4. › Whether error of kind referred to in House v The King established
1. Contract
2. › Construction
3. › Security instruments
4. › No set-off clauses
5. › Whether enforceable to preclude reliance on cross-claims
6. › Whether claims impeach the instrument itself

Quick Take

A debtor's cross-claims against a secured creditor for payments allegedly due under the same agreements do not impeach 'no set-off' clauses in security instruments and cannot justify restraining enforcement of the security pending resolution of the cross-claims. Where a debtor seeks to restrain enforcement of security, the question on an interlocutory injunction application is whether the debtor has a prima facie case for final relief that requires and justifies protection by interlocutory injunction — not merely whether there is a serious question to be tried in the abstract. Payment of the disputed debt into court is an appropriate condition for any injunctive relief restraining enforcement of security, following Inglis v Commonwealth Trading Bank of Australia.