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Civ Pro - General Injunctions
Terms in this set (27)
What is an injunction?
Has been described in various ways, in Hubbard v Vosper as a 'flexible and discretionary remedy' and by McGechan on Procedure as 'a temporary and discretionary remedy.' It is a form of court order obliging a party to do, or stopping a party from doing, identified things until a case is resolved.
What rule relates to applying for an injunction?
Test applied to interim injunctions?
NZ Tax Refunds Ltd v Brooks Homes Ltd, adopting the approach from American Cyanamid Co v Ethicon Ltd: 1. Serious question to be tried, 2. balance of convenience, 3. overall justice, 4. Test shouldn't be followed too rigidly (Trades Employees' Industrial Union and NZ Tax Refunds).
Which Rules provides for undertakings as to damages?
Case law on undertakings as to damages
Sanson = an undertaking is a mandatory requirement
Knight= court has a discretion to permit the late filing of an undertaking or even dispense of an undertaking entirely. Court could also grant an interim injunction on the condition that an undertaking is given.
A v Fairfax NZ: resolved previous conflicting case law and concluded that the court has a discretion to dispense this requirement but that discretion was only to be used in narrow circumstances.
Pop-A-shot = security may also be required if party is from overseas.
What rule provides for a without notice injunction?
What are the obligations of a client and lawyer when seeking without notice injunctive relief?
Per Rule 7.23(1) Client must use form G 23. Per Rule 7.23(3) Lawyer must provide a personally signed certificate stating that "I certify that this application complies with the rules. In order to sign to this the lawyer must be personally satisfied that the application complies with the rules, the order sought is one that ought to be made and there is a proper basis for seeking an order in an application without notice.
What are the evidential/disclosure requirements of seeking a without notice injunction?
Evidence that supports the application must be put "fully and fairly" before the court (per Tipping J in Automatic Parking Coupons).
What is the consequence of subsequent information coming to light showing that a without notice injunction was not legitimate?
Enforcement of the undertaking as to damages (Anzpac Export Ltd), Anderson J also warns that this could result in an action for professional negligence.
What is a Pickwick Application?
Originating in the case of Pickwick International Inc, this is halfway between an on notice and a without notice application. The applicant files a without notice application but informs the other side of that step before the application comes before a Judge. This enables the opposing party to appear informally so that the Court can hear both sides.
Advantages of the Pickwick approach?
Court can hear both sides and see all likely evidence. This leads to a better, fairer decision and could potentially save P the costs of enforcing the undertaking if it were later found that the order was unnecessary or unjustified.
Disadvantages of the Pickwick approach?
Cost for R of preparing a response to an application which is already bound for failure.
Particular kinds of injunctive remedy?
Preservation of Property, Recievers, Charging orders, Freezing orders (Mareva orders) and search orders (Anton Piller orders).
Rule for preservation of property
Rules for recievers?
Rule for charging orders?
Rule for freezing (Mareva) orders?
Requirements of Mareva order & case came from
National Mutual Life Nominees: 1. Arguable Case, 2. Assets within jurisdiction (no longer in NZ as rule 32.2), 3. Real risk that property will be removed or dissipated, 4. overall justice of the case.
Rule for ancillary order
Purpose of an ancillary order?
May be made for the purpose of gaining information relating to assets relevant to the freezing order, determining whether the order should be made or appointing a receiver of the assets and subject of the freezing order.
Rules for Search Orders?
Rule for restriction of entrants for freezing orders?
Who cannot enter with a search order according to rule 33.4?
The applicant or their representatives (i.e. if not a natural person: directors, officers, emloyees, partners etc).
Elaboration/Case law relating to first part of test for interim injunctions:
Eichelbaum J in Ansell v NZI Finance - it is not sufficient for an applicant to merely submit that there is a tenable cause of action from a legal point of view.
Elaboration/Case law relating to balance of convenience:
Requires consideration of the impact on the parties of granting of, and refusal to grant, the order.
Decision on whether granting/not granting would fairly allow the adjustment of the rights of the parties in a way that accords with fairness and justice.
In NZ an assessment of the merits at this stage is permissible (Shotover Jet Boats Ltd)
Elaboration/case law on assessment of the overall justice part of the injunction test.
Essentially a "check" on the position that has been reached from the analysis of the former two criterion (NZ Tax Refunds). Delay in bringing an application will be a factor (Telecom Corporation).
Elaboration/case law on fact NZ Tax Refunds test shouldn't be applied too rigidly
Trades Employees' Industrial Union and NZ Tax Refunds.