S52 TPA



S52 TPA

A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive.

Trade and Commerce

Nelson v Concrete Constructions (1990)

• Post WC changes – less money to sue employer. Tried to sue in m/d.

• Trial: CC had misrep that workplace was safe.

• HC: m/d conduct BUT conduct was not in T/C. Corp was in T/C, but must ask: is CONDUCT of corp in T/C? N failed.

• LAW: s52 does not encompass ALL conduct of a corporation but rather conduct that has a trading/commercial character.

EMPLOYEE

Barto v GPR Management Services (1991) 33 FCR 389

• Conduct btw employer/employee to neg contract of employment?

• Held: yes.

o Initial neg of employment and later variation are NOT diff ( still T/C in nature

o Internal communications between employees in course of normal activities ( not T/C

o Conduct obviously T/C (ie selling car to employee) does not lose T/C nature just because it is with an employee

Martin v TDR [1999] FCA 593, (1999) 163 ALR 79

• Employer m/d employees by failing to inform them of their super rights.

• Held: not T/C as “no commercial dealing between” them.

McCormick v Riverwood International (Australia) [1999] FCA 593, (1999) 167 ALR 689

• Statement about employee’s status after business sold.

• Held: T/C. Cf Martin v TDR.

THUS: taking broad view ( making/varying employment contract is T/C but implementation of contract is NOT.

VENDOR SELLING LAND (conduct not in T/C

O’Brien v Smolonogov (1983)

• V subdivide and sell land. Rep to P. P buy without inspecting.

• Held: Conduct of V in selling land ( not in T/C.

Argy v Blunts (1990)

• Land “unlimited potential for redevelopment”. Can’t build 30m of water (zoning cert). Page missing when faxed to A. Exchanged contracts without knowing that.

• Held: V (selling/subdividing) ( not in T/C. BUT agent/solicitor IS in T/C (successfully sued).

Franich v Swannell (1994)

• V knew foundations failing. P bought not knowing.

• Held: m/d but V not in T/C bcos sale of private house.

SALE OF BUSINESS (conduct in T/C

Bevanere v Lubidineuse (1985)

• Beautician sold business on basis of weekly takings. Failed to disclose “head lade” was leaving once sold.

• Held: sale of business ( T/C.

HEALTH RELATED

E v Australian Red Cross (1991)

• HIV in blood. Red Cross in T/C?

• Held: RC paid money to supply blood to hospital – just enough to cover costs. Though m/d ( not T/C as not profiting from it. Hospital was in T/C (private) but not m/d.

RELIGIOUS INSTITUTIONS

A-G (ex rel Elisha) v Holy Apostolic Church (1989)

• Religious institutions ( not usually T/C.

Fasold v Roberts (1997) and Pilmer v Roberts (1997)

• R claim find Noah’s Ark and creation science. Held public meetings etc.

• Held: R not in T/C – distributing flyers, hodling public speeches, asking for donations, volunteer staff. Priority not for money (but propagation of ideas).

INDUSTRY COMMENTATORS

Glorie v WA Chip and Pulp (1981)

• WA film screening saying replant trees etc ( m/d.

• HELD: m/d and T/C – intention was to answer criticism about industry, protect commercial interests, public relations exercise

Tobacco Institute (1992)

• Public statements re particular product/industry NOT T/C if no commercial interest in making it

• BUT corp affiliated with industry, with ad questioning passive smoking bad? ( T/C (not just contributing to “public debate”)

• Look at circumstances/terms of ad ( spent a lot of money, persuasive in tone, placed in many newspapers, prominent, eye catching,

Robin v Canberra International Airport [1999]

• Private owners of airport fight subdivision of neighbour land. Corp argue with Local Council – acting in T/C?

• Held: activity in blocking subdivision of land is NOT T/C – mainly for political purpose

POLITICS

Finucane v NSW Egg Corp – semi gov body

• F interested in buying egg run. Asked about transport/distribution. Corp did not reveal that they were going to completely review/replace the current arrangements.

• Held: T/C – includes all the mutual communing, neg verbal and correspondence, bargain, transport and delivery which comprise commercial arrangement.

Durant v Greiner (1990) - politician

• NSW Prem before election say school not closed down. Elected and closed down.

• Held: not T/C. Although Prem in “professional activity” – must also be in T/C.

Misleading and Deceptive Conduct

• Often used by competitors, rivals, political opposition.

Henjo Investments v Collins Marrickville (1987):

• HI set up new good business – sold for 0.5 mil. CM (P) observes 120 seats, 39 tables, bar and “fully licensed”. C gets solicitor check license but S does not. Turned out license for 84 seats only and can’t serve alcohol at bar. Misrep?

• Held: yes - HI knew problems and did not say anything.

• LAW: to determine m/d ( look at all relevant facts and circumstances.

Hornsby Building Info Centre (1978);

• Syd BIC very successfully. Later, another in Hornsby. Syd angry over name – passing off as being connected to Syd BIC.

• Held:

o Intention of D (Horn) does NOT matter – can be liable for m/d without intending to do so.

o BUT no m/d because BIC is just a description of Centre (general use).

World Series Cricket v Parish (1977):

• Packett bought best cricketers and set up games – ad in Women’s Weekly saying “supertest”. Parish (establishment cricket) argue that some readers might think supertests part of est. cricket (m/d).

• Held: look at the audience of the m/d ( don’t limit to those that would have interest/knowledge of cricked (incl those general public – women who wouldn’t know much about cricket).

Taco Co v Taco Bell (1982)

• TC sets up shops in Aus. TB (from America) come to Aus and argue m/d over name.

• Held: not m/d – any reputation in Syd already belonged to TC. TC successfully sued TB in return.

• Cannot be m/d unless in all circumstances a misrep:

o What is relevant section of public that is m/d?

o Regard to ALL o f that group (gullible, cautious, smart, stupid, educated, uneducated).

o Evidence that some individuals misled.

o Inquire why misconception has been caused (caused by Americans).

Parkdale v PUXU (1982):

• More expensive and less expensive furniture – very similar design

• Held: Generally – two products which closely resemble the other ( m/d. BUT not m/d because labeling of manuf was clear.,

Campomar Sociedad, Limitada v Nike (2000)

• LAW: are ordinary/reasonable members of the classes of prospective purchasers likely to be m/d?

Janssen-Cilag v Pfizer (1992):

• J and P pharm comp make worm tablets. P badmouth J to QLD Health Department. HD stopped buying from J. M/d?

• Held: J entitled to damages as WELL as injunction against P. Can get damages if m/d caused 3rd party to stop purchasing your products.

Fraser v NRMA (1995)

• F (1 director of NRMA). NRMA was mutual society of members. Wanted to demutualise – F dissented. NRMA ran uge ad campaign getting members to vote yes in return for “free shares”. But would give up rights etc of a multimillion society.

• Held: m/d in ad ( huge audience ( not many would understand demutualisation.

IOOF Australia Trustees v Tantipech (1998)

• Jeweller told only jeweller in shopping centre and secure. Actually 2nd and robbed in 2nd week.

• Held: m/d.

Leda Holdings v Oraka (1998):

• L (shopping Centre proprietor) lease to A for Wendy’s franchise. Mr J neg leases for franchises. Asked L how many shops leasing in Centre. Later a lot of people had actually dropped out.

• Trial: m/d ( did not correct the representation originally made.

• FC: Maj: J was exp business person – could not reasonably expect that rep was true.

Murphy v Overton [2004]

• M couple lease unit in retirement village for 90 years. Live on pension, asked when contracting in July 92 if “can people on pension live here” and given brochure. Told that payment of $55.71 would cover everything (eg. facilities in village). Calculated would have extra for food, clothes etc. Entered in Oct 92. Director died. New director announce in 96 that they would now be charged 3x more rent. Started charging in 97.

• Held: not statute barred (3 yrs after loss) as loss counted from 97 (when charged) ( m/d apply.

Silence

• Contract: silence only m/d if there is a duty to disclose.

• TPA: silence is m/d in certain circumstances (Henjo)

Bradford House v Leroy (1983) ATPR 40-387

• Lessor fail to disclosure that floor of Prem unsuitable for intended use by Lessee

• Silence may be m/d IF person aware that silence is conveying erroneous impression!

• BUT: not m/d because:

• Lessee made no enquiry

• Lessor made not positive statement

• Lessor apparently unaware that floor unsuitable.

• Apply caveat emptor – general law.

Rhone Poulenc (1986) 12 FCR 477; ATPR 46-010

• Chem manuf allege rival m/d by not disclosing that product not reg and thus illegal.

• Held: no duty to disclosure or circumstances requiring disclosure.

• NOTE: started to question/distinguish between general law liability for non-disclosure and s52 liability.

Henjo Investments v Collins Marrickville supra

• MOVED away from general law.

• Duty to disclose is not confined to particular relationships eg. Trustee/bene, solicitor/client etc ( general law does not operate so far as s52 is concerned.

• No useful purpose in analysing circumstances (about duty) as this MUST depend on facts of each case.

Demagogue v Ramensky (1992)

• R bought land on plan. D did not disclose that no lawful access from land to public road.

• Held:

o Whether silence m/d ( look at facts/circumstances (follow Henjo).

o Should NOT look at duty to disclose (that is CL) – no general duty of disclosure

o Examine silence as a circumstance ( and then whether there has been m/d conduct.

• Thus: m/d ( expectation that access is something that would be disclosed.

Arbest v State Bank (1996) ATPR 41-481

• Bank never bind itself to give extra funding to complete A’s project. But successive officers had encourages them to believe that extra would be advanced. Fail to dicslose receive a neg valuer’s report about project, when taking extra security over A’s assets.

• Held:

o Assess silence as circumstance like any other.

o M/d because induced belief about state of Bank’s support for project.

o Given relationships (many prior dealings) and encouragement from Bank ( reasonable to expect to be informed about the neg valuer’s report affecting the availability of future funds

Fraser v NRMA (1995) 127 ALR 543, 52 FCR 1

• With Demagogue:

• Relationship btw parties

• That relationship is fiduciary or other in general law that have duty of full disclosure

• Failure to give full/fair disclosure of afacts which are material for them to make an informed decision

• THEN rel can assist in determining whether circ ( m/d.

• NOT a ”reasonable expectation test” ( but this comes under examining the factual situation to see IF it gives rise to expectation of a full and fair disclosure.

Leda Holdings v Oraka (1998) ATPR 41-601

• BUT tendency to apply the ”reasonable expectation” test anyway!

• Held: no m/d (not reasonable expectation of disclosure) as ”arms length”.

o LL/T rel not expected to have any obligation to disclose.

o At arms length in commercial situation – normal for one party to be aware of info that other is not aware of: Lam v Ausintel Investments (1990) ATPR 40-990

BUT this is incorrect to reintroduce general law concepts!!

Kabwand v NAB (1989) ATPR 40-950

• Customer buy business of other customer. Bank did not disclose business value or business owner’s financial situation (bad) – said “excellent cash flow situation”.

• Held: no duty to disclose ( no m/d.

o ALSO implied contractual duty of confidentiality

• POST Demagogue – officer should have NOT said anything at all (confidentiality) or if said something ( given complete explanation.

Butcher v Lachlan Elder (2004)

• B want waterfront Prop. Inspected and given brochure by agent. Swimming pool in backyard btw water and house. B want to replace with pavement area and smaller poolk. Survey on brochure reveals enough room. After exchange, reveal brochure was WRONG. Boundary of back went thru pool – no room for smaller pool even. B sued V (can’t under TPA) and Agent.

• H/C: 3/2 held agent NOT m/d. Should have done own survey and also fine print at bottom of brochure.

• McHugh/Kirby (dissenting) – absence of saying “make your own enquiries” ( m/d.

BANKS AND CUSTOMERS

Chiarabaglio v Westpac (1989)

• Loan officer advise long term customer P to borrow foreign currency (for lower interest rate). Told “good business”, with no sig risk etc. P borrowed 500K in Yen – debt doubled due to fall in Aus dollar.

• Held: silence was m/d

Spice v Westpac (1989) unreported Foster J, 1 September, 1989; (1990) ATPR 41-024

• Long standing customer. Limited knowledge of foreign currency loans. Persuaded to borrow FC loan at low interest rate. Told “no catch”.

Commonwealth Bank v Mehta (1991) 23 NSWLR 84

• M sought FC loan from bank. No history of banking with that bank.

• Held: bank won on appeal.

Promise/Prediction

• Before: promise/prediction does NOT contravene s52 if not fulfilled.

• NOW: contravenes s52 if unjustifiable to give promise/prediction:

o Did not believe what was promised/predicted

o Did not believe in correctness of opinion

o Not made on reasonable grounds

o Not properly qualified

• Pre 1986 amendment: claimant of m/d had to show they were RECIPIENT of promise, had RELIED, and show M/D (ie that person didn’t believe it when they rep it) ( hard to prove.

• S51A TPA: reversed evidentiary onus.

Bill Acceptance v GWA (1983)

• Issue: can promise/prediction contravene s52 if it is NOT fulfilled , EVEN though representor may have believed it at that time (ie. m/d to knowledge of representor)?

• HELD: not m/d – must have knowledge of their falsity or with reckless indifference.

• ONUS: Once establish recipient and reliance ( representor must prove that they had reasonable grounds to say and believe the “representation as to future matter”.

Concrete Constructions v Litevale [2002]

• CC contract with L to build and payment for further variations to building work. CC did vary but not paid. L did not tell CC that they had no funds except those generated by project ( thus if shortfall then CC would not be paid. CC argued by entering into contract, L had implied represented capacity to pay. Argued – L had not reasonable grounds to make rep ( thus m/d.

• Held: was it reasonable to represent capacity to pay (judged at time of entry into contract) ( was reasonable and not m/d.

• Affirmed Bill Acceptance:

o failure to keep promise ( itself not m/d.

o consider time that promise/prediction made, NOT later events

o onus on representor to show reasonable grounds.

James v ANZ Banking Group (1986) 64 ALR 347

• Held:

o Mere fact that promise/prediction does not come true ( not m/d

o BUT may imply present/past fact that promisor intend to do promise and has means to do so “state of mind”.

o If “state of mind” m/d (did not have honest belief at time promise/prediction made) ( m/d!

Wheeler Grace v Wright (1989)

• Gold mining investments. Told all good things (potentially correct). Representor believed correctness BUT did not qualify.

• Held: m/d if you don’t qualify statements that demand qualification (or disclosure of possibility of non fulfillment)

o Honest belief is not enough ( statement should not have been made in that unqualified form

o Look at fact/circumstance ( test is not TOTALLY dependent upon proof of intent to m/d

Accounting Systems 2000 v CCH (1993) 42 FCR 470

• Breach of warranty ( only evidence to indicate no intention/ability to fulfil promise

• Promises binding in contract (warranties) can contravene s52

Inducement and Reliance

Gould v Vaggelas (1985):

• Fraudulent misstatement case – but applies equally to s52. Applied in Henjo.

• HELD: G had relied on V and accordingly entitled to damages.

• Wilson:

o Even if rep was false (m/d) ( if reptee has NOT relied ( cannot claim damages.

o Reptor calculated (with intent) to induce reptee to enter contract and reptee DOES ( fair inference of inducement by m/d.

o Inference can be rebutted if proven that reptee KNEW false at time of entering contract

o M/d only needs to be A cause, not necessarily THE cause of loss.

Lam v Ausintel Investments (1990)

• P not told many things ( m/d.

• HELD: no reliance ( Lam was experienced banker, was arms length transaction. Had done it for own business interest, not because he was induced.

Rumpe v Camrol (1985):

• Ps told liquor license to serve until 3am. 1 P found out V lie (only to 12am). Entered into contract.

• HELD: not m/d as one of Ps KNEW ( couldn’t prove damage BY m/d.

Henjo Investments v Collins Marrickville (1987)

• HELD: relied on m/d. Solicitor’s failure to check does NOT negative H’s liability.

• Did NOT know ( cf Rumpe.

Neilsen v Hempstead Holdings (1986)

• P of motel business. V rep had 80% occupany. Accountant to check, but didn’t pick up that it was 30% only.

• HELD: reliance and causal link NOT broken. P entered into contract in part DUE to V’s m/d. ONE of the causes.

• Did NOT know ( cf Rumpe.

Janssen-Cileg v Pfizer (1992)

• P badmouth J product. QLD Health Dep stopped buying J product ( loss.

• P argued reliance only where person (suffer loss) has been the one m/d.

Henville v Walker

• N developer made plan and asked W how much it would sell for.

• M/d – overstated figures by W and understated figures of cost of building.

• HELD: although m/d by W was only ONE cause ( could recover ALL loss from W.

Disclaimers

• Generally: do not work to prevent s52 liability for V’s agent, where wrong info provided to P by agent in agent’s promotional brochure.

Keen Mar Corp v Labrador Park Shopping Centre (1989) ATPR (Digest) 46-048; Lezam v Seabridge (1992) ATPR 41-171

• Agent held liable.

• Printed exemption with lack of prominence, content and communicative force ( did not negative liability.

John G Glass v Karawi [1993] 41-249

• Agent held liable – DISTINGUISHED from Butcher.

• JG represent as specialist consultants to investors/developers ( not simply ”passing on info about the Prop”.

Henjo.

• If m/d to enter contract ( likely m/d into agreeing to clause eg.

Butcher v Lachlan Elder 2004

• NOW unclear: DC in brochure provided by agent MAY absolve liability

o Look at conduct of agent in relation to Ps

o Consider what each party knew about the other

o The examinable conduct as a WHOLE

• FACTS:

o Ps were wealthy, smart, self reliant. Agent was not specialist in land law or represent that it independently verified land details – simply passing it on.

o Major purchase of expensive prop by people, who had profession advisors etc.

o Diagram clearly surveyor’s drawing and not made by Agent. DC easily readable, repeated etc.

• Must be contract between parties ( either disclaimer will work (eg. agent in could rely on disclaimer, as no contract between him and P).

• Dissenting judges: argue inconsistent with previous cases.

Relief under s82(1) - damages

• Person who suffers loss by conduct due to contravention of s52 ( recover loss.

• Measure of damages:

o Contract is expectation damages

o Tort is reliance damages. THIS is generally reliance.

Gates v CML Assurance (1986)

• G (builder) paid $2.08 per month for life insurance. Told if so injured as to stop work as builder ( lump sum comp. G hurt and can’t work as builder. No pay out. Actually only comp where quad/paraplegic – can’t do ANY work.

• LOSS: the payout? No. Actually only $2.08 for the 4 months he paid.

• That is what he lost due to reliance ( he does NOT get what he expected (ie lump sum).

• HELD: generally use tort measure of damages for s52.

• NOTE: if evidence that but for m/d G would have gone to other insurance comp and gotten THAT type of insurance ( then may have actually gotten that LOST amount.

Henjo Investments v Collins Marrickville

• Business actually worth 54K. Paid 500K.

• LOSS: 500-54K?

o Also 14 months 262K trading losses ( only 10% held to be caused by m/d. Had been caught by police but kept trading anyway.

o Forced to keep trading at 25% over market rent rate, bcos couldn’t find another tenant ( losing 300K per year.

• HELD: 446 – 200 (cancelled their Mg) + 10% trading loss + rent if they could have shut down earlier.

Sellars v Adelaid Petroleum (1994)

• S (on behalf of comp) in neg with A to buy mining business. Other possible P was Pagini. S offer x dollars to A to cut off neg with P as prereq to further neg. S went back on word and only gave less amount.

• LOSS:

o Loss is NOT what they expected/promised (ie. S’s x dollars)

o Loss is amount you have lost BCOS of reliance ( loss of opp of deal with P.

o 40% possibility that A deal with P ( loss. S argue that 40% is 0, balance of prob.

• HELD: Loss of opportunity ( 40% of P offer.

Kizbeau v WG & B (1995)

• P buy motel on basis it has conference centre that can seat 100 ppl. Council say no approval to have centre at all. P got town planning approval for 50 ppl.

• LOSS: whole conference centre? NO – always had it for 50ppl.

o Loss was 50 ppl difference.

• HELD: can factor in events that occur LATER (ie. Town planning approval)

Marks v GIO Australia (1998)

• M borrow from GIO on basis of 1.25% above ref rate. GIO mistake – can actually charge 2.25% above. GIO apologize and give 6 mth to refinance – then charge 2.25% after.

• HC: 5-1 Mark fails.

o McHugh, Hayne, Callinan: M cannot prove that but for m/d ( would have borrowed elsewhere and gotten the 1.25% rate.

o Gummow, Gaudron: M suffer contingent loss ( loss only when charged 2.25% (not when m/d). Was able to avoid loss.

o Kirby (dissent): Should be what was promised BUT ( dissenting, because you cannot equate conduct/rep with a binding contract!!

Kenny & Good v MGICA (1999)

• Mgee suffer loss by neg. valuer. Overvalues at 5.35mil and Mgee loans 65% (3.6mil) on that. Real value 3.9mil. Sold for 2.65mil because of fallen market.

• HELD: but for bad valuation, would not have loaned ( loss is whole amount (3.6ml).

Murphy v Overton [2004]

• M suffered contingent loss – ACTUAL loss was only suffered once O started to charge all outgoings. THUS not statute barred (3yr limit).

• HELD: possible to have more than 1 loss

o Capital loss – eg loss of paying high price for something worth little

o Revenue loss – eg. how much extra charged each week and how long they live

HTW Valuers (Central Qld) v Astonland [2004]

• Bought shopping centre. Not told new centre opening nearby. Shopping centre valueless.

• LOSS: once new built ( inherent defect in value of their centre.

o Valuation evidence (at time of purchase, was worth amount paid) is not TOTAL

o Look at real value ( factoring later events that diminish value.0

Relief under s75B – extends to any person involved

• Not only is person doing m/d liable BUT potentially extends to ANY person involved in contravention.

• Example: Henjo ( comp had no assets ( could sue Sadie (director).

• Includes:

o Aided, abetted, counselled, procured

o Induced whether by threat/promise

o Directly/indirectly knowingly concerned or party to contravention

o Conspired with persons

Yorke v Lucas (1985)

• FACT: Y buy record business from Treasureway Stores. TS lied about business takings. V used agent Lucas company. Y sued TS, Lucas company and Lucas (principally).

• HELD:

o Comp (even though not know false) ( LIABLE.

o Lucas (individual) ( NOT liable. No personal knowledge of falsity, no intention to m/d.

• THUS: individual only liable under s75B if prove they INTENDED to cause m/d conduct. Must be KNOWINGLY concerned.

• NB: uses crim law cases (mens rea) eg. Giorgianni v R (1985)

Contribution s82(1B)

• Where claimant suffer loss PARTLY due to D’s m/d and PARTLY due to own failure to take reasonable care ( court will reduce damages proportionally!

• BUT only where D did not INTEND to cause loss and did not FRAUDULENTLY cause loss.

Limitation Issues

S82(2)

• Within 3 yrs.

• Amended in July 2001 ( 6 yrs.

Wardley Australia v WA (1992):

• 1987 share market crash. Director of merchant bank has influential friends. After crash, borrowed money from NAB, with Gov of WA as guarantee for $150 mil. Merchant bank fails and NAB demands debt from WA. M/d to enter into guarantee. 3 yrs after guarantee – NAB tried to amend proceedings.

• HELD: limitation time starts from day WA called to pay – NOT day they entered into guarantee.

• Distinction between contingent loss and ACTUAL loss. Actual loss start when called to repay debt.

Relief under s87 – any order as appropriate

• Court empowered to make such order as it thinks appropriate – either as addition or in lieu of damages.

Henjo:

• Were 446 damages (diff between actual worth of business) – 200 (Mg). Declared the Mg void ab initio, and got $246 damages.

• THUS: s87 can reverse contracts to void ab initio

Foreign Finance Cases

• Rewrote foreign loans into Aus loans.

• Thus – don’t owe loan in foreign currency (double actual debt – due to Aus$ fall). BUT at Aus interest 15%.

Akron Pacific v Illife (1997)

• Mason J: scan the remedial smorgasbord to see which is most appropriate to do justice to BOTH parties.

• NZI provide guarantees ( m/d.

o Trial: declared void. A argue unfair as m/d cause loss, but market fall was major contribution

o Mason: A provide guarantee that NZI supposed to give to Illife.

Relief under s87 - injunction

• Normally – people must have proprietary interest exposed to get injunction.

• TPA – ANY person can seek injunction.

World Series Cricket v Parish (1977)

• Literally ANY person – no need for proprietary interest.

• TPA is public interest legislation for consumers – enables ANY person to protect their own interest. No need for proprietary or special interest.

• Affirmed in public interest group case: Glorie v WA Chip & Pulp (1981); Phelps v Western Mining Corp (1978); AFCO v Tobacco Institute (1991).

American Cyanamid v Ethicon [1975] – followed in Australian Course Grain case (1983)

• When seeking interim injunction – 2 issues:

o Is there SERIOUS question to be tried?

o What is the balance of convenience?

Anton Pillar AG (1975)

• Anton injunction – where believe someone stolen your info, goods (eg. pirating) ( court unilaterally orders raid of D’s premises.

Mareva Case (1975)

• Greek ship in English waters.

• Mareva injunction - where genuine concern that D feel jurisdiction with assets.

Jackson v Sterling Industries (1987)

• HELD: can get Mareva injunction under TPA using Fed Court Act powers.

• THUS: injunctive power extends to FREEZING assets.

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