Case: Deangrove Pty Ltd v Commonwealth Bank of Australia [2001] FCA 173 ; (2001) 37 ACSR 465
Outcome: referred to
I would also dismiss the application by G &amp; J Gears for an interlocutory injunction to restrain the use of intellectual property rights. As indicated above, on the evidence now before the Court, there is no serious question to be tried with respect to the alleged infringement of the Little Rock mark. Furthermore, I accept the respondents' contention that G &amp; J Gears has not demonstrated to the requisite degree that it has any lawful entitlement to the "Rockcrusher" logo or, indeed, any intellectual property rights in the designs, patterns and tooling (for the greater part of which it seems that G &amp; J Gears have not paid). It suffices to refer to the matters on which counsel for Brobo relied in this regard. As the evidence currently stands, the assignment of relevant rights from R-Diffs to G &amp; J Gears would appear to be ineffective because R-Diffs' receiver did not give his consent: see, e.g., Deangrove Pty Ltd v Commonwealth Bank of Australia [2001] FCA 173 ; (2001) 37 ACSR 465 at 471-2 per Sackville J. 60 Further, I am not satisfied that G &amp; J Gears has established that there is a serious question to be tried with respect to any other matter that would support the grant of the interlocutory relief it seeks. Although the threshold is low and the account given by Davis, if accepted, is indicative of an attempt by Milton to induce Davis and Boydston to depart from an alleged agreement or arrangement with G &amp; J Gears, the rest is little more than speculation at this stage. G &amp; J Gears conceded that it is indebted to Brobo in the amount that supports the statutory demand by virtue of the registrar's order. It is not suggested that Brobo desires other than to achieve the company's winding up in the winding up proceedings. Moreover, it must be borne in mind that Davis' account is denied by Milton (who says that he was not in the US at the relevant time) and Boydston. There was no evidence that the alleged plan was given effect. For example, there was no evidence that the statutory demand, which was served months after the alleged conversations, was intended to give effect to anything allegedly discussed in these conversations. Indeed, there was no evidence that the alleged plan met with any agreement (with Boydston or otherwise) and that Milton set out to implement it. Counsel for G &amp; J Gears asked the Court to infer that the demand was part of Milton's alleged stratagem to put it out of business. I would not draw this inference on the evidence presently before me. 61 Even if there were a serious question to be tried, I would not grant the relief sought. First, in a case such as this, as counsel for G &amp; J Gears virtually conceded, damages would be an appropriate remedy. Secondly, on the evidence before the Court, particularly as set out in the 24 February 2006 affidavit of Milton and the affidavit of Witt, it seems unlikely that G &amp; J Gears or the natural persons behind it would be in a position to satisfy any order for damages for breach of any undertaking given to the Court. There is also Boydston's evidence that his company or companies would suffer permanent injury if an injunction in the terms sought were granted. And there is also the fact that, as the respondents submitted, there has been an apparent lack of candour on the issue of entitlement to the "Rockcrusher" logo. I accept that, as the respondents submitted, the evidence for G &amp; J Gears created an impression that it was its application on 11 March 2005 that was still pending whereas this was not the case. There is no basis shown for the making of any alternative order of the kind sought by counsel for G &amp; J Gears.