FEDERAL COURT OF AUSTRALIA

Marlu Transport Solutions Pty Ltd v Bishdun Pty Ltd [2025] FCA 118

ORDERS

THE COURT NOTES THAT:

A.    The applicant has undertaken to the Court that it will pay to any party restrained or affected by the action ordered by the interlocutory injunction, such compensation as the Court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the Court or in accordance with such directions as the Court may make and to be paid in such manner as the Court may direct.

THE COURT ORDERS THAT:

1.    Until the final determination of this action, or until further order, each of the first respondent and the fifth respondent, by itself, its servants and agents and assignees, be restrained from:

(a)    transferring Oz Base’s shares in the applicant to the fifth respondent pursuant to cl 3.5(b) and (c) of the Payment and Security Deed;

(b)    selling the Collateral (as defined in cl 1.1 of the Specific Security Deed), pursuant to cl 7.2 of the Specific Security Deed;

(c)    appointing an external controller of all or any part of the Collateral (as defined in cl 1.1 of the Specific Security Deed) or Oz Base;

(d)    appointing a person or persons to be Controller, including an External Administrator (as defined in cl 1.1 of the General Security Deed), of all or any part of the Collateral (as defined in cl 1.1 of the General Security Deed) or the applicant’s income pursuant to cl 12.1(a)(i) of the General Security Deed or otherwise;

(e)    appointing an observer of board meetings of the applicant pursuant to cl 4.9 of the Payment and Security Deed at which the conduct of or advice in relation to these proceedings is to be discussed or dealt with, unless any such appointment is made on the basis that the observer is not to be present at any meeting while the conduct of or advice in relation to these proceedings is being discussed or deal with;

(f)    exercising any rights as Attorney pursuant to the Powers of Attorney granted under:

(i)    cl 5.1 of the Payment and Security Deed;

(ii)    cl 14 of the Deed of Guarantee and Indemnity (Corporate);

(iii)    cl 13 of the Deed of Guarantee and Indemnity (Personal);

(iv)    cl 21 of the General Security Deed; and

(v)    cl 9.1 of the Specific Security Deed,

to cause or effect the Payments to be made;

(g)    exercising any powers under cll 10.1, 10.2 or 10.4 of the General Security Deed to cause or effect the Payments to be made;

(h)    exercising any powers to access, inspect, copy or receive information and documents of the applicant or Applicant Related Entities in relation to the conduct of these proceedings, including those protected by legal professional privilege, including but not limited to those powers under:

(i)    cll 4.7, 4.8, 4.9(b) and 10.3 of the of the Payment and Security Deed; and

(ii)    cll 5.2 and 5.3 of the General Security Deed;

(i)    exercising the powers set out in:

(i)    cl 11.5(a) of the General Security Deed;

(ii)    cl 4.13(a)(ii) of the Payment and Security Deed;

(j)    exercising any statutory, common law or equitable right or power, as exists at law or as set out or referred to in cl 4.13(d) of the Payment and Security Deed to:

(i)    terminate the Asset Sale Agreement or Payment and Security Deed for repudiation based upon any failure by the applicant or Applicant Related Entities to make the Payments;

(ii)    enforce any securities which may subsist as regards the assets of the applicant and Applicant Related Entities, including but not limited to any such securities which may fall outside the scope of the Personal Properties Security Act 2009 (Cth) such as equitable liens; or

(k)    exercising powers to seize, retain, dispose of or sell collateral under the Personal Properties Security Act 2009 (Cth) with respect to the security interests granted by the applicant or the Applicant Related Entities to the fifth respondent pursuant to the Payment and Security Deed, the General Security Deed or the Specific Security Deed or otherwise.

2.    Order 1 of the orders made on 7 February 2025 cease to have effect upon the making of these orders.

3.    The costs of the applicant’s application for interlocutory injunctive relief be costs in the cause.

Definitions

In these orders:

(a)    Asset Sale Agreement means the Asset Sale Agreement dated 26 April 2024 (as annexed at JJ-11 of the First Jean-Louis Affidavit).

(b)    Deed of Guarantee and Indemnity (Companies) means the Deed of Guarantee and Indemnity dated 26 April 2024 to which Oz Base, Marlu Health Pty Ltd, and Marlu Resources Group Pty Ltd are parties (as annexed at JJ-13 of the First Jean-Louis Affidavit).

(c)    Deed of Guarantee and Indemnity (Personal) means the Deed of Guarantee and Indemnity dated 26 April 2024 to which Saturn Manu Turnbull, and Alex Bruce McPhee are parties (as annexed at JJ-14 of the First Jean-Louis Affidavit).

(d)    First Jean-Louis Affidavit means the Affidavit of Jacques-Benoit Jean-Louis dated 28 January 2025.

(e)    General Security Deed means the General Security Deed dated April 2024 (as annexed at JJ-15 of the First Jean-Louis Affidavit).

(f)    Oz Base means Oz Base Nominees Pty Ltd (ACN 646 665 974) as trustee for Monaro Holdings Trust Fund (ABN 68 823 241 465).

(g)    Payment and Security Deed means the Payment and Security Deed dated 26 April 2024 (as annexed at JJ-12 of the First Jean-Louis Affidavit).

(h)    Payments means the Redemption Payments set out in Schedule 7 to the Asset Sale Agreement and/or the Deferred Payments as defined in cl. 1.1 and set out in Annexure A of the Payment and Security Deed.

(i)    Specific Security Deed means the Security Deed for Security Interest Shares in Marlu Transport Solutions Pty Ltd dated April 2024 (as annexed at JJ-16 of the First Jean-Louis Affidavit).

(j)    Applicant Related Entities means Oz Base, Marlu Health Pty Ltd, Marlu Resources Group Pty Ltd, Saturn Manu Turnbull, and Alex Bruce McPhee.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    On 26 April 2024, the applicant, Marlu Transport Solutions Pty Ltd (Marlu), and related parties, entered into several agreements with the first respondent, Bishdun Pty Ltd (Bishdun), and the fifth respondent, Bishop Contracting Pty Ltd as trustee for the MD Bishop Trust (Bishop Contracting), and related parties. The purpose of the agreements was to effect the sale of a general and refrigerated transport business operating in the Northern Territory known as Nighthawk Transport, and the assets associated with that business, from Bishdun to Marlu.

2    The agreements entered into on 26 April 2024 (Agreements) comprise the following:

(a)    an Asset Sale Agreement;

(b)    three security deeds (Security Deeds), identified as:

(i)    a Payment and Security Deed;

(ii)    a General Security Deed; and

(iii)    a Security Deed for Security Interest Shares in Marlu Transport Solutions Pty Ltd (Specific Security Deed); and

(c)    two deeds of guarantee and indemnity, being:

(i)    a Deed of Guarantee and Indemnity under which the guarantors were three companies related to Marlu (Company Guarantee); and

(ii)    a Deed of Guarantee and Indemnity under which the guarantors were the two directors of Marlu (Personal Guarantee).

3    The Asset Sale Agreement provided for a purchase price of $13,000,000 for the Nighthawk Transport business, subject to the potential for adjustment of the purchase price by reference to possible variation arising from the valuation of the operating assets of the business. The Asset Sale Agreement required Marlu to pay to Bishdun $7,800,000 of the purchase price upon completion. As to the remaining $5,200,000, this was dealt with by the allocation of Class I Redeemable Preference Shares in Marlu to a nominee of Bishdun, namely Bishop Contracting. Marlu was to make payments to Bishdun in tranches, payable quarterly (Redemption Payments). The making of each of the Redemption Payments was to operate as redemption of the redeemable preference shares. In addition to the Redemption Payments, a fixed cumulative preferential dividend of 7% per annum was payable to Bishop Contracting on the dates when the Redemption Payments were due. The Redemption Payments and the dividend payments, together, were defined in the Asset Sales Agreement as the Deferred Payments.

4    The Payment and Security Deed required Marlu to make the Deferred Payments to Bishop Contracting. As security for the making of the Deferred Payments, guarantees were given by three companies related to Marlu, namely Oz Base Nominees Pty Ltd (Oz Base), Marlu Health Pty Ltd (Marlu Health) and Marlu Resources Group Pty Ltd (Marlu Resources). Personal guarantees were also given by the two directors of Marlu, Alex Bruce McPhee and Saturn Manu Turnbull. Marlu granted a general security interest over all its property in favour of Bishop Contracting. And Oz Base, the owner of Marlu’s remaining share capital, granted a specific security interest over 100% of its shares in Marlu in favour of Bishop Contracting.

5    Completion of the Asset Sale Agreement occurred on 17 May 2024. Marlu took possession of the operating assets shortly thereafter.

6    One of the Deferred Payments was due to be made on 31 January 2025. Marlu commenced these proceedings on 28 January 2025. As at the hearing of Marlu’s application for interlocutory injunctive relief on 7 February 2025, Marlu had not made the payment.

7    The statement of claim filed in the proceedings alleges contraventions by Bishdun and the second, third and fourth respondents of ss 18 and 21 of the Australian Consumer Law (ACL), which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). The final relief sought by Marlu includes orders pursuant to ss 237 and 243 of the ACL, varying the amounts of the Redemption Payments under the Asset Sale Agreement and the Deferred Payments under the Payment and Security Deed.

Marlu’s application for interlocutory relief

8    Marlu included in its originating application filed on 28 January 2025 a claim for interlocutory relief. Prior to the hearing of its application for interlocutory relief, Marlu subsequently provided a draft minute of order containing a revised version of the interlocutory relief sought. Marlu sought an order that, until the final determination of the action or until further order:

(a)    Bishdun, by itself, its servants and agents, be restrained from:

(i)    treating the Asset Sale Agreement as having been breached or repudiated by reason of Marlu not making the Redemption Payments as set out in Schedule 7 of the Asset Sale Agreement; and

(ii)    enforcing any rights which arise upon the non-payment by Marlu of any Redemption Payments as set out in Schedule 7 of the Asset Sale Agreement;

(b)    Bishop Contracting, by itself, its servants and agents, be restrained from:

(i)    treating the Payment and Security Deed as having been breached or repudiated by reason of Marlu not making the Deferred Payments pursuant to cl 2.1 and Schedule A of the Payment and Security Deed;

(ii)    enforcing any rights which arise upon non-payment by the applicant of the Deferred Payments pursuant to cl 2.1 and Schedule A of the Payment and Security Deed, including its rights under the security documents referred to and executed pursuant to cll 3.1 to 3.5 and Schedule/Annexure B to F of the Payment and Security Deed; and

(iii)    enforcing any rights which arise upon an Event of Default pursuant to cl 4.12 of the Payment and Security Deed under cll 4.12 and 4.13 of the Payment and Security Deed and the security documents referred to and executed pursuant to cl 3.1 to 3.5 and Schedule/Annexure B to F of the Payment and Security Deed.

9    Marlu has proffered an undertaking as to damages. No interlocutory relief is sought against the second, third or fourth respondents.

10    On 7 February 2025, the application for interlocutory relief was argued before me as duty judge. At the conclusion of the hearing, I made interim orders pending the determination of the application for interlocutory relief, in terms equivalent to the interlocutory injunctions identified by Marlu in its draft minute of order. Judgment on the question of whether interlocutory relief should be granted on a continuing basis was reserved.

11    At the hearing, the parties pointed out that the Agreements conferred a wide range of rights on Bishdun and Bishop Contracting in the event of non-payment of the Deferred Payments. Marlu tended to emphasise rights conferred on Bishdun and Bishop Contracting the exercise of which could have serious and irreversible adverse consequences for Marlu and its related parties. The respondents emphasised that Bishdun and Bishop Contracting were not bound to exercise any or all of those rights, and that injunctive relief preventing them from exercising any of their rights in the event of non-payment of the Deferred Payments would be prejudicial to the respondents.

12    In the course of the hearing, I asked Marlu to identify the particular rights which arise on non˗payment of the Deferred Payments which it contends would lead to serious and irreversible harm. On 11 February 2025, Marlu provided a further minute of proposed orders which more selectively identified conduct which it sought to have restrained, and which it submitted would result in serious and irremediable prejudice to Marlu. On 13 February 2025, the respondents provided further short written submissions in relation to those proposed orders. The orders identified in Marlu’s minute of 11 February 2025 are as follows:

Definitions

In these orders:

1.    Asset Sale Agreement means the Asset Sale Agreement dated 26 April 2024 (as annexed at JJ-11 of the First Jean-Louis Affidavit).

2.    Deed of Guarantee and Indemnity (Companies) means the Deed of Guarantee and Indemnity dated 26 April 2024 to which Oz Base, Marlu Health Pty Ltd, and Marlu Resources Group Pty Ltd are parties (as annexed at JJ-13 of the First Jean-Louis Affidavit)[.]

3.    Deed of Guarantee and Indemnity (Personal) means the Deed of Guarantee and Indemnity dated 26 April 2024 to which Saturn Manu Turnbull, and Alex Bruce McPhee are parties (as annexed at JJ-14 of the First Jean-Louis Affidavit)[.]

4.    First Jean-Louis Affidavit means the Affidavit of Jacques-Benoit Jean-Louis dated 28 January 2025.

5.    General Security Deed means the General Security Deed dated April 2024 (as annexed at JJ-15 of the First Jean-Louis Affidavit).

6.    Oz Base means Oz Base Nominees Pty Ltd (ACN 646 665 974) as trustee for Monaro Holdings Trust Fund (ABN 68 823 241 465).

7.    Payment and Security Deed means the Payment and Security Deed dated 26 April 2024 (as annexed at JJ-12 of the First Jean-Louis Affidavit).

8.    Payments means the Redemption Payments set out in Schedule 7 to the Asset Sale Agreement and/or the Deferred Payments as defined in cl. 1.1 and set out in Annexure A of the Payment and Security Deed.

9.    Specific Security Deed means the Security Deed for Security Interest Shares in Marlu Transport Solutions Pty Ltd dated April 2024 (as annexed at JJ-16 of the First Jean-Louis Affidavit).

10.    Applicant Related Entities means Oz Base, Marlu Health Pty Ltd, Marlu Resources Group Pty Ltd, Saturn Manu Turnbull, and Alex Bruce McPhee.

The Applicant claims interlocutory relief:

…

2.    Until the final determination of this action, or until further order, the First Respondent and/or Fifth Respondent, by itself, its servants and agents and assignees, be restrained from:

a.    taking steps to:

i.    transfer Oz Base’s shares in the Applicant to the Fifth Respondent pursuant to cl 3.5(b) and (c) of the Payment and Security Deed;

ii.    sell the Collateral (as defined in cl 1.1 of the Specific Security Deed), pursuant to cl 7.2 of the Specific Security Deed;

iii.    appoint an external controller of all or any part of the Collateral (as defined in cl 1.1 of the Specific Security Deed) or Oz Base[;]

b.    appointing a person or persons to be:

i.    Controller, including an External Administrator (as defined in cl 1.1 of the General Security Deed), of all or any part of the Collateral (as defined in cl 1.1 of the General Security Deed) or the Applicant’s income pursuant to cl 12.1(a)(i) of the General Security Deed or otherwise;

ii.     a director of the Applicant pursuant to cl 4.2.2 of the Asset Sale Agreement and/or cl 4.10 of the of the Payment and Security Deed;

iii.    an observer of board meetings of the Applicant pursuant to cl 4.9 of the of the Payment and Security Deed at which the conduct of or advice in relation to these proceedings is to be discussed or dealt with;

c.    exercising any rights as Attorney pursuant to the Powers of Attorney granted under:

i.    cl 5.1 of the Payment and Security Deed;

ii.    cl 14 of the Deed of Guarantee and Indemnity (Corporate);

iii.    cl 13 of the Deed of Guarantee and Indemnity (Personal);

iv.    cl 21 of the General Security Deed; and

v.    cl 9.1 of the Specific Security Deed,

to cause or effect the Payments to be made;

d.    exercising any powers under [cll] 10.1, 10.2 or 10.4 of the General Security Deed to cause or effect the Payments to be made;

e.    exercising any powers to access, inspect, copy or receive information and documents of the Applicant or Applicant Related Entities related to or incidental to the conduct of these proceedings, including those protected by legal professional privilege, including but not limited to those powers under:

i.    [cll] 4.7, 4.8, 4.9(b) and 10.3 of the of the Payment and Security Deed; and

ii.    cl 5.2 and 5.3 of the General Security Deed[;]

f.    exercising the powers set out in:

i.    cl 11.5(a) of the General Security Deed;

ii.    cl 4.13(a)(ii) of the Payment and Security Deed;

g.    exercising any statutory, common law or equitable right or power, as exists at law or as set out or referred to in cl 4.13(d) of the Payment and Security Deed to:

i.    terminate the Asset Sale Agreement or Payment and Security Deed for repudiation based upon any failure by the Applicant or Applicant Related Entities to make the Payments;

ii.    enforce any securities which may subsist as regards the assets of the Applicant and Applicant Related Entities, including but not limited to any such securities which may fall outside the scope of the Personal Properties Security Act 2009 (Cth) such as equitable liens[;]

h.    exercising powers to seize, retain, dispose of or sell collateral under the Personal Properties Security Act 2009 (Cth) with respect to the security interests granted by the Applicant or the Applicant Related Entities to the Fifth Respondent pursuant to the Payment and Security Deed, the General Security Deed or the Specific Security Deed or otherwise.

13    For the reasons that follow, I will make orders granting certain interlocutory injunctive relief, but on terms that are more limited than the relief sought by Marlu, and different in certain respects from that set out in the minute of 11 February 2025.

Relevant provisions of the Asset Sale Agreement and the Security Deeds

The Asset Sales Agreement

14    Under the Asset Sale Agreement, the “Buyer” is defined as Marlu and the “Seller” is defined as Bishdun. Clause 3.1 of the Asset Sale Agreement provides as follows:

3.1    Sale of Business Assets

Subject to clause 2, on the Completion Date the Seller and Malcolm must sell and the Buyer must buy the Business Assets for the Purchase Price free of all Encumbrances and other third party rights.

15    Clauses 4.1 and 4.2 of the Asset Sale Agreement provide the following:

4.    Purchase Price

4.1    Apportionment of Purchase Price

Subject to any adjustments referred to in clause 4.4 (and clause 9.4 if applicable), the Purchase Price of the Business Assets will be apportioned as follows:

4.1.1    Fixed Assets     $11,000,000 (subject to valuation per Clause 4.4.3             below)

4.1.2    Goodwill    $2,000,000

Total        $13,000,000

4.2    Payment

4.2.1    Upon the Completion date, the Buyer must pay an amount equal to 60% of the Purchase Price being the sum of $7,800,000 in Immediately Available Funds to the Seller’s Lawyer, on account of the Purchase Price, which is to be held in accordance with clause 4.3 (Trust Amount).

4.2.2    Upon Completion the Buyer will allocate Class I Redeemable Preference Shares in itself; being Marlu Transport Solutions Pty Ltd; in the equivalent of 40% of it’s [sic] shares on issue to a party nominated by the Seller (Seller Shares), in order to represent the remaining $5,200,000 of the Purchase Price on the terms set out in Schedule 7. The Seller Shares will be set with 15 tranches of maturity dates commencing on the Completion Date together with a fixed cumulative preferential dividend at the rate of seven percent (7%) p.a. being paid on the dates set out in Schedule 7. Further, they will carry representation rights to appoint one (1) director to the board of the Buyer; if so desired; and that right shall remain until the quantum of remaining Seller Shares held on behalf of the Seller falls below the equivalent of 5% of the shares on issue.

16    Clause 4.4.3 of the Asset Sale Agreement provides:

4.4    Adjustment to Purchase Price

    At Completion, the Purchase Price will be adjusted as follows:

…

4.4.3    (Fixed Assets – Equipment) plus or minus normal valuation adjustments in relation to equipment, based upon the Slattery’s valuation report shared on 5th April, 2024. The parties acknowledge and agree that all adjustments up or down resulting from this sub-clause have already been reflected pro-rata proportionately in the first three Redemption Payments set out in Schedule 7 and no further adjustment is to occur.

…

17    The present significance of cl 4.4.3 is that it indicates that the ultimate purchase price was fixed (and consequently the Redemption Payments were to be fixed) by reference to the valuation of Slattery Valuations Australia Pty Ltd (Slattery) dated 5 April 2024 (Second Slattery Valuation).

18    Clause 9.5 of the Asset Sale Agreement provides:

9.5    No warranty regarding condition of Fixed Assets

The Buyer has satisfied itself as to the condition and suitability of the Fixed Assets and their fitness for purpose. The Buyer acknowledges and agrees that the Fixed Assets are sold by the Seller on an “as is, where is” basis and no representations, promises or warranties whatsoever are or have been given by the Seller (or any agent or officer of the Seller) or will be implied with respect to the condition, state of repair or suitability of the Fixed Assets or any part of the Fixed Assets or as to the nature or condition of the Fixed Assets.

The Payment and Security Deed

19    In the Payment and Security Deed, the defined term “MD Bishop Trust” is used to refer to Bishop Contracting as trustee for the MD Bishop Trust.

20    Clauses 2.1 and 2.3 of the Payment and Security Deed provide as follows:

2.    Payment of Deferred Payments

2.1    Payment of the Deferred Payments

(a)    Marlu must pay to MD Bishop Trust the Deferred Payments, free from any deductions whatsoever, by way [sic] the payments on the dates and in the amounts specified in Schedule A to this Deed. Time is of the essence with respect to each of the Payments. Marlu is relieved from the obligation to pay the Deferred Payments under this Deed in so far as Marlu has made payment of the Deferred Payments under the terms of the redeemable preference shares set out in the Sale Agreement.

(b)    Should Marlu make any early Deferred Payments, then the dividend interest calculations in Schedule A will be adjusted accordingly.

…

2.3    References to Deferred Payments

The parties acknowledge and agree that the due dates for payment of the dividends referred to in paragraph (b) of the definition of Deferred Payments in clause 1.1. shall be as set out in Schedule A notwithstanding that those dates are not set out in Schedule 7 of the Sale Agreement.

21    Clause 3 of the Payment and Security Deed provides, in cl 3.1, that each of the Corporate Guarantors – defined to mean Oz Base, Marlu Health and Marlu Resources – must execute guarantees in particular terms at the same time as entering into the Payment and Security Deed. Clause 3.2 imposed an equivalent obligation on the Personal Guarantors, being the directors of Marlu, Mr McPhee and Ms Turnbull, to execute personal guarantees. All of the corporate and personal guarantors were parties to the Payment and Security Deed.

22    Other relevant provisions of cl 3 of the Payment and Security Deed are as follows:

3.    Security

…

3.3    General Security Agreement

(a)    Marlu must, at the time of entering into this Deed, execute a general security agreement on the terms set out at Annexure D and provide an executed copy to MD Bishop Trust (“General Security Agreement”).

(b)    MD Bishop Trust will, promptly upon receipt, execute the General Security Agreement and return a fully executed and dated copy of the General Security Agreement to Marlu.

(c)    MD Bishop Trust may register the security interest granted to MD Bishop Trust under the General Security Agreement on the Personal Property Security Register held under the PPSA, without requirement for notice of any kind, if any Event of Default occurs. Until an Event of Default occurs, MD Bishop Trust will not undertake any such registration.

(d)    Until registration of the security interest granted to MD Bishop Trust under the General Security Agreement, MD Bishop Trust will have an equitable security interest in all Assets of Marlu.

3.4     Specific Security Agreement

(a)     Oz Base must, at the time of entering into this Deed, execute a specific security agreement on the terms set out at Annexure E and provide an executed copy to MD Bishop Trust (“Specific Security Agreement”).

(b)     MD Bishop Trust will, promptly upon receipt, execute the Specific Security Agreement and return a fully executed and dated copy of the Specific Security Agreement to Oz Base.

(c)     MD Bishop Trust may register the security interest granted to MD Bishop Trust under the Specific Security Agreement on the Personal Property Security Register held under the PPSA without requirement for notice of any kind at any time.

3.5    Share Transfer

(a)    Oz Base must, at the time of entering into this Deed, execute [sic] share transfer form, on the terms set out at Annexure F, in relation to the Marlu Shares and provide executed copies of each to MD Bishop Trust (“Share Transfer Form”).

(b)    Oz Base hereby irrevocably authorises MD Bishop Trust (or its solicitor or agent) to complete the Share Transfer Form and notify ASIC of the transfer of the Marlu Shares, in accordance with the Share Transfer Form without requirement for notice of any kind, if any Event of Default occurs.

(c)    MD Bishop Trust may notify ASIC of the transfer of the Marlu Shares, in accordance with the Share Transfer Form, if any Event of Default occurs and take any other steps as necessary or appropriate to vest ownership of the Marlu Shares in MD Bishop Trust.

…

23    As is apparent from the terms of cll 3.3, 3.4 and 3.5, certain rights of Bishop Contracting are expressed to arise if an “Event of Default” occurs. The definition of “Event of Default” is provided by cl 4.12, which also has substantive effect in providing for one consequence of an Event of Default. Most (but not all) of the other consequences of an Event of Default are stated in cl 4.13. Clauses 4.12 and 4.13 of the Payment and Security Deed provide as follows:

4.    Marlu, Company Guarantors and Personal Guarantors Obligations

…

4.12    Events of Default

Notwithstanding anything contained in this Deed, the Outstanding Deferred Payments and all interest thereon shall become immediately due and payable to MD Bishop Trust in the event that:

(a)    default is made by Marlu in the due payment of any of the Deferred Payments or interest thereon or any instalment or part thereof respectively and any such defaults continue un-remedied for a period of not less than seven days;

(b)    default is made under the Sale Agreement (other than by MD Bishop Trust);

(c)    any representation or warranty made in connection with or pursuant to this Deed or any statement or report concerning the assets, liabilities and the financial condition of Marlu shall prove at any time to have been or to be incorrect inaccurate or misleading in any material respect;

(d)    Marlu defaults in the performance or observance of any term, covenant or agreement contained in this Deed and such default if capable of remedy continues un-remedied for seven days;

(e)    any term condition or provision of this Deed is or becomes void, voidable, illegal, invalid or unenforceable or Marlu alleges or any court decides that any such term, condition or provision is void, voidable, illegal or invalid or unenforceable;

(f)    a liquidator, receiver, receiver and manager or official manager is appointed in respect of Marlu or any of its assets;

(g)    without the prior written consent of MD Bishop Trust a compromise, arrangement or scheme is proposed or entered into between Marlu and their creditors or any class of them;

(h)    any distress or execution in an amount in excess of $1,000.00 shall be levied against the property or any part of the property of Marlu and same is not satisfied within fourteen days; or

(i)    the effective control of Marlu shall without the previous consent in writing of MD Bishop Trust change in any respect and which in the opinion of MD Bishop Trust shall be detrimental to the interest of MD Bishop Trust;

each of the above being an Event of Default.

4.13    Consequences of Event of Default

(a)    Marlu hereby expressly covenants and agrees with MD Bishop Trust that if any Event of Default occurs, then:

(i)    the Outstanding Deferred Payments together with all interest thereon shall upon written demand given by MD Bishop Trust to Marlu become and be immediately due and payable to MD Bishop Trust without requirement for further notice of any kind and upon MD Bishop Trust making such demand the same together with any other moneys due and payable under this Deed (and any legal costs incurred by MD Bishop Trust on a solicitor own basis as a result of the default) shall forthwith be paid by Marlu to MD Bishop Trust and if such moneys are not so paid by Marlu to MD Bishop Trust then MD Bishop Trust shall be entitled to exercise all or any of its rights or remedies at law or in equity; and

(ii)    MD Bishop Trust, as chargee of the Assets, may take such lawful action with respect to the Assets in order to recover the Outstanding Deferred Payments.

(b)    If any one or more Event of Default occurs, then interest at the Default Interest Rate on any amount owing by Marlu to MD Bishop Trust on and from the occurrence of the event shall compound daily.

(c)    No failure or delay on the part of MD Bishop Trust in exercising any right, power or remedy herein shall operate as a waiver therefore nor shall any exercise of such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy herein.

(d)    The rights and remedies conferred by this Deed upon MD Bishop Trust shall not be deemed exclusive but shall be cumulative and in addition to all other rights and remedies available to MD Bishop Trust by law by virtue of any guarantees or indemnities or any other documents agreements or obligations entered into previously or at any future time by Marlu or any other person for the benefit of MD Bishop Trust or by any securities, legal or equitable, now or to be held by MD Bishop Trust in connection therewith.

(e)    For the avoidance of doubt, the parties acknowledge and agree that nothing in this Deed prevents MD Bishop Trust from taking any action against Marlu under the terms of the Sale Agreement or under this Deed to recover the Outstanding Deferred Payments if any Event of Default occurs.

24    The effect of cl 4.12(a) of the Payment and Security Deed was, all parties accepted, that the full amount of all the outstanding Deferred Payments would become payable if Marlu defaulted on its obligation to make payment of the first of the Deferred Payments, which was due on 31 January 2025, and if that default continued for at least seven days. That in fact occurred on or around 7 February 2025. There is therefore no dispute that an Event of Default, as defined in cl 4.12, has now occurred. It is therefore unnecessary for present purposes to consider whether an Event of Default for the purposes of the Payment and Security Deed first occurred immediately when Marlu failed to make the 31 January 2025 Deferred Payment when it was due (for example, by reason of cl 4.12(b)), or only once a further seven days had passed.

25    Clause 5.1 of the Payment and Security Deed provides that each of the Corporate Guarantors and Personal Guarantors irrevocably appoints Bishop Contracting (and each of its officers) as its attorney to do things on behalf of the Corporate Guarantors and the Personal Guarantors in order to secure the performance by each of them of their obligations under any of the Agreements to which they are a party.

The General Security Deed

26    Under the General Security Deed, Marlu is the “Grantor”, and “Relevant Party” is defined to include Marlu. Clause 8.1 of the General Security Deed provides for circumstances that constitute an “Event of Default” for the purposes of the General Security Deed. Most immediately relevant are the following provisions:

8.     Default by the Grantor

8.1    Events of Default

An Event of Default occurs if any one or more of the following occurs:

(a)    (non-payment) a Relevant Party fails to pay any amount payable by it under any Related Document, in the way and in the currency required, when due;

…

(f)    (cross default – Related Document) an event of default (however described) occurs under any Related Document;

…

27    “Related Document” is defined to include the Asset Sale Agreement and the Payment and Security Deed. The effect of cl 8.1 is that a failure to make any of the Deferred Payments constitutes an Event of Default for the purposes of the General Security Deed. There is no dispute between the parties that failure by Marlu to make the first of the Deferred Payments on 31 January 2025 (at least after that failure had continued for seven days) was an Event of Default under the General Security Deed.

28    Clause 11 of the General Security Deed entitles Bishop Contracting – referred to in the General Security Deed as the “Secured Party” – to exercise certain rights if an Event of Default has occurred or if Bishop Contracting reasonably believes that to be the case. Insofar as it is directly relevant to the arguments raised on the application for interlocutory injunctive relief, it provides:

11.    Secured Party’s powers

11.1    Investigation of Event of Default

(a)    If the Secured Party reasonably believes an Event of Default may have occurred (whether or not it is subsisting), the Secured Party may engage an appointee (“Appointee”) to do any one or more of the following:

(i)    investigate and report to the Secured Party on the Collateral, affairs, financial condition, assets and business of the Grantor;

(ii)    after given written notice inspect the records (and take copies of them), Collateral and assets of the Grantor during normal business hours; and

(iii)    value a Collateral, business or asset of the Grantor.

(b)    The Grantor agrees to co-operate with any Appointee, comply with each reasonable request of an Appointee and pay the costs of each Appointee. The Grantor releases the Secured Party, their affiliates, agents, employees, officers and any Appointee from any loss, liability, cost or expense that is causes [sic] (directly or indirectly) by anything that an Appointee does or does not do arising out of the provision of a service to the Secured Party.

…

11.3    Circumstances when this Deed may be enforced

If an Event of Default is subsisting, the Secured Money will immediately become payable at the Secured Party’s option (despite any delay or previous wavier of the Right to exercise that option) and this Deed will immediately become enforceable (whether or not the Secured Money has become payable in this manner).

…

11.5    Powers on enforcement

(a)    If this Deed has become enforceable pursuant to clause 11.3 or otherwise, then the Secured Party, any of their Authorised Representatives, or a Controller (except to the extent specifically excluded by the terms of appointment), may do anything in respect of the Collateral that an absolute beneficial legal owner of the property could do, which includes the power to do any of the following, in addition to anything else the law or this Deed allows the Secured Party to do:

(i)    seize, take and retain possession of, get in and manage the Collateral (or any part of it);

(ii)    sell any of the Collateral (whether or not physical possession has been taken by the Secured Party or Controller). Without limitation, any sale may be made:

A.     by public auction, private treaty or tender

B.    for cash or on credit

C.    in one lot or in parcels

D.    either with or without special conditions or stipulations as to title or time or mode of payment of purchase money or otherwise

E.    with power to allow the whole or any part of the purchase money to be deferred (whether with or without any security), and

F.    whether or not in conjunction with the sale of any property by any person;

…

(v)    carry on or concur in carrying on any business of the Grantor;

…

(xviii)    commence, defend, conduct, settle, discontinue or compromise proceedings in the name of the Grantor or otherwise;

…

29    To appreciate the scope of the rights conferred by cl 11 on Bishop Contracting, it is necessary to appreciate the breadth of the definition of the “Collateral”. Clause 1.1 of the General Security Deed defines “Collateral” in the following terms:

Collateral means all of the Grantor’s rights, property and undertakings of whatever kind and wherever situated (circulating and non-circulating) and whether present or after-acquired, including all real and personal property of the Grantor.

30    As Marlu submits, the definition of “Collateral” is very broad, extending to all rights, property and undertakings of any kind belonging to Marlu, and extending to all of its real and personal property. That evidently includes all of the operating assets acquired by Marlu pursuant to the Asset Sale Agreement insofar as they remain property of Marlu. It may be noted that, among other things, cl 11.5(1) confers on Bishop Contracting an entitlement, “in respect of” any of Marlu’s rights, or the operating assets, to carry on any business of Marlu or to settle, discontinue or compromise any proceedings in the name of Marlu. That would appear to include the present proceedings.

31    An additional power exercisable by Bishop Contracting if an Event of Default occurs, and while the default subsists, is found in cl 10.3 of the General Security Deed, which provides:

10.    Rights the Secured Party may exercise at any time

…

10.3    Secured Party may enter

The Secured Party or any person they authorise may inspect and copy the records of the Grantor related to the Collateral and inspect the premises of the Grantor and inspect the Collateral at any time while an event of Default subsists. The Grantor will do everything in its power to assist that inspection and copying and ensure that its employees and officers and their employees and officers do the same.

…

32    Clause 12.1 of the General Security Deed provides for Bishop Contracting to have the further right to appoint a controller over all or any part of the Collateral or its income:

12.    Appointment of a Controller

12.1    Appointment

(a)    If this Deed has become enforceable in accordance with clause 11.3 or otherwise, in addition to the powers in clause 11.5, the Secured Party or any Authorised Representative of the Secured Party may at any time:

(i)    appoint any person or any two or more persons individually or jointly and severally to be a Controller (or an additional Controller) of all or any part of the Collateral or its income;

(ii)    remove the Controller and in case of the removal, retirement or death of any Controller appoint another as a replacement; and

(iii)    fix the remuneration of the Controller at any figure the Secured Party determine appropriate.

(b)    Subject to clause 12.2 and the next sentence, every Controller appointed under this subclause will be the Grantor’s agent and the Grantor will be solely responsible for the Controller’s acts and defaults and remuneration and costs. The Secured Party may by notice to the Grantor and the Controller require the Controller to act as the Secured Party’s agent.

33    Clause 18.3 of the General Security Deed was also referred to in argument and should be noted. It provides:

18.    Preservation of Secured Party’s Rights

…

18.3    Suspension of Grantor’s rights

(a)    The Grantor:

(i)    waives any right to be subrogated to, or otherwise have the benefit of, this document until the Secured Money has been satisfied in full; and

(ii)    must not exercise a right of set-off or counterclaim which reduces or extinguishes the obligation of the Grantor to pay the Secured Money.

(b)    The Secured Party are not obliged to marshal in favour of the Grantor any security that the Secured Party have an interest in or may be entitled to receive.

The Specific Security Deed

34    The Specific Security Deed was executed by Bishop Contracting (defined as the “Secured Party”), Oz Base (defined as the “Grantor”) and Marlu (defined as the “Borrower”). The main operative provision of the Specific Security Deed is cl 3.1, which provides:

To secure the performance of the Grantor’s obligations under the Loan, including the due and punctual payment of the Secured Money, the Grantor grants a Security Interest in the Collateral to the Secured Party. This Security Interest is a charge.

35    The term “Collateral” was defined in cl 1.1 of the Specific Security Deed as follows:

Collateral means 100% of the shares in the Borrower being held by the Grantor at any time and from time to time whether being CHESS Securities, Certificated Securities or Uncertificated Securities.

36    The “Secured Money” was defined to mean, in effect, the Deferred Payments and all money owed, or which might come to be owed, by Oz Base to Bishop Contracting under any of the Agreements.

The Company Guarantee and the Personal Guarantee

37    The parties to the Company Guarantee are Oz Base, Marlu Health and Marlu Resources as “Guarantors”, Bishop Contracting as the “Creditor” and Marlu as the “Debtor”. The parties to the Personal Guarantee are Mr McPhee and Ms Turnbull as “Guarantors”, Bishop Contracting as the “Creditor” and Marlu as the “Debtor”. The central operative clause of each of the Company Guarantee and the Personal Guarantee is cl 3, which in each case is in the following terms:

In consideration of the Creditor executing the Sale Agreement and Security Deed at the request of the Guarantors (which request is evidenced by the Guarantors’ execution of this Deed), the Guarantors, jointly and severally:

(a)     guarantee to the Creditor that due and punctual observances and performance of all of the covenants, terms and conditions to be observed and performed by the Debtor pursuant to the Sale Agreement and Security Deed;

(b)     guarantee to the Creditor the due and punctual payment by the Debtor to the Creditor of the Secured Monies; and

(c)     hereby indemnifies the Creditor and agrees to keep it indemnified from and against all loss, damage, costs and expenses suffered or incurred by the Creditor by reason of any breach or non-performance by the Debtor of any of the covenants, terms and conditions to be observed and performed by the Debtor pursuant to the Sale Agreement and Security Deed.

Evidence

38    On the application for interlocutory injunctive relief, Marlu relies upon affidavits of:

(a)    the Chief Financial Officer of Marlu, Jacques-Benoit Jean-Louis, dated 28 January 2025;

(b)    Mr Jean-Louis dated 30 January 2025;

(c)    Mr Jean-Louis dated 5 February 2025;

(d)    Mr Jean-Louis dated 6 February 2025;

(e)    the General Manager of Marlu, Christoffer Mattias Pettersson dated 30 January 2025;

(f)    Marlu’s solicitor, Jason Kristyan De Silva, dated 5 February 2025;

(g)    Marlu’s solicitor, Jennifer Woodford, dated 30 January 2025;

(h)    Ms Woodford dated 5 February 2025; and

(i)    Ms Woodford dated 6 February 2025.

39    The respondents rely upon the affidavit of the second respondent, Mr Bishop, dated 5 February 2025. Mr Bishop is also the co-director, co-shareholder and secretary of each of Bishdun and Bishop Contracting.

Serious question to be tried

Principles

40    Marlu does not claim that the Asset Sale Agreement is void and does not seek orders declaring the Agreements void. Rather, it contends that one or more of the respondents acted in contravention of the ACL, and the final relief it seeks would have the Court vary the terms of the Asset Sale Agreement and the Payment and Security Deed, so as to reduce the purchase price. If Marlu established a contravention of the ACL, the Court would be empowered to make such additional or other orders as it thought appropriate, in accordance with ss 237 and 241 of the ACL.

41    Marlu contends that its application raises a serious question to be tried. Marlu is required to establish a sufficient likelihood of success to justify the preservation of the status quo pending trial. The strength of the case that must be established depends on the nature of the rights asserted by the applicant and the practical consequences that will flow from the granting of the injunctive relief sought: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 81-2 [65], 83 [70].

42    Generally speaking, the strength of the applicant’s case is to be assessed by reference to the evidence adduced by the applicant. The Court does not, on an application for an interlocutory injunction, determine disputed questions of fact, or attempt to resolve conflicts between the evidence adduced by the applicant and by the respondents, or carry out a “preliminary trial”: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-3. In Warner-Lambert Company LLC v Apotex Pty Ltd (2014) 311 ALR 632; [2014] FCAFC 59, the Full Court quoted with approval (at 648 [72]) the following passage from the judgment of Mahoney JA (with whom Glass and Samuels JJA agreed) in Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 at 734:

But there are limitations upon the extent to which a judge is to take into account such evidence as the defendant may tender upon an interlocutory application. It is not his function to conduct a preliminary trial of the action, nor is it, in general, to resolve the conflict between the parties’ evidence, and grant or refuse the application upon the basis of such findings. Where there is conflict of evidence, the use which may be made of the defendant's evidence in determining whether the plaintiff has made out a prima facie case is a limited one. For example, the plaintiff’s evidence, considered alone, may be such a prima facie case as would be acceptable if submitted to a jury in a trial. But, when considered in the light of the defendant's evidence, it may be explained away so as no longer to be such. Or the defendant's evidence, when juxtaposed to that of the plaintiff may show that there is in reality no such case, no real question between the parties, appropriate to warrant preserving the status quo until the hearing.

The evidence adduced by Marlu

43    The evidence adduced by Marlu indicates that, in November 2023, Marlu commenced negotiations with Bishdun to purchase the Nighthawk Transport business as part of a strategy of expanding its business interests.

44    The operating assets of the Nighthawk Transport business, including, in particular, the vehicles in its fleet, are central to the operation of the business. In the leadup to the entry of the sale of the Nighthawk Transport business, Marlu was provided with a valuation undertaken by Slattery in October 2022 which valued the operating assets at $11,657,000 at that time. Clause 4 of the Asset Sale Agreement contemplated that the purchase price for the business would be $13,000,000, comprising $2,000,000 in goodwill and $11,000,000 in respect of the operating assets. The value of the operating assets was to be adjusted to accord with a further valuation of the operating assets undertaken by Slattery, the Second Slattery Valuation.

45    Marlu’s case is that, as the adjusted purchase price was to be determined by an independent valuation, Bishdun must be taken to have known and understood that the Second Slattery Valuation would be relied upon by Marlu, and that the conduct of Bishdun and related parties in the course of the valuation and in their dealings with the valuer would be reflected in the Second Slattery Valuation.

46    Marlu also claims that Bishdun made representations to Marlu which were false or misleading. Mr McPhee and Mr Jean-Louis, on behalf of Marlu, attended site visits at the Darwin and Catherine depots of the Nighthawk Transport business. Mr Jean-Louis deposes to the fact that some of the assets – that is, vehicles – were not available for inspection at that time, which accorded with what would be expected in the ordinary course of business. Mr Jean-Louis states that Bishdun’s directors, Mr Bishop and Ms Dunning, stated that the assets were well maintained and that Mr Bishop described them as his “pride and joy”. Mr Jean-Louis claims that Marlu was led to believe that the vehicles were serviced and maintained regularly and repaired quickly.

47    On 1 December 2023, Marlu made a non-binding indicative offer (NBIO) to Bishdun for the purchase of the Nighthawk Transport business. The NBIO was executed by Mr McPhee on behalf of Marlu and by Mr Bishop and Ms Dunning on behalf of Bishdun. The NBIO identified the intended purchase price of $13,000,000 and included the statement: “The upfront consideration is based upon finance approval and confirmation of the valuation of the plant and equipment at $11,000,000.” The NBIO also stated: “Up until the settlement date the vendors must carry on the business in a normal, proper and efficient manner not significantly different from the manner in which the business has been carried on prior to this NBIO being entered into.” Although not contractually binding, Marlu contends that this statement constituted a representation by Bishdun that it would continue to conduct the business in a manner that involved maintaining and repairing vehicles to an appropriate standard.

48    The Second Slattery Valuation was dated 5 April 2024 and valued the operating assets at $10,717,750. That was adjusted to reflect the omission of certain assets from the sale which had been included in the Second Slattery Valuation. The Second Slattery Valuation stated (among other things) that it was based on certain assumptions, including “that all equipment had standard features commensurate with its normal operation”, and that:

In some instances, values may have been ascribed to items in this report on a “site unseen” basis due to an inability to access or other limiting factors. Accordingly, we have relied upon information and descriptions provided by staff or third parties and unless otherwise advised, valued each asset on the basis that it is in fair and reasonable condition and free of any major default or defect which may have an effect on its value.

49    Under the heading, “Full Disclosure”, the Second Slattery Valuation stated:

The valuation has been prepared in good faith on the basis that full disclosure of all information and salient points which may affect the valuation have been disclosed.

50    The Second Slattery Valuation, in a section entitled “valuer assignment notes”, stated:

Overall, the fleet presents in average condition for age and use. There are some assets that are in various states of disrepair. Where we have been advised that the repairs will be completed, we have assigned values as such. Otherwise noted that the vehicle will not be repaired. … It has been assumed that all necessary maintenance and repairs will be completed as advised or as per OEM specifications.

51    The evidence adduced by Marlu (albeit indirectly at this stage, through information provided by Slattery to Mr Jean-Louis) suggests that the relevant staff members of Bishdun who were present during the valuation and who provided information to Slattery were the fourth respondent, Lloyd Daniels, and Wayne Thomas. Marlu contends that the effect of the representations made by Bishdun to Slattery was that the vehicles were in average or reasonable condition except where this was noted; that, except where noted, where vehicles were in need of repair, those repairs would be completed before the operating assets were provided to Marlu; and that the assets had been, and Bishdun knew they had been, valued in reliance on those assumptions.

52    The Second Slattery Valuation identified and assigned values to particular assets, and included notes regarding some of them. For example, in respect of certain assets it was noted that they were “valued as if complete and operational”. In relation to some assets the words “restricted assessment” indicated assets that had not been sighted but had been valued on the basis that they were in reasonable condition.

53    Mr Jean-Louis and Mr Pettersson depose to what they considered to be the poor condition of the operating assets shortly after the handover in May 2024. The evidence adduced by Marlu includes observations made by Mr McPhee to Mr Jean-Louis to the effect that many of the vehicles were in poor condition and appeared not to have been maintained or repaired as would be required in the ordinary course of business.

54    Mr Pettersson states as follows as to his observations of the assets on first travelling to the Darwin depot in June 2024:

Generally, I observed that most of the assets were not in good condition and required repairs and maintenance.

Some of the assets had no clutch, broken steering boxes, ripped interiors and needed brake re linings. Trailers and dollies had straps holding mudguards and toolboxes together. There were assets that were in such poor condition they were unrepairable and “scrap”.

I estimate that about three quarters of the vehicles and trailers had issues requiring repairs or maintenance. I base this on my many conversations with mechanics, truck drivers, as well as my own physical inspection of the vehicles acquired by Marlu.

From my conversation with mechanics and drivers, significant works were required to be carried out on these assets to get them in working order.

55    Mr Pettersson gives examples of assets that were not in working order. He deposes to conversations he has had with a former employee of Bishdun and with truck drivers engaged in the Nighthawk Transport business, from which (if his evidence is accepted) it could be inferred that Bishdun had been aware that some of the assets (including assets recorded as “not sighted” for the purposes of the Second Slattery Valuation) had required repairs in the ordinary course of the business, and had not repaired them.

56    In July 2024, Mr Pettersson produced a spreadsheet identifying 17 specific assets which he had by then “identified as being in an obvious and noticeable state of disrepair”. Mr Pettersson provided the spreadsheet to Mr Jean-Louis. In July 2024, Mr Jean-Louis sent an email to Slattery, attaching the spreadsheet prepared by Mr Pettersson, and stating that “we have determined issues with some of the assets (per the spreadsheet attached) that were not disclosed to [the valuers] upon their inspection and final valuation”. The spreadsheet recorded, in relation to each of the 17 assets, the comments (if any) that had been provided in relation to the asset in the Second Slattery Valuation, as well as Mr Pettersson’s assessment of the condition of the asset in July 2024.

57    Marlu also adduced evidence of the “Gearbox” electronic app and record-keeping system that is used in the Nighthawk Transport business for the purpose of recording the history of vehicles, issues with vehicles, and repairs and maintenance undertaken on vehicles. It is possible to consider the notes recorded in the Gearbox system in relation to a particular identifiable asset against the information recorded in the Second Slattery Valuation in relation to the same asset and the information recorded by Mr Pettersson in relation to that asset in July 2024.

58    For example, an extract from an entry in the Gearbox system in relation to one particular asset shows that, on 1 February 2024 (before the Second Slattery Valuation), the following had been recorded in the system:

WTG reading of fault codes, analysis of engine statistics data, and checking of sensor values, the root cause of the engine rough running was identified as a damaged exhaust valve. Consequently, the recommended course of action is to replace the engine.

59    The Gearbox records did not indicate that any repair or replacement of the engine had occurred. In relation to that same asset, the Second Slattery Valuation contained the notation: “Not visible. Assumed average.” Mr Pettersson’s evaluation of the asset was: “Engine blown. Estimated repairs to be operational approximately 35,000 to 40,000.” Marlu submitted that this demonstrated that the asset had been valued on the basis that it was assumed by Slattery to be operational and in average condition; that it was known to Bishdun that Slattery had valued the asset on that basis and without seeing it; that Bishdun in fact knew that there had been a problem with the engine since February 2024 and that the recommended course of action was to replace the engine; and that the asset as provided to Marlu was in a condition such that, due to a problem with the engine, it required significant repairs in order to be operational. This was said to involve an intentional withholding of information about this asset.

60    I was shown another example of a comparison between Gearbox system entries made when the assets were owned by Bishdun, which recorded issues that had not been fixed, and the condition of those assets as recorded by Mr Pettersson. I was taken to a further example of an asset against which the Second Slattery Valuation recorded the comment: “Fridge unit under repairs at time of inspection, value as if complete and operational.” In respect of that same asset, an entry in the Gearbox system indicated that it had been assessed by a repairer who recorded on 1 February 2024 (ie, before the Second Slattery Valuation):

Beyond economical repair. Customer states engine U/S. Check unit, found many components missing. Fans tight. Inform customer unit beyond economical repair.

61    Marlu contends that it is to be inferred that the information that that fridge unit was under repair came from representations made to the valuers by an agent or employee of Bishdun, or at least was incorrect information recorded by the valuers that was not corrected by Bishdun, and that Bishdun knew that, in reality, the fridge unit had been assessed as “beyond economical repair”.

62    Following the provision of Mr Pettersson’s spreadsheet, Mr Jean-Louis asked the valuer who had prepared the Second Slattery Valuation to review the valuation of the 17 particular assets that had been identified by Mr Pettersson. Although he was not able to perform a full valuation, he provided an indicative revised valuation (or “desktop review”) of those assets based on Mr Pettersson’s comments on their condition. Mr Jean-Louis’ evidence highlights that this review indicates that:

(a)    the value of the 17 assets as recorded in the Second Slattery Valuation was $1,239,000;

(b)    the value of the same assets as reviewed is $423,000; and

(c)    that is a difference in value of $816,000, or 65.86%, in respect of those 17 assets.

63    Mr Jean-Louis notes that there are over 150 assets that were transferred to Marlu under the Asset Sale Agreement.

64    Mr Jean-Louis deposes to (and to some extent supports with additional evidence) the fact that the poor condition of the operating assets of the Nighthawk Transport business has had various adverse effects for Marlu, including that:

(a)    assets requiring repair, or which Marlu has abandoned due to their condition, have not been available to deploy on jobs and earn revenue;

(b)    at least partly as a result of not having the assets available to earn revenue, Marlu does not have the cash flow to perform all required repairs to the fleet at once;

(c)    some assets requiring repairs have now been repaired, at significant cost to Marlu;

(d)    most of the assets that were available to be deployed were required to be serviced before they could be deployed, and this impacted on Marlu’s cash flow;

(e)    Marlu had not been able to service all of the existing customers of the Nighthawk Transport business due to the inability to deploy all of the assets, and consequently some customers had engaged a competitor and were considered unlikely to return their business to Nighthawk Transport; and

(f)    due to these matters, Marlu had been unable to earn similar revenue as had previously been earned by the Nighthawk Transport business and, as I understand his evidence, Mr Jean-Louis estimates that Marlu’s lost revenue since the acquisition of the business exceeds $3,000,000.

The evidence adduced by the respondents

65    It is necessary to note that significant aspects of the evidence adduced by Marlu are contested by the respondents. Mr Bishop’s affidavit evidence is to the effect that Marlu was not prevented from inspecting the operating assets, or from conducting further inspections of assets that had not been present during the site visits, had Marlu sought to do so. Mr Bishop deposes that ordinary repairs were undertaken; that Bishdun did continue to maintain the assets until they were transferred to Marlu; and that Bishdun’s expenditure on repairs and maintenance in the period from December 2023 to May 2024 (ie, after negotiations for the sale of the Nighthawk Transport business commenced and the NBIO was signed) was comparable to its expenditure in the near-equivalent period from January 2023 to May 2023. Mr Bishop states that he finds it difficult to understand the inability of Marlu to make the Deferred Payments on the basis that Bishdun had run a profitable business using largely the same assets that Marlu now has.

66    While Mr Bishop’s evidence, if accepted at trial, is capable of providing a defence to the claims made by Marlu (and other arguments may also be available to Bishdun at trial), as noted above, it is not the role of the Court on an application for interlocutory relief to conduct a mini-trial or to determine which party’s evidence is likely to be accepted at trial.

Conclusions as to serious question to be tried

67    Marlu’s claim in the proceedings is based on ss 18 and 21 of the ACL. Section 18(1) provides that a person “must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”. Section 21(1) of the ACL provides:

A person must not, in trade or commerce, in connection with:

(a)     the supply or possible supply of goods or services to a person; or

(b)     the acquisition or possible acquisition of goods or services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

68    It is unnecessary for present purposes to consider the provisions in ss 21 and 22 which bear on the meaning of “unconscionable” and the matters to which a court must have regard in determining whether a person has contravened s 21(1).

69    A person breaches s 18 of the ACL if, in trade or commerce, they engage in conduct that is misleading or deceptive or likely to mislead or deceive. The principles relevant to establishing a breach of s 18 were recently summarised by O’Sullivan J in Chopsonion Pty Ltd (Controllers Appointed) v Watts Meat Machinery Pty Ltd (No 2) [2025] FCA 4 at [487]-[491].

70    Marlu seeks relief in accordance with ss 237 and 243 of the ACL, in addition to damages under s 236 of the ACL.

71    Marlu’s evidence is that the condition and value of the operating assets were central to its decision to purchase the Nighthawk Transport business. Marlu contends that Bishdun knew that Marlu would rely upon the Second Slattery Valuation in relation to the value of the operating assets – noting that the Slattery valuation was expressly referred to in the Asset Sale Agreement as the basis for identifying the value of the operating assets, and consequently the purchase price – and that information provided by Bishdun to Slattery in connection with the preparation of the Second Slattery Valuation would be relied upon by Marlu.

72    The evidence adduced by Marlu, if accepted, is capable of supporting a conclusion that Bishdun engaged in conduct that should be characterised as representing to Marlu – either directly or through conduct and representations made to Slattery – that the operating assets were in a reasonable condition and free from major unidentified defects that would have significantly impacted upon their value, except where those defects had been noted, and that (again, except where noted) any necessary repairs (at least to certain assets) would be completed before completion of the Asset Sale Agreement. The evidence adduced by Marlu, if accepted, is capable of establishing that at least some of the assets were not in a reasonable condition and that some were subject to substantial defects that adversely affected their value, and thus the overall valuation of the operating assets and the purchase price.

73    I consider that the evidence adduced by Marlu, although it is contested, establishes a sufficient basis to conclude that there is a serious question to be tried in relation to its misleading and deceptive conduct claim. My present impression is that Marlu’s claim based on misleading and deceptive conduct may be at least as strong as the claim based on unconscionable conduct. That may or may not turn out to be correct in the end, but I will proceed to consider the balance of convenience on the basis of my assessment of the strength of the misleading and deceptive conduct claim. It is not necessary to say more about the unconscionable conduct claim.

74    In this case, although I am satisfied that there is a serious question to be tried in the sense that I consider that Marlu, if its evidence remains as it is and is accepted at trial, may be able to establish a contravention of the ACL, it is necessary to consider more specifically the consequences of any such contravention on the assumption that Marlu does establish it, the nature of the final relief sought by Marlu, and the likely effect of the grant of that final relief.

75    I am prepared to accept that Marlu may ultimately be able to identify additional assets, beyond the 17 identified by Mr Pettersson in his list prepared in July 2024, the reported condition of which does not match the condition that was assumed or noted in the Second Slattery Report. However, I do not conclude that Marlu has established that the difference between the assumed value of the remaining assets and their actual value which could be attributed to the alleged misleading and deceptive conduct or unconscionability of the respondents would be as much as the total of the Deferred Payments. Mr Pettersson’s evidence does not identify particular assets, beyond the 17 initially identified, that are said to have been the subject of false or misleading representations. The assets listed by Mr Jean-Louis in his email to Slattery are likely to have been the most obviously affected by serious issues that affect their usability. Assets in respect of which a proper assessment has not been made because they are in use are unlikely to be affected by such serious issues. I take into account that the operating assets have been in the ownership of Marlu since May 2024, so (even taking into account operating considerations such as the effect of the seasons on the availability of assets) there has been a reasonable period of time available to Marlu to cause a physical assessment to be made of assets. There are also other means by which the condition of assets, and the knowledge of Bishdun as to their condition prior to completion of the Asset Sale Agreement, could be assessed – for example, by considering whether the Gearbox records for particular assets indicate that there were known faults that were not repaired prior to transfer.

76    I am not prepared to extrapolate the difference in value, identified in respect of 17 specific assets, on the assumption that a similar difference in value would apply to most of the operating assets. It seems unlikely that Marlu can establish, for example, that the value of the operating assets might have been as little as half of the value reflected in the purchase price (which would result in the value of the operating assets being around $5,200,000 and a revised purchase price of around $7,200,000), or by half of three-quarters of the value reflected in the purchase price (which would result in the value of the operating assets being around $6,500,000 and a revised purchase price of around $8,500,000).

77    However, Marlu’s case is that its capacity to operate the Nighthawk Transport business as profitably as it had expected has been affected by its inability to use certain assets to generate profit and by the expense of maintaining and repairing assets that were in worse-than-expected condition. That causal connection is disputed by Mr Bishop, who advances other hypotheses as to why the business has been less profitable in the hands of Marlu. That is a dispute that I will not resolve for the purpose of the present interlocutory application. Mr Bishop’s evidence is not such as to convince me that Marlu’s evidence, if accepted, could not establish a serious question to be tried. Although there is an element of speculation in this, I consider that there is a realistic prospect that, if the Court ultimately found that the purchase price was higher than it otherwise would have been due to a breach or breaches of the ACL by one or more of the respondents, and the condition of the assets has had a substantial negative impact on the capacity of Marlu to operate the business profitably, the Court may fashion final relief that would have the effect that Marlu was not to be regarded as having been in default of the Agreements due to its failure to make the Deferred Payments for so long as the proceedings were on foot.

78    This is the basis on which I shall proceed in assessing the remaining issues relevant to the grant of interlocutory injunctive relief.

The respondents’ submission regarding contractual allocation of risk

79    The first submission made by the respondents is that the effect of the relief sought by Marlu is to reverse the allocation of risk under the Asset Sale Agreement and the Security Deeds, so that, where Marlu defaults on payment, Bishdun and Bishop Contracting take on that risk, rather than Marlu. The respondents submit that this is contrary to, and would defeat, the commercial purpose of cll 4.12 and 4.13 of the Payment and Security Deed. It is submitted that those provisions “allocate the risk in favour of the respondents in the event of a payment default by [Marlu]”. They submit that the commercial purpose of those clauses is to establish that it is Marlu that “is to be out of pocket pending resolution of a dispute”.

80    The respondents submit that, if the commercial purpose of a contractual provision would be defeated, that must bear on the ultimate risk of injustice inherent in the grant of an injunction. They rely upon the decision of the Victorian Court of Appeal in Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98 at [34]-[35] for this proposition. They also submit that “[t]he fact that the dispute is not contractual and is a claim brought under the ACL ought not displace that principle”, although they do not identify any authority in support of that proposition.

81    The respondents submit that the application for interlocutory injunctive relief should be refused for this reason alone.

82    I do not accept this submission. First, I am not satisfied that the special rights conferred on Bishdun and Bishop Contracting by the Asset Sale Agreement and the Security Deeds upon the happening of an Event of Default were directed to the issue of which party should bear the risk pending determination of a dispute. The relevant terms of the Asset Sale Agreement and the Payment and Security Deed are not limited to means by which Bishdun and Bishop Contracting could ensure that they were not “out of pocket” while a dispute is pending. They appear to be directed to conferring far broader contractual rights on Bishdun and Bishop Contracting. They do not make any explicit reference to the position that should obtain pending a dispute; rather, they appear to be directed to reducing the risk that Bishop Contracting might not recover the full purchase price in the event of a default by Marlu, and to maximising the opportunity for Bishdun and/or Bishop Contracting to benefit from any default on the part of Marlu.

83    Some of the contractual rights conferred on Bishdun and Bishop Contracting by the Asset Sales Agreement and the Security Deeds are surprisingly advantageous to them. Their unilateral exercise by Bishdun or Bishop Contracting would potentially have the effect of entirely frustrating Marlu’s capacity to litigate its claims based on the ACL. For example, they extend to rights to require Marlu to discontinue any litigation – including the present proceedings – and to acquire all of the shares in Marlu (and thus to take control of their opponent in the proceedings). Those are far reaching, and final, effects that seem inconsistent with a purpose of allocating risk between the parties during the period in which a dispute is to be determined; they are apt to prevent a dispute from being determined. As the discussion in Sugar at [19]-[23] indicates, it is necessary to consider whether, as a matter of construction of the contract, it was a purpose of the relevant contract to allocate the risk as to which party should be “out of pocket” pending determination of a dispute.

84    Secondly, insofar as the parties have struck a contractual bargain that includes the rights exercisable by Bishdun and Bishop Contracting in an Event of Default, they must be taken to have done so on the implicit assumption that neither party had been acting in breach of the ACL in the leadup to the execution of the contracts. That is the very question raised by Marlu in these proceedings. Even if the parties could be attributed with the purpose of allocating risk in the event of a dispute about the performance of the contract, that is different from allocating risk in the event of a dispute about whether entry into the contract was affected by misleading and deceptive conduct or unconscionable conduct. To give decisive weight to the parties’ “allocation of risk” pending determination of the anterior question of whether the contracts that allocated the risk were affected by a breach of, and should be varied pursuant to, the ACL, would be tantamount to enabling the parties to have contracted out of the application of the ACL. That is not permissible: see generally, eg, Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd (2018) 56 VR 557; [2018] VSC 246.

85    I do accept that, if Marlu is unsuccessful in obtaining final relief, the grant of interlocutory injunctions will have had the effect that Bishdun and Bishop Contracting will have been prevented, for the duration of the litigation, from exercising certain of the rights for which they have contracted. I accept that, to some extent, the prejudice occasioned to Bishdun and Bishop Contracting by being prevented from exercising those rights during that period may not be completely remediable after the event. That is a prejudice to them that will be taken into account in assessing the balance of convenience.

86    The respondents made another, apparently related, submission, based on cl 18.3(a)(ii) of the Payment and Security Deed. Clause 18.3(a)(ii) provides that Marlu “must not exercise a right of set-off or counterclaim which reduces or extinguishes the obligation of [Marlu] to pay the Secured Money”. The respondents submitted that the present proceedings involve or amount to the exercise by Marlu of a right of set-off or counterclaim to reduce the obligation of Marlu to pay the secured money. I do not accept this submission, for two reasons. First, the present proceedings are not in the nature of a set-off or counterclaim. They are a primary claim by Marlu for relief under the ACL. Secondly, insofar as Marlu’s claim depends on the ACL, cl 18.3(a)(ii) could not exclude the capacity of Marlu to make that claim, at least by commencing its own proceedings as it has done, because to do so would be, in effect, to contract out of the enforceability of the ACL.

The balance of convenience

Principles

87    In deciding where the balance of convenience lies and in exercising the discretion to grant interlocutory injunctive relief, the Court is required to assess and compare the prejudice and hardship that is likely to be suffered by the respondents, third persons and the public generally if an injunction is granted, with that which is likely to be suffered by the applicant if no injunction is granted: see, eg, Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at 260 [62], 260-1 [66]. In this case, that means I must attempt to predict whether the granting or withholding of the injunction is more or less likely to cause irremediable prejudice, and the extent of the prejudice that would be caused in each case. That is a difficult assessment to make because each party will suffer prejudice in the event that they are unsuccessful on the interlocutory application but are ultimately successful in the litigation. The gravity and full effects of the prejudice to each party are difficult to assess, and the competing kinds of potential prejudice are not easily weighed against each other.

The respondents’ reservation of their rights

88    The respondents rely upon the fact that Bishdun and Bishop Contracting have not stated positively that they will exercise any particular contractual rights that are available to them. As I understand the submission, it is that the Court cannot be sure that the adverse consequences to Marlu, which could follow from the exercise of the respondents’ rights under the Agreements, will actually eventuate. However, in the circumstances, I do not give this consideration much weight. Bishop Contracting has taken steps to register its security interest, as it is permitted to do under the Payment and Security Deed upon an Event of Default. The respondents in correspondence have expressly stated that they reserve all their rights and are considering the exercise of all their rights under the Agreements. The respondents have adduced evidence from Mr Bishop on the application for interlocutory injunctive relief but he has not stated that Bishdun and Bishop Contracting will refrain from exercising any particular rights. Nor has any undertaking been proffered by Bishdun and Bishop Contracting that they will not exercise particular contractual rights (or that they will not exercise them without first giving a period of notice to Marlu within which it might act to attempt to prevent their exercise).

89    Finally, given that it is accepted that, on the terms of the Asset Sale Agreement and the Security Agreements as they currently stand, an Event of Default has occurred for the purposes of each of those contracts, Bishdun and/or Bishop Contracting would now be entitled to exercise any of their contractual rights without giving prior notice to Marlu. That is, if Bishdun or Bishop Contracting were to choose to exercise particular rights, there would be no further opportunity for Marlu to seek to enjoin the exercise of those rights at a point in time where their exercise was threatened or imminent but before they were in fact exercised. By opposing the grant of interlocutory relief in its entirety, the respondents are seeking to preserve the capacity of Bishdun and Bishop Contracting to exercise any of the rights available to them at will. In these circumstances, I think it is appropriate to proceed on the basis that there is a real prospect that Bishdun or Bishop Contracting may elect to exercise any or all of their contractual rights at any time and in whatever way they consider to be in their interests.

What will happen if Marlu fails to obtain interlocutory injunctive relief and its claims have merit?

90    There has already been an Event of Default for the purposes of the Asset Sale Agreement and each of the Security Deeds, due to Marlu’s failure to make the first of the Deferred Payments, which was due on 31 January 2025. On Marlu’s case, its default has occurred at least partly as a consequence of the breaches of the ACL which it alleges. If the interim injunctions I have made are lifted and no continuing interlocutory injunctive relief is granted, Bishdun and Bishop Contracting will be at liberty to exercise any of their contractual rights that arise upon the happening of an Event of Default.

91    At the most extreme end of the range of contractual rights available to Bishdun and Bishop Contracting, they include the rights of Bishop Contracting to immediately acquire all of the remaining share capital in Marlu; to settle, discontinue or compromise any proceedings in the name of Marlu (including the present proceedings); to seize, take and retain possession of all the property of Marlu (including its assets and contractual rights); to appoint a controller of all the property of Marlu (including its assets and contractual rights); and to carry on any business of Marlu. If Bishop Contracting were to exercise these rights (or, in some cases, to exercise them in particular ways), the effect would be that Bishop Contracting could unilaterally prevent Marlu from prosecuting its ACL claims. As I have already observed, parties cannot contract out of the ACL and to give decisive weight to the fact that the parties had contracted for Bishop Contracting to have these rights would effectively allow them to have that effect.

92    If Bishop Contracting were not restrained from exercising its rights in these ways, there is a risk that the capacity of Marlu to have its claims adjudicated would be entirely frustrated. If Marlu’s claims have merit, this would constitute an irremediable prejudice to Marlu. It would result in injustice not merely because Marlu was unable to prosecute its case but also because, if Marlu’s claims have merit, Bishop Contracting would have obtained an advantage as a result of (or partly as a result of) the very breach of the ACL which Marlu seeks to establish and for which it seeks redress.

93    Apart from those contractual rights that would enable Bishop Contracting to bring the proceedings to an end in the respondents’ favour, Bishdun and Bishop Contracting have other rights under the contracts, and under the general law, which they could exercise so as to mitigate the risk to them to some extent, but which would not frustrate Marlu’s claims or the present proceedings. For instance, Bishop Contracting could exercise the powers conferred by cl 11.1 of the General Security Deed to investigate the assets and affairs of Marlu, or to inspect and take copies of records of Marlu.

94    Bishop Contracting could also potentially take steps to demand, and if necessary to seek to recover, payment from one or more of the guarantors under the Company Guarantee or the Personal Guarantee. The evidence before me on Marlu’s application for interlocutory relief does not establish what the practical consequences of that course of action might be. It is not apparent that it would necessarily frustrate Marlu’s ACL claims.

95    The respondents advance a submission to the effect that the powers of the Court under s 237 of the ACL are broad and that, consequently, if Marlu were ultimately successful in the proceedings, the Court would be able to fashion relief which restored Marlu to the position it would have been in had the respondents not breached the ACL: see, eg, Addenbrooke Pty Ltd v Duncan (No 2) (2017) 348 ALR 1; [2017] FCAFC 76 at 153-4 [664] (Gilmour and White JJ); Ripani v Century Legend Pty Ltd (No 4) [2024] FCA 1211 at [139]. It was submitted that any hypothetical injury that Marlu may suffer if an injunction were refused could adequately be compensated by the ultimate exercise of the broad remedial discretion. While I accept that the power to order the payment of compensation under s 237 of the ACL is broad, that does not mean that any prejudice to Marlu can ultimately be remedied by an order for compensation. Particularly is that so when the rights that the respondents seek to reserve have the capacity to result in Marlu ceasing to exist, terminating the proceedings or losing control over all its assets.

96    The respondents also submitted that it is possible that another creditor may take action to wind up Marlu or to place it in external administration. I accept that that is possible, but it would depend on the existence and exercise of contractual rights of third parties, or on hypothetical future events. If anything, orders restraining Bishdun and Bishop Contracting from exercising some of their rights under the contracts with Marlu may make it less likely that any third party will be in a position to, or will choose to, take action of that kind. It is not possible to anticipate every possible eventuality. If another creditor were to take action to wind up Marlu or place it in external administration, that may be a change of circumstance of the kind that would lead the Court to consider afresh whether interlocutory injunctive relief should continue, or whether it should be modified in some way.

What will happen if Marlu obtains interlocutory injunctive relief but is ultimately unsuccessful in the proceedings?

97    If injunctive relief is granted which prevents Bishdun and Bishop Contracting from enforcing their rights under the Asset Sale Agreement and the Security Deeds, this will be a temporary state of affairs. It will last only until the determination of the proceedings brought by Marlu (or until a further relevant order of the Court). If Marlu is ultimately unsuccessful then Bishdun and Bishop Contracting will be at liberty to exercise any of their contractual rights under the Agreements.

98    To the extent that the contractual rights are intended to protect the capacity of Bishdun and Bishop Contracting (between them) to recover the whole of the purchase price under the Asset Sale Agreement, their position will be substantially protected, even if there is a period while the proceedings are on foot in which they are unable to enforce all of their contractual rights against Marlu. Bishdun has already received $7,800,000 of the purchase price and, if Marlu is unsuccessful, Bishop Contracting will be able to take steps to control all of the assets of Marlu, including the assets of the Nighthawk Transport business – assets which were valued at close to $11,000,000 in the Second Slattery Valuation. The respondents’ position is that the Nighthawk Transport business, in the hands of Bishdun, was, and would remain, profitable.

99    I accept that some prejudice to Bishop Contracting will be occasioned by the grant of interlocutory injunctive relief, and that there is at least a real risk that that prejudice will not be fully remediable if Marlu’s claim is ultimately unsuccessful. The delay in the capacity of Bishop Contracting to exercise its contractual rights that arise upon an Event of Default may, I accept, have the result that those rights are less valuable to Bishop Contracting at the point when it is able to exercise them.

Prejudice to the respondents: inability of Marlu to pay and effect on the efficacy of its undertaking as to damages

100    The respondents submit that, based on the evidence of Mr Jean-Louis, Marlu is “prima facie insolvent”. In particular, Mr Jean-Louis deposes that:

(a)    Marlu is unable to pay Bishop Contracting $292,109, being the amount due on 31 January 2025 as the first of the Deferred Payments, while also paying critical business costs (such as wages and fuel) and undertaking repairs and servicing to deploy repairable assets, and servicing on assets already operational to avoid them becoming inoperable; and

(b)    Marlu is not in a position to pay the amount of $5,503,959, being the remainder of the purchase price which it became liable to pay in full after the first of the Deferred Payments was not made.

101    I do not consider that it is necessary for present purposes to decide whether Marlu is insolvent, or whether it could be characterised as “prima facie insolvent”. As Marlu points out, its inability to pay Bishop Contracting is, on Marlu’s case, due (at least in part) to the lower-than-expected profitability of the Nighthawk Transport business, which Marlu alleges is a result of breaches of the ACL by one or more of the respondents. It is sufficient for present purposes to note that the evidence supports the conclusion that, if Marlu is not ultimately unsuccessful in these proceedings, it will be (and will remain) in default of its contractual obligations, it may well be unable to make payment of the Deferred Payments in full, and it may not have additional funds available to compensate Bishdun or Bishop Contracting for any loss or damage they may suffer by reason of the making of the injunctions.

102    In other words, I accept that there is serious doubt as to the value to the respondents of the undertaking as to damages that Marlu has proffered. I will take this into account in considering the balance of convenience.

Prejudice to the respondents: impact on capacity to pay personal debts of Mr Bishop and Ms Dunning

103    Mr Bishop deposes to the fact that he and Ms Dunning are now retired. They are reliant on the Deferred Payments that were to be received by Bishop Contracting to provide them with income that would enable them to meet their financial obligations and liabilities and to fund their retirement. Mr Bishop’s evidence is that, if he and Ms Dunning “are restrained from enforcing [their contractual rights], potentially for a long time, then this may impact [their] ability to pay [their] liabilities and fund [their] retirement”. Mr Bishop also deposes to (and provides evidence of) a tax liability of Bishdun for a significant sum of money in relation to the sale of the Nighthawk Transport business, which is said to be “more money than we readily have access to”. Mr Bishop’s evidence is cautiously expressed, but I accept that the fact that the Deferred Payments will not be immediately available to Mr Bishop and Ms Dunning, will impact on them, and will operate as a prejudice to them for so long as any interlocutory injunctive relief continues to operate.

Conclusions regarding the balance of convenience

104    Whether or not interlocutory injunctive relief is granted, the successful party to the litigation is likely to suffer prejudice if the end result is that the interlocutory decision is not vindicated. In either case, the prejudice is unlikely to be fully remediable by any final orders the Court might make.

105    Doing the best I can to balance the competing interests of the parties, and the potential prejudice to each if they are ultimately successful in the proceedings, I consider that the appropriate course is to make interlocutory orders that will prevent Bishdun or Bishop Contracting from taking steps under the Asset Sale Agreement or the Security Deeds which would enable Bishop Contracting unilaterally to take over control of Marlu or otherwise prevent Marlu from prosecuting the present proceedings, or which would enable Bishop Contracting to acquire all the assets of Marlu or to control the Nighthawk Transport business, while the proceedings are pending.

106    If Bishdun and Bishop Contracting are not enjoined from exercising at least some of their contractual rights, they will have the unilateral capacity to destroy Marlu’s ability to prosecute its claims. That would be a severe and irremediable prejudice to Marlu and the practical effect would be equivalent to the rejection of Marlu’s claims. That is, to decline to grant injunctive relief to that extent would amount, in effect, to precluding Marlu from obtaining final relief, irrespective of the merit of its claims. The prejudice to Marlu if Bishdun and Bishop Contracting exercised what I have described as the more extreme contractual rights outweighs the prejudice that the respondents would suffer if Marlu is ultimately unsuccessful and Bishdun and Bishop Contracting are precluded from exercising those rights until the determination of the proceedings.

107    However, Bishdun and Bishop Contracting should not otherwise be prevented from taking steps that are available to them in an Event of Default under the contracts – including suing (or counterclaiming in the present proceedings) for debts which the respondents claim are outstanding, or relying on the obligations of the guarantors under the Company Guarantee and Personal Guarantee in respect of debts which the respondents claim are outstanding. Nor should Bishop Contracting be prevented from pursuing other courses of action that are generally available to creditors.

108    I accept that there remains potential prejudice to Bishdun and Bishop Contracting. If Marlu’s claim for final relief is ultimately unsuccessful, Bishdun and Bishop Contracting will have been prevented, for the duration of the litigation, from exercising certain entitlements for which they contracted in the case of an Event of Default. In that case, all that would occur is the deferral of the capacity of Bishdun and Bishop Contracting to exercise those rights, but I accept that the inability to exercise those rights even for a time has the capacity to create real prejudice for Mr Bishop and Ms Dunning, and that prejudice may not be remediable. There also remains the potential for prejudice to Marlu, or to third parties closely associated with Marlu in the event that Marlu’s claim is ultimately upheld.

109    I note that Mr Bishop also deposes to the fact that some of the operating assets have been sold by Marlu, including in circumstances where the permission in writing of Bishop Contracting was required under cl 4.1 of the Payment and Security Deed but was not obtained. I do not understand Marlu to dispute this, although explanations have been offered as to how that came about. I accept that there is a risk that Marlu may sell further assets in the future and that this could operate to the prejudice of Bishop Contracting. Given that Marlu is now plainly aware of its obligations in this regard, any further sale of assets without the permission of Bishop Contracting (in circumstances where its permission is required) could be seen as Marlu taking advantage of the interlocutory injunction by breaching the Payment and Security Deed otherwise than by failing to make the Deferred Payments, and could potentially support a conclusion that the balance of convenience has shifted.

110    The interlocutory orders I will make represent my best attempt to balance the potential for irremediable prejudice to each party.

Conclusion

111    For these reasons, I consider that interlocutory injunctive relief should be granted to Marlu. That relief should not prevent Bishdun and Bishop Contracting from exercising all of the rights that arise on an Event of Default. The relief granted should be no broader than the more limited form of injunctive relief identified in order 2 of Marlu’s proposed minute of order dated 11 February 2025, set out at [11] above, which identifies rights the exercise of which Marlu contends would result in serious and irremediable prejudice to it and, in particular, to its capacity to pursue to determination the claims it makes in the proceedings.

112    As to paragraph (a) of the proposed relief stated in Marlu’s proposed minute of order, I will limit the injunction so that it prevents the transfer of Oz Base’s shares in Marlu, selling the Collateral or appointing an external controller, as opposed to “taking steps” to do so (which is not sufficiently certain). As to paragraph (b)(ii), I would not enjoin Bishop Contracting from appointing a director to Marlu under cl 4.2.2 of the Asset Sale Agreement or cl 4.10 of the Payment and Security Deed, because the right of Bishop Contracting to appoint a director is not dependent on the occurrence of an Event of Default. (I note that the appointment of a director to Marlu might give rise to questions regarding access to and use of information and advice held by Marlu in relation to these proceedings, but those issues would seem to be hypothetical at this stage.)

113    As to paragraph (b)(iii), I would limit the proposed injunction so as to limit the appointment of an observer so that they are to be excluded from board meetings only while the conduct of, or advice in relation to, these proceedings is to be discussed. As to paragraph (e), I would limit the injunction to preventing the accessing, inspecting, copying and receiving of information in relation to the proceedings. Otherwise, the injunction I will make will generally reflect the terms of order 2 of Marlu’s proposed minute of order dated 11 February 2025. I appreciate that these are extensive limitations on the exercise of the contractual rights of Bishdun and Bishop Contracting but I have attempted to tailor them in a way that will prevent the exercise of rights in a manner that would be apt to frustrate the proceedings, while otherwise preserving the rights of Bishdun and Bishop Contracting as far as possible.

114    As already indicated above, if a third-party creditor, unrelated to the respondents, were to take steps to wind up Marlu or to place it in external administration, that would be a significant change of position that would entitle Bishdun or Bishop Contracting to apply to vary the orders which I will make. That is not to pre-empt the outcome of any such application, but that kind of development may potentially warrant a reconsideration of the situation, and the relative prejudice to the parties, in the light of the changed circumstances.

115    Another circumstance that may also justify Bishdun or Bishop Contracting applying to vary the orders would be if, in the future, a further Event of Default of a different kind were to occur (that is, a default other than a future failure to make Deferred Payments, such as the sale of further assets by Marlu without the permission of Bishop Contracting, where such permission was required). Whether any variation to the orders would be justified in that circumstance may depend on the nature of the Event of Default, its relation (if any) to the breaches of the ACL which Marlu alleges, and the prejudicial effect on Bishdun or Bishop Contracting if they were to remain restrained from exercising particular contractual rights.

116    Neither party has enjoyed complete success in respect of this application. Whether the grant of injunctive relief was correct in the sense that Marlu is ultimately entitled to final relief of the kind it seeks, or to other relief that justifies the grant of the interlocutory relief, cannot be known until the determination of the litigation. In the circumstances, it is appropriate to order that the costs of Marlu’s application for interlocutory relief be costs in the cause.

Associate:

Dated:    24 February 2025

SCHEDULE OF PARTIES