Federal Court of Australia

Vellenga v Australian Carers Pty Limited, in the matter of Australian Carers Pty Limited [2025] FCA 1642

ORDERS

THE COURT ORDERS THAT:

1.    The plaintiffs’ interlocutory application dated 14 November 2025 is dismissed.

2.    The plaintiffs are to pay the second defendant’s costs of and incidental to the interlocutory application in any event with such costs to be agreed or assessed as a lump sum.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    The first plaintiff, John Theodoor Nico Vellenga, is one of two directors of the first defendant, Australian Carers Pty Ltd, the other director, being the second defendant, is Reginald Malcolm Vitnell.

2    The second plaintiff, Vellenga Holdings Pty Ltd, holds 50,000 shares in Carers. Mr Vitnell also holds 50,000 shares in Carers.

3    Carers is in the business of providing disability support services. It was established on 20 May 2019 and now operates in Sydney, Adelaide, Rockhampton and Perth.

4    In the ensuing years, the relationship between Mr Vitnell and Mr Vellenga has deteriorated significantly to the extent where the two cannot now work together.

5    By the plaintiffs’ interlocutory application dated 14 November 2025, the plaintiffs seek an interlocutory injunction pursuant to s 1324 of the Corporations Act 2001 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) restraining Mr Vitnell from:

(a)    Acting, conducting himself, holding himself out or performing any duties, as a director, officer or employee of Australian Carers Pty Limited (ACN 633 325 854) (Company);

(b)    Engaging in any conduct that interferes with or prevents the performance by John Theodoor Nico Vellenga of his duties as a director, officer or employee of the Company;

(c)    Contacting or communicating with any customers or clients of the Company;

(d)    Contacting or communicating with any officers, employees, contractors and/or suppliers of the Company, other than Mr Vellenga; and

(e)    Attending any of the offices of the Company in Adelaide, Sydney, Rockhampton and/or Perth.

6    Further, the plaintiffs seek injunctive relief that Mr Vitnell provide to Mr Vellenga all login and access credentials necessary for Mr Vellenga to obtain administrative access to and control over:

(a)    The domain name: australiancarers.com.au;

(b)    All telephone numbers used by the Company;

(c)    The “Microsoft 365” suite of programs, the “MYOB” Accounting software, the “Deputy” scheduling software and all other software programs used by the Company; and

(d)    All servers used by the Company.

7    Mr Vitnell opposes the application.

8    Both parties filed affidavits in support of their positions which were read on the application without objection.

9    I heard argument on 10 December 2025 and on 12 December 2025 I dismissed the application. I indicated I would provide reasons for doing so. These are those reasons.

Principles

10    The principles applying to an application for an interlocutory injunction, which apply equally to an application for an injunction under s 1324 of the Corporations Act, are well-settled: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57.

11    Section 1324 the Corporations Act provides:

Injunctions

(1)    Where a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute:

(a)    a contravention of this Act; or

(b)    attempting to contravene this Act; or

(c)    aiding, abetting, counselling or procuring a person to contravene this Act; or

(d)    inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act; or

(e)    being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or

(f)    conspiring with others to contravene this Act;

the Court may, on the application of ASIC, or of a person whose interests have been, are or would be affected by the conduct, grant an injunction, on such terms as the Court thinks appropriate, restraining the first - mentioned person from engaging in the conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.

Prima facie case

12    The affidavit material filed on the part of the plaintiffs reveals Mr Vitnell, in effect, attempting to transfer the business of Carers to ‘Help at Home Inc.’, a not-for-profit disability support service provider based in Adelaide and a competitor of Carers. That transfer did not occur.

13    ‘Elevate Health Australia Pty Ltd’ is a for-profit disability support service provider and a competitor of Carers.

14    Mr Vellenga alleges that over a period of time, but as from in or about September 2025, Mr Vitnell has transitioned the employment of employees of Carers to EHA together with at least some of Carers’ clients.

15    Based on the affidavits read on the application, the plaintiffs asked the Court to infer that Mr Vitnell has acted in breach of his fiduciary and statutory duties.

16    The requirement for a prima facie case is not to show that at trial the plaintiff will succeed, but rather that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: ABC v O'Neill at 82 (Gummow and Hayne JJ), nonetheless it may be observed immediately that the orders sought by the plaintiffs do not seek to restrain a contravention of the Corporations Act.

17    The plaintiffs concede, quite properly, that the offending conduct about which they now complain has already occurred. They do not seek to restrain conduct by Mr Vitnell in contravention of s 1324 of the Corporations Act. Rather, they seek to prevent Mr Vitnell from carrying out his ongoing duties as a director. They do so on the basis that Mr Vellenga wants the opportunity to rebuild Carers’ business in Adelaide.

18    The orders sought are directed to restraining Mr Vitnell from carrying out his duties as a director per se. They are not directed at Mr Vitnell breaching his statutory and/or fiduciary duties. In particular, there is no suggestion, in so far as the future conduct which is sought to be restrained by Mr Vitnell, is acting other than lawfully. The plaintiffs have not established a prima facie case.

Balance of convenience

19    Since I have found the plaintiffs have not established a prima facie case, the application must be dismissed. However, for completeness, I deal with balance of convenience.

20    As I have noted, the orders sought by the plaintiffs have the effect of preventing Mr Vitnell from carrying out his duties as a director. In effect, the plaintiffs seek to remove Mr Vitnell from his position as the second director in Carers. Were that order to be made, it would mean granting the plaintiffs final relief.

21    Consequently, the balance of convenience lies firmly against the plaintiffs.

Conclusion

22    It is for these reasons I dismissed the plaintiffs’ application.

23    There will be an order that the plaintiffs’ interlocutory application dated 14 November 2025 be dismissed.

24    There is no reason why the plaintiffs should not pay Mr Vitnell’s costs in any event and there will be an order accordingly.

Associate:

Dated:    15 January 2026