Federal Court of Australia

Marlau Nominees Pty Ltd trading as Paramount Liquor v Adobe Systems Pty Ltd [2026] FCA 1494

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for an injunction made on 23 September 2026 (Application) be dismissed.

2.    The Applicant pay the Respondent’s costs of the Application.

3.    The proceeding be referred to the National Operations Registrar for allocation to a docket judge.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The applicant (Paramount) is a liquor wholesaler, and most of its sales are through its website which is provided by the respondent (Adobe) under a three-year contract, with an option to renew for a further two years at a higher cost. The option to renew was not exercised by Paramount and, as a result, the contract term expired on 17 September 2026 (albeit that by letter dated 15 September 2026, Adobe agreed not to act on that expiry until 25 September 2026).

2    Paramount commenced these proceedings on 23 September 2026 seeking an urgent interlocutory injunction restraining Adobe, pending the hearing and determination of the proceeding or further order, “from in any way disrupting access to or use of the Paramount website or the products and services provided by Adobe under [the contract].”

3    On 24 September 2026, the interlocutory application came before me as Commercial and Corporations duty judge. The parties, on that day, provided joint undertakings to the Court that they both would, until 4pm on 6 October 2026, perform and comply with all their obligations under the contract, and agreed to a timetable to ready the application for hearing on 6 October 2026.

4    At the hearing on 6 October 2026, I dismissed the interlocutory application. These are my reasons for doing so.

5    At the hearing, I was informed by senior counsel for Paramount, Mr Rosewarne KC, that Paramount had created its own custom-built website, which is now “up and running”, and therefore Paramount had amended the interlocutory relief sought to only be for a period of 21 days. Mr Rosewarne KC informed me that the need for the more limited form of injunctive relief was to enable Paramount to complete testing on the new website in a live environment and to address any performance concerns. Paramount’s evidence was that the new website was launched on 18 September 2026 (that is, before this proceeding was commenced) and is now operational and stable. Based on the positive performance of the new website since it was launched, the risk of this new website “going dark” or otherwise failing to handle peak Paramount trading days, such that Paramount needs to rely on Adobe’s website, has now decreased. It was on that basis that at the hearing Paramount only sought access to the products and services provided by Adobe for a further three weeks, until 5pm on 26 October 2026. Mr Rosewarne KC accepted my characterisation of the relief sought as a “belt and braces solution”.

6    By this proceeding, Paramount brings claims for misleading or deceptive conduct based on pre-contractual representations made by Adobe about the functionality of the Adobe website. Paramount alleges that Adobe’s website product could not function with Paramount’s pricing data structure. As a consequence, Paramount has had to build a custom-built website to replace the Adobe website at substantial cost and expense. Paramount alleges that if these
pre-contractual representations had not been made, it would not have entered into a contract with Adobe and, instead, would have engaged a different third-party provider or developed its own custom-built website.

Evidence

7    In support of its application for an injunction, Paramount relies upon:

(a)    affidavits of Nathan Rowe, its Chief Executive Officer, affirmed 22 September 2026 (Rowe Affidavit) and 1 October 2026;

(b)    an affidavit of Gopal Sareen, a Senior Software Engineer at Visualr (a digital product consultancy business that designs and develops custom software applications and eCommerce platforms that Paramount engaged in about 2021 to develop and manage its website), affirmed 22 September 2026 (Sareen Affidavit);

(c)    an affidavit of Maxim Ellison, the Chief Technology Officer at Visualr, affirmed 5 October 2026;

(d)    an affidavit of Monique Carroll, a partner at Mills Oakley, the solicitors for Paramount, affirmed 5 October 2026;

(e)    submissions dated 23 September 2026; and

(f)    reply submissions dated 5 October 2026.

8    In opposition to the application, Adobe relies upon:

(a)    an affidavit of Michael Williams, Senior Legal Counsel at Adobe, sworn 2 October 2026 (Williams Affidavit); and

(b)    submissions dated 2 October 2026.

Legal principles

9    The principles concerning the grant of an interlocutory injunction are well-established. The applicant must establish that there is a serious question to be tried (ie, prima facie case) and that the balance of convenience weighs in favour of the granting of the injunction: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [19] (Gleeson CJ and Crennan J), Karas v LK Law Pty Ltd (2023) 296 FCR 39; [2023] FCAFC 15 at [72] (O’Callaghan and Colvin JJ, Charlesworth J agreeing), StarTrack Express Pty Ltd v TMA Australia Pty Ltd [2023] FCAFC 200 at [50]–[52] (O’Callaghan, Stewart and Button JJ), Samsung Electronics Co. Limited v Apple Inc. (2011) 217 FCR 238; [2011] FCAFC 156 at [52]–[74] (Dowsett, Foster and Yates JJ). An aspect of the consideration of the balance of convenience is whether damages will be an adequate remedy, although this is sometimes expressed as a separate, third step: O’Neill at [19] (Gleeson CJ and Crennan J).

10    To establish a prima facie case or a serious question to be tried, an applicant does not need to show that it is more probable than not that it will succeed at trial. It is sufficient to show a likelihood of success to justify, in the circumstances, the preservation of the status quo pending trial: O’Neill at [65] (Gummow and Hayne JJ), quoted in StarTrack Express at [52]. In Minister for Immigration and Multicultural Affairs v MZAPC (2025) 185 ALD 427; [2025] HCA 5, Gageler CJ, Gordon, Gleeson and Jagot JJ said the following at [23]:

No court has an unlimited power to grant an interlocutory injunction and an order “must be framed so as to come within the limits set by the purpose which [the order] can properly be intended to serve”. Further, the primary purpose of an interlocutory injunction remains “to keep matters in status quo until the rights of the parties can be determined at the hearing of the suit”. The condition precedent remains that “a plaintiff seeking an interlocutory injunction must be able to show sufficient colour of right to the final relief, in aid of which interlocutory relief is sought”, the usual description of the sufficiency of that colour of right being the establishment of a serious question to be tried or a prima facie case.

11    The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience, as they involve related inquiries and the apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance: StarTrack Express at [53], quoting Warner-Lambert Co LLC v Apotex Pty Ltd (2014) 311 ALR 632; [2014] FCAFC 59 at [70] (Allsop CJ, Jagot and Nicholas JJ), and see StarTrack Express at [54]; Samsung at [67].

12    The balance of convenience involves the exercise of judicial discretion. The Court is required to assess and compare any prejudice and hardship likely to be suffered by the respondent, third persons, and the public generally if an injunction is granted, with that which is likely to be suffered by the applicant if the application is refused: Samsung at [66]. As the Full Court continued:

In determining this question, the Court must make an assessment of the likelihood that the final relief (if granted) will adequately compensate the plaintiff for the continuing breaches which will have occurred between the date of the interlocutory hearing and the date when final relief might be expected to be granted.

13    I have said that the injunction sought is framed by Paramount as restraining Adobe from disrupting access to the services under the contract. However, as Adobe contends that the contract has ended, the injunction sought can be properly characterised as a mandatory injunction compelling Adobe to continue to supply services, on terms it does not wish to. While the test in respect of a mandatory interlocutory injunction is no different, the nature of the mandatory interlocutory injunction sought can effect the consideration of the balance of convenience – because it may be that the risk to the respondent if the injunction is ‘wrongly’ granted is greater: Australian Competition and Consumer Commission v Pacific National Pty Ltd [2018] FCA 1221 at [8]–[13] (Beach J), U Can Recycle Pty Ltd v Container Exchange (Qld) Limited [2026] QSC 163 at [13] (Doyle JA). In that regard, Jackson J said in Frigger v Trenfield [2019] FCA 1746 as part of a summary of the relevant principles at [6(8)]–[6(10)]:

(8)    Mandatory interlocutory injunctions are uncommon, partly because the usual purpose of the interlocutory injunction is to preserve the status quo, which is inapplicable to mandatory injunctions. Mandatory injunctions require a party to take some positive step or to undo what has been done in the past: Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471 at 483 (Kennedy J).

(9)    The features which justify describing an injunction as mandatory will usually also have the consequence of creating a greater risk of injustice if it is granted rather than withheld at the interlocutory stage, unless the court feels a high degree of assurance that the applicant would be able to establish the relevant right at a trial: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 at 680-681 (Hoffmann J); see also Cash Converters at 483.

(10)    However these matters concerning characteristics of mandatory injunctions are best understood as guidelines rather than independent principles: Films Rover at 680-681. Ultimately the question is as to the balance of the risk of injustice. In considering that balance the court must take into account the nature and consequences of the particular injunction sought: Twinside [Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110] at [12].

Serious question to be tried

14    I am satisfied that the affidavit evidence relied upon by Paramount in the Rowe Affidavit and the Sareen Affidavit establishes that there is a serious question to be tried as to whether Adobe has engaged in misleading or deceptive conduct in contravention of s 18 of sch 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law). That evidence establishes on a prima facie basis that in the pre-contractual negotiations with Paramount, Adobe made representations that:

(a)    it was capable of hosting a website that met Paramount’s pricing requirements (Pricing Requirements);

(b)    Adobe Commerce’s platform would be capable of hosting a website that met the Pricing Requirements without the need to make any significant changes to Adobe Commerce’s “out of the box” platform or Paramount’s pricing systems;

(c)    the pricing data for the Paramount website would be hosted by Adobe Commerce; and

(d)    based on the Pricing Requirements, the time required to update all prices on the Paramount website to be provided by Adobe Commerce would be less than one day and would be significantly shorter than Paramount’s disclosed then current processing times of about one week.

15    These are the pleaded representations relied upon by Paramount (Representations).

16    Paramount will contend at trial that if the Representations were not made, it would not have entered into the contract with Adobe. Instead, Paramount would have entered into a contract with a different third-party platform provider with different capabilities or it would have engaged another software provider (Visualr) to provide a custom-built website.

17    The affidavit of Mr Rowe establishes, at least on a prima facie basis, that he was persuaded to engage Adobe for the new website because he was confident from what they had told him that the new website could hold Paramount’s number of pricing combinations and quickly synchronise changes to those prices, and he considered that Paramount would save time and costs from being able to use Adobe’s “out of the box” functionality, rather than incurring the costs of developing a custom-built website.

18    The Williams Affidavit did not challenge in any substantial way Paramount’s evidence as to the pre-contractual negotiations. At the hearing of the interlocutory application on 6 October 2026, counsel for Adobe, Ms Hooper, did not substantially contest that Paramount had established on a prima facie basis a serious question to be tried in respect to the alleged Representations. Instead, Adobe contended that there was no serious question to be tried because the contract term extension relief which Paramount seeks does not arise from and is not connected with the alleged wrongful conduct of Adobe the subject of the statement of claim, and that there is not a sufficient likelihood that the relief sought by Paramount would be granted in the first place (there being no serious question to be tried that final extension relief might be available).

19    As I have said, a party seeking an interlocutory injunction must be able to show sufficient colour of right to the final relief, in aid of which interlocutory relief is sought (emphasis added). In MZAPC, the majority said the following at [24] as part of a discussion as to the meaning of this phrase, and the power of courts to grant interlocutory orders more generally:

It is not the case, however, that the power of a court to make an interlocutory order, including to grant an interlocutory injunction, is confined to an order (albeit on an interim basis) to the same effect as the final order sought. Rather, as Gummow and Hayne JJ said in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, while “it is necessary to identify the legal … or equitable rights which are to be determined at trial and in respect of which there is sought final relief”, the final relief sought “may or may not be injunctive in nature”. In stating in the same case that “[i]f the [applicant] cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation of the claim for interlocutory relief disappears”, Gleeson CJ was making the point that there is no “‘free-standing’ right to interlocutory relief” because, absent a serious question to be tried or a prima facie case to final relief being established, “[t]here is then no justice in maintaining the status quo, because that depends upon restraining the [respondent] from doing something which, by hypothesis, the [applicant] has no right to prevent”. In other words, it is the establishment of the serious question to be tried or the prima facie case, and therefore a sufficient colour of right to final relief, which conditions the grant of an interlocutory injunction, the grant otherwise depending on justification “by the legitimate processes of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles”.

20    The majority went on to say that there is no specific limiting principle that “the scope of an appropriate interlocutory order is confined to the scope of the final order sought in the matter”: at [27]. The majority referred to the breadth of the Court’s power “to make an interlocutory order to protect the integrity of its own processes by ensuring its capacity to effectively exercise its jurisdiction in a proceeding pending before it, including an order to preserve the
subject-matter of the proceeding and an order to preserve the utility of the final relief that is sought”: at [29].

21    Beech-Jones J, in dissent as to the outcome of the appeal in MZAPC, also said in relation to the Court’s power to order an injunction at [107]:

Traditionally, an interlocutory injunction — that is, an interlocutory order commanding a person to do or refrain from doing a particular act — has been considered a creature of equity which preserves the “status quo” or “subject matter” of a dispute, including a dispute about rights under statute, pending a final hearing of the proceedings. As Gleeson CJ explained in ABC v Lenah Game, such an order can usually only be granted if the party seeking the order can “show sufficient colour of right to the final relief, in aid of which the interlocutory relief is sought” (emphasis added).

22    Further, Mortimer J (as her Honour then was), said in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [80]:

The purpose of the grant of interlocutory relief is to ensure that the Court can, at trial, do justice between the parties in the matter which is before it. As a Full Court of this Court explained, the nature and extent of interlocutory orders which might be made under s 23 of the Federal Court of Australia Act 1976 (Cth) may depend on what the controversy is between the parties: see Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; 34 FCR 169. This is not an application of that kind, because the interlocutory relief sought has no substantive connection with the controversy between the parties in the proceeding, nor with the final relief sought. This is, rather, a Tait kind of application: see Tait v R [1962] HCA 57; 108 CLR 620. It is not however the kind of Tait application which, for a period, became rather frequent in relation to the transfer of individuals from Nauru: see FRM17 v Minister for Home Affairs [2019] FCAFC 148. In those cases, interlocutory relief was found to be appropriate to preserve, or avoid further risks to, the health (and sometimes the lives) of the individuals who sought to bring proceedings where the cause of action was an allegation of negligence in relation to their physical and mental health on Nauru. The very state said to have been neglected by the respondents was said to be at further risk without interlocutory relief. That is also not this case. In my opinion the preservation of the subject matter of this proceeding does not require interlocutory relief to be granted.

23    I am satisfied, on the affidavit evidence relied upon by Paramount, that it has established a serious question to be tried in respect of its allegations as to misleading or deceptive conduct. I am, however, not satisfied that this is an appropriate case for ordering injunctive relief as it is neither necessary to preserve the subject matter of the proceeding, nor to protect the Court’s own processes. I do not think the interlocutory relief sought has a substantive connection with the controversy between the parties in the proceeding or with the final relief sought. Paramount’s substantive case is that it would not have entered into the contract with Adobe but for the misleading or deceptive conduct. The Court’s ability to determine the misleading or deceptive conduct case, and Paramount’s right to final relief will not be effected by Adobe no longer supplying its services to Paramount. That is, it cannot be said that Paramount’s claims will be destroyed or that the injunction sought is, in truth, in aid of the final relief sought: P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029 at [46] (French J). Whilst the Statement of Claim does include an order varying the contract such that it is extended on a monthly basis, that relief is neither practical, nor is it aligned with the interlocutory orders now sought (being an injunction for the limited time only of 21 days).

Balance of convenience

24    Paramount submits that the balance of convenience favours the grant of the amended interlocutory relief sought in the proposed minutes of orders handed to me during the course of the hearing. The amended injunction sought by Paramount was to restrain Adobe until 5pm on 26 October 2026 or until further order, from in any way disrupting access to or use of Paramount’s website or the products and services provided by Adobe under the contract. In effect, Paramount seeks a mandatory interlocutory injunction extending the term of its contract with Adobe by 21 days, until 5pm on 26 October 2026. Paramount submits that such an injunction would maintain the status quo for a short period of 21 days until Paramount may complete the testing of its new website. Paramount submits that damages if the new website “goes dark” will be significant and that damages will not be an adequate remedy.

25    Paramount, by its written submissions in reply, identified seven reasons why the balance of convenience favours the grant of the amended interlocutory relief sought by Paramount. Those matters are as follows.

26    First, the injunction does not in substance amount to an order for the final relief sought in the proceeding. I do not agree. At trial, the only other relief that will be sought is damages. The mandatory interlocutory injunction sought by Paramount will have extended the period of the contract by 21 days until 5pm on 26 October 2026. The mandatory interlocutory injunction will have expired by the time of the trial and, as I have said, the variation relief sought in the Statement of Claim does not align with the relief now sought and Paramount’s agreement that it does not wish the contract to continue past the 21-day period. As a consequence, the injunctive relief is, in substance, an order for the final relief sought in the proceedings. “In cases where the grant of interlocutory relief would be tantamount to the grant of final relief, the strength of the prima facie case will often attract particular scrutiny”: StarTrack Express at [54], and see Martin & Pleasance Pty Ltd v A Nelson & Co Ltd [2021] FCAFC 80 at [48]–[51] (Jagot, Yates and Jackson JJ).

27    Second, Paramount has now offered the usual undertaking as to damages and has led evidence as to the worth of such an undertaking. I accept that factor as weighing in favour of Paramount on the balance of convenience.

28    Third, Paramount contends that damages are not an adequate remedy. I do not accept that submission. The damages arising from a wrongful refusal to grant the amended injunction are limited to 21 days’ trading. The evidence of Mr Rowe in the Rowe Affidavit at paragraphs [114]–[121] provides considerable detail as to the loss and damage Paramount would suffer if the Paramount website “goes dark”. I am not satisfied that it would be difficult for Paramount to prove any loss and damage it would suffer in the 21-day window if the website should “go dark”. Mr Rowe’s evidence indicates that Paramount has the means to calculate the loss and damage it may suffer if the new website should “go dark”. It must be remembered that Paramount’s new website which was launched on 18 September 2026 is currently operational and stable. The extension of the contract by 21 days is a “belt and braces” measure to afford Paramount a measure of comfort to complete its testing of the website. In effect, Paramount seeks injunctive relief as a means to future proof the website by further testing.

29    Fourth, Paramount contends that the amount of lost profit that ultimately arises from the estimated loss of sales is a matter for assessment of damages at trial. I agree. The Rowe Affidavit discloses that Paramount has the means to calculate and advance its case for loss and damage at trial. Paramount also says that, given the magnitude of sales and the complexity of Paramount’s pricing structure, it is unrealistic and impractical for Paramount to guard against or minimise lost profit by taking orders in person, by phone or by email. That may be so, but this needs to be considered in the context of Paramount currently having an operational website, and that the relief sought is only for a period of 21 days.

30    Fifth, Paramount contends that the amended injunction merely seeks to avoid any disruption to Paramount’s website that is currently being hosted by Adobe. I do not agree. The terms of the mandatory interlocutory injunction sought require Adobe to provide products and services to Paramount as provided for in the contract (which Adobe says expired on 17 September 2026) for a further term of 21 days, until 5pm on 26 October 2026.

31    Sixth, Adobe submits that a factor against granting the injunction is that Paramount is liable for additional overage charges in accordance with the terms of the contract. Paramount denies this. I accept Paramount’s submission that this is not a factor relevant to the balance of convenience.

32    Seventh, Paramount contends that Adobe has been able to continue to provide services since the initial expiry date of the contract on 17 September 2026. That much is true. However, Adobe does not wish to provide such services on the terms provided for in the proposed mandatory interlocutory injunction and it has put on evidence as to the difficulties of doing so in relation to its internal processes and accounting requirements.

33    Save for the second matter, I do not accept that the other matters advanced by Paramount weigh in favour of granting the mandatory interlocutory injunction sought. In addition, the following matters relevant to the balance of convenience weigh against granting the mandatory interlocutory injunction.

34    The predicament which Paramount now finds itself in was substantially contributed to by its own conduct in failing to arrange for an alternative service provider or complete its new website before the expiry of the term of the contract. The affidavit evidence of Mr Rowe is that it was not until July 2026 that Paramount decided to attempt to custom build a new website and that this work commenced on 1 August 2026. By mid-September 2026, Mr Rowe was confident that Paramount would be successful in building a new website and would need a further period of 4–6 weeks to test the new website. In Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (2013) 210 FCR 1; [2013] FCA 119, Collier J found, at [38], that a factor to be weighed against the granting of injunctive relief was “that the current position in which the applicants find themselves is a result of their own lack of foresight and planning”. I similarly find in this case that any loss which Paramount may suffer by the refusal to grant the mandatory interlocutory injunction sought is self-induced. Paramount alleges it was misled by the Representations over three years ago. Paramount was aware of the end date of the contract from the outset and could have opted to renew the contract for any of the various renewal terms offered to it by Adobe, including for as short a term as three months, until 18 December 2026. Alternatively, it could have moved to a new service provider and developed its own website much sooner upon realising what it alleges were the limitations of the Adobe platform relative to its needs.

35    Further, the failure of Paramount to promptly apply for an interlocutory injunction in the circumstances of this case as I have set out above is, in my view, a decisive factor against the grant of the mandatory interlocutory injunction now sought, either as a factor to be weighed in the balance of convenience or as a separate factor going to discretion: Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633 at 638–639 (Bowen CJ, Beaumont and Foster JJ), Gladstone Region Aboriginal & Islander Community Controlled Health Service Ltd v National Aboriginal Community Controlled Health Organisation (2025) 177 ACSR 42; [2025] FCA 656 at [28]–[30] (Wheatley J), Workplace Institute Ltd v IBM Australia Ltd (2019) 147 IPR 13; [2019] FCA 1339 at [67]–[70] (O’Callaghan J), Scyne Advisory Business Services Pty Ltd v Heaney (2024) 329 IR 461; [2024] NSWSC 275 at [67], [81] (Parker J). Paramount waited until 23 September 2026, after the contract had expired on 17 September 2026, to seek urgent injunctive relief notwithstanding having determined in July 2026 to build a new custom-built website.

36    For the above reasons, Paramount has not established that the balance of convenience favours the grant of the interlocutory injunction sought.

Disposition

37    The application for interlocutory injunctive relief is dismissed.

38    The applicant will pay the respondent’s costs of the interlocutory application.

39    The proceeding will be referred to the National Operations Registrar for allocation to a docket judge.

Associate:

Dated:    9 October 2026