Concrete Mining Structures Pty Ltd v Cellcrete Australia Pty Ltd

Federal Court of Australia|2015-08-19|Before: Edelman J

Application for interlocutory injunction dismissed.
Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 775 of 2015

BETWEEN: CONCRETE MINING STRUCTURES PTY LTD (ACN 161 504 294)

JUDGE: EDELMAN J DATE: 19 AUGUST 2015 PLACE: SYDNEY

Introduction 1 This is an application for an interlocutory injunction brought by the applicant in this proceeding, Concrete Mining Structures Pty Ltd (CMS), against the respondents, Cellcrete Australia Pty Ltd (Cellcrete) and Mr Reiniger. In very broad outline, Mr Reiniger is a former director of CMS who is alleged to have breached duties to CMS including fiduciary duties, duties of confidence and copyright. CMS says that it developed a pump, which will be valuable in the mining industry, known as the CA10MK3 pump. CMS says that the specifications of the CA10MK3 pump and associated matters, which remain confidential, were developed by CMS with Mr Reiniger, as a director and employee, in circumstances in which he owed duties including fiduciary duties and duties of confidence. 2 CMS seeks an interlocutory injunction to restrain Mr Reiniger and his company, Cellcrete, from using or disclosing the confidential information, or reproducing the copyright works, or purchasing, ordering, obtaining, selling or offering for sale the CA10MK3 pump or "variants" of it. 3 Very shortly before this hearing, Mr Reiniger filed an affidavit in which he deposed to a pump that had been developed by his company, Cellcrete. Consequently, last night CMS applied for further interim relief, some terms of which go beyond the terms of the proposed interlocutory injunction and others of which clarify the terms of the proposed injunction. 4 In these reasons I explain why it is not appropriate to grant the interim relief sought in the terms in which it was formulated, although as senior counsel for the respondents properly accepted very similar orders can be made as a matter of case management at the directions hearing which I will hold immediately following the delivery of these reasons. 5 As for the interlocutory injunction application, although I consider that CMS has a prima facie case, the balance of convenience is such that no interlocutory injunction should be granted provided that Cellcrete and Mr Reiniger provide written undertakings in the form proffered and as extended during this hearing.

CMS's pleaded case 6 CMS's primary case, and its allegations against Cellcrete and Mr Reiniger, can be summarised briefly. In these reasons, I express some matters of detail at a high level of generality because some of the information before the court is the subject of claims of commercial confidentiality. 7 CMS alleges that in around 2011, one of its two directors, Mr Holt, met with the sole director of Cellcrete (Mr Reiniger). Mr Holt showed Mr Reiniger an underground pump he had produced and they discussed the production of an underground pump that was capable of economically producing a monolithic seal for use in mining operations. 8 Subsequently, Mr Holt and Mr Reiniger developed a CA09 pump. The CA09 pump was developed using confidential information that Mr Holt had provided to Mr Reiniger and Mr Holt had claimed that it also used his intellectual property. The CA09 pump was purchased by Mr Holt's company from Mr Reiniger for $180,000. 9 There were problems with the CA09 pump. So Mr Holt and Mr Reiniger, together with another man, Mr Pallas (who was the mine operations manager at the Chain Valley Colliery Mine), worked together in a joint venture to establish a new pump. The joint venture subsequently became CMS. Each of the three men, or companies associated with them, held shares in CMS. Mr Dunshea also became a shareholder of CMS and the "operations manager for CMS". Each of Mr Holt, Mr Reiniger and Mr Pallas was a director of CMS. Mr Reiniger was a director from 2 April 2013 until at least 29 April 2015 (when he purported to resign). 10 Mr Reiniger agreed to supply some materials exclusively to CMS at a commercial rate, and also to supply his chemical expertise, components and spare parts for the pump at cost price. 11 From 4 December 2012 until July 2014, CMS developed a pump which is described as the CA10MK3 pump. Mr Reiniger and Mr Dunshea provided services to CMS to assist in the development of the CA10MK3 pump. 12 In July 2014, CMS retained a patent attorney to file a patent application for the CA10MK3 pump. That application was filed on 17 November 2014. Its contents have not been disclosed to the public. 13 CMS pleads that the following information is confidential to CMS (defined in the statement of claim as the Confidential Information), either individually or in combination, known by Mr Reiniger to be confidential, and obtained by Mr Reiniger in his capacity as a director or employee of CMS: (a) the use of a high speed mixer in combination with other elements to produce a pump that can produce a monolithic seal; (b) the specifications for the CA10MK3 pump; (c) the hydraulic schematics for the CA10MK3 pump; (d) the safety file for the CA10MK3 pump; (e) the manufactures that had been engaged and were "tooled" to manufacture the components of the CA10MK3 pump; (f) the prices charged by CMS and the profit margins; (g) the manufacturers who could and did supply spare parts for the CA10MK3 pump; (h) the identity of the hydraulic experts and other service providers that could and did maintain and repair CA10MK3 pumps sold by CMS; (i) the names, contact details and email addresses of clients of CMS; and (j) the matters contained in the Patent Application. 14 CMS also claims copyright in: (1) a hydraulic schematic which it commissioned and obtained in March 2013 (defined in the statement of claim as the Hydraulic Schematic); and (2) a document written by employees including Mr Holt, Mr Pallas, and Mr Reiniger setting out safety matters for the CA10MK3 pump (defined in the statement of claim as the Safety File). 15 On 3 July 2015, CMS, brought proceedings against Cellcrete and Mr Reiniger. In the proceedings, CMS alleges (in very broad terms): (1) that it had been overcharged by Cellcrete (including in breach of Mr Reiniger's fiduciary duty to CMS) by (i) charges which were significantly more than cost price where Mr Reiniger had promised only to charge cost price,(ii) double charging for a "wishing well", and (iii) overcharges for GST; (2) that in mid-2013, Mr Reiniger caused Cellcrete to order three CA10MK3 pumps and Mr Reiniger has threatened to sell the three pumps to third parties if CMS does not purchase them; (3) that in April 2015, Mr Reiniger and Cellcrete refused to supply necessary items for the CA10MK3 pump which CMS is contractually obliged to supply to the operators of the CA10MK3 pumps which it has supplied; (4) that in April 2015, Mr Reiniger contacted manufacturers and suppliers and requested that they also refuse to supply to CMS necessary items for the CA10MK3 pump; (5) that from January 2013, Mr Reiniger and Cellcrete purchased all of a particular part from a supplier to CMS, and entered an arrangement with that supplier that required the supplier not to supply to CMS (and the supplier subsequently refused to supply on 7 July 2014); (6) around 13 March 2015, Mr Reiniger attempted to sell to RUS Mining the technology underlying the CA10MK3 pump; and (7) On 29 April 2015 and 5 May 2015, Mr Reiniger sent an email to approximately 40 people and companies which had been clients of CMS, using information confidential to CMS. The contents of that email are not pleaded but in the respondents' defence they say that the email was sent to eight people or companies which included two of whom were clients of CMS, containing a letter that addressed CMS's threats to commence patent infringement actions against those people. 16 In its originating application, CMS seeks various relief which, in very broad terms, includes (1) declarations that copyright in the Safety File and the Hydraulic Schematic has vested in CMS; (2) declarations and injunctions restraining Cellcrete and Mr Reiniger from dealing with that confidential information and from using "Copyright Works"; (3) damages and equitable compensation; and (4) orders pursuant to s 80 of the Competition and Consumer Act 2010 (Cth) restraining Cellcrete and Mr Reiniger from entering any contract, arrangement or understanding that prevents or restricts or limits the supply of components to the CA10MK3 pump. 17 There is no doubt that the allegations against Cellcrete and Mr Reiniger are serious. In a defence filed last night, Cellcrete and Mr Reiniger deny the allegations. It is clear that the litigation will be robustly pursued by both parties.

The interlocutory orders sought by CMS and the evidence of Mr Reiniger's new pump 18 The originating application filed by CMS on 3 July 2015 (amended on 17 July 2015) also sought interlocutory injunctive relief. On 8 July 2015, the hearing of the interlocutory injunction application was listed (the date was subsequently amended from a hearing tomorrow to a hearing this afternoon). On 8 July 2015, the parties reached agreement on undertakings and interim orders pending the hearing of the interlocutory injunction application (see ts 14, 8 July 2015). 19 The interlocutory relief sought was set out succinctly in the interlocutory application by CMS: (1) An order pursuant to s. 1324 of the Corporations Act or the Court's equitable jurisdiction that Mr Reiniger and/or Cellcrete be restrained, by themselves, their servants or agents, from: (i) using or disclosing the Confidential Information; (ii) reproducing the Copyright Works; (iii) purchasing, ordering, obtaining, selling or offering for sale the product known as the CA10MK3 pump (the Pump) or variants; (iv) using any customer list containing or detailing customers of CMS and their contact details or email addresses; (2) A freezing order in the form attached to this application. 20 Proposed order 1(iv), concerning customer lists, was not pressed this evening. 21 When the matter was allocated to me on 16 August 2015, I made directions requiring submissions to be filed by 4 pm yesterday. I also observed that there may be difficulties with a form of interlocutory relief which seeks to restrain Mr Reiniger and Cellcrete from purchasing, ordering, obtaining, selling or offering for sale variants of the Pump. A formulation in such vague terms is almost an invitation to further dispute concerning the meaning of the word "variants" in any court order: see my discussion in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825 [1043]-[1056]. 22 Shortly before the submissions were filed last night, CMS provided Cellcrete and Mr Reiniger with a new form of proposed orders. They were described as interim orders which were sought pending the hearing of the interlocutory application. In its submissions, CMS sought to adjourn the hearing of the interlocutory injunction, which had been filed more than 6 weeks ago and had been the subject of evidence including two affidavits from CMS, also filed more than 6 weeks ago, one of which ran to hundreds of pages including exhibits. 23 I decline to adjourn the interlocutory application. The interlocutory application has been listed for more than 6 weeks. It has been the subject of considerable evidence and submissions. If the interlocutory application is not successful, and CMS wishes to bring a further application based on any substantial new material, then it is not prohibited from doing so. 24 The proposed interim orders go beyond the terms of the interlocutory application. However, some of the orders are based upon information contained in an affidavit filed by Mr Reiniger only three working days ago, on 14 August 2015. In that affidavit, Mr Reiniger says that he and Cellcrete developed a pump described as the CA2-25M3 (the Cellcrete pump) which is said (i) to be based on a design that existed before Mr Reiniger had any dealings with CMS or Mr Holt, (ii) to have different features from the CA10MK3 pump, and (iii) to be based on different schematics, drawings, and a different safety file from the CA10MK3 pump. 25 Mr Holt says that from his "observations" of photographs annexed to Mr Reiniger's affidavit the Cellcrete pump has been based on the design of the CA10MK3. He says that the two pumps have a large number of similarities and very few differences. He then sets out in considerable detail five areas which are said to be of substantial similarity. 26 In the proposed interim orders, CMS seeks to restrain Mr Reiniger and Cellcrete from any dealings with the Cellcrete pump, or any other underground pump with four particular characteristics common to the CA10MK3 pump. CMS also seeks the appointment of an independent expert, to be bound by confidentiality, to consider (without disclosure to CMS) the Cellcrete pump and (presumably) to compare it with the CA10MK3 pump and (apparently) to report to the court. 27 Mr Reiniger and Cellcrete have not had a proper opportunity to respond to these orders. A solicitor for them, Mr Bryan, provided a rapidly sworn affidavit saying that there "were pumps that combined the four components referred to by Mr Holt before the CA10MK3 existed and before Mr Reiniger had any dealings with the applicant or Mr Holt". Mr Bryan also says that Mr Reiniger is aware that two companies which supply underground pumps have included the four components from a time before the CA10MK3 existed. They say that Mr Reiniger knew this because he had dealt with, and purchased, components from those companies since the 1990s.

Principles governing interlocutory injunctions 28 In light of the manner in which this application was argued, it is necessary briefly to set out the principles concerning the grant of an interlocutory injunction. 29 CMS made no substantial submission about the balance of convenience in written submissions which focused on some disputed matters of fact and questions that will arise following any final hearing of liability (see Hurd v Zomojo Pty Ltd [2012] FCA 1458; (2012) 299 ALR 621). At this type of interlocutory hearing the court will not normally "undertake a preliminary trial" and the court will rarely attempt to resolve disputes of fact: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, 622 (Kitto, Taylor, Menzies, and Owen JJ) quoting Linfield Linen Pty Ltd v Nejain (1951) 51 SR (NSW) 280, 281 (Roper CJ in Eq). 30 The principles upon which this court grants interlocutory injunctive relief under s 23 of the Federal Court of Australia Act 1976 (Cth) were clearly set out by the Full Federal Court in Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238. As the Full Court explained, where an interlocutory injunction is sought in respect of private rights, it is necessary to identify the legal or equitable rights which are to be determined at the trial and in respect of which the final relief is sought (Samsung, 256 [52]). There are two questions: (1) has the applicant established a prima facie case (in the sense that if the evidence remains as it is there is a probability that at the trial of the action the applicant will be held entitled to relief); and (2) does the balance of convenience and justice favour the grant of an injunction or the refusal of that relief? 31 The two questions are not independent (Samsung, 261 [67]). The more that the balance of convenience supports a respondent, and the more serious the consequences for a respondent, the stronger will be the prima facie case that the applicant may need to establish to support an interlocutory injunction. 32 In written submissions Cellcrete and Mr Reiniger appeared to submit that the first limb of the test required demonstration of a serious question to be tried (which was conceded in part for the purpose of the application). They submitted that the serious question to be tried was something more easily satisfied than a prima facie case or probability of success at trial (which was not conceded). 33 This was, correctly, not the approach adopted in oral submissions by senior counsel for Cellcrete and Mr Reiniger. In Australia (although possibly unlike England, see American Cyanamid Co v Ethicon (No 1) [1975] AC 396, 408 (Lord Diplock)) the difference between a serious question to be tried and a prima facie case is a difference of language, not of substance. All the leading cases have treated the expressions interchangeably: Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at 256-257 [53]-[55]; Castelmaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 (Mason ACJ); Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at 217-218 [13] (Gleeson CJ); Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622-623 (Kitto, Taylor, Menzies and Owen JJ); Australian Broadcasting Corporation v O'Neill [2006] HCA 56; (2006) 227 CLR 57 at 68 [19].

A prima facie case 34 It is not possible, nor appropriate, in this case to assess in any detail the strength of CMS's case. That case depends in part upon oral conversations concerning confidentiality which are disputed. It will require an assessment of expert evidence concerning the nature of information said to be confidential including whether elements of the CA10MK3 pump involve confidential information and the boundaries of Mr Reiniger's fiduciary duties. For instance, Mr Reiniger says that the use of pumps to produce monolithic seals, including with the four elements that CMS relies upon, are matters that have been well known in the mining industry for many years. 35 For the purposes of this interlocutory application, I am satisfied, and proceed on the basis, that CMS has a prima facie case in relation to each of its claims. Although there were parts of CMS's claim that Mr Reiniger and Cellcrete denied to be a prima facie case, for the purposes of this application I consider that there is sufficient basis to treat the central allegations in CMS's case as satisfying the requirement of a prima facie case. In particular, there is some documentary evidence that might support CMS's central case. For example, on 16 December 2014, Mr Reiniger sent an email to Mr Valentine saying: Hahahahaha… This machine is going to work in a mine where we will have heaps of room and will probably be fed by the 4 bins I built. The side of the hopper actually comes out far enough to handle the bags anyways. My machine…not CMS…hahahaha. Now I am building them to suit my needs for selling to other customers. Cheers Have a great day !! Dave Dave Reiniger PRESIDENT/CEO Cellcrete Australia Pty.Ltd. Cellcrete Technologies Inc. 36 I do not overlook Mr Reiniger's evidence, which is not currently disputed, that he had developed and his company had sold pumps before he had even met Mr Holt and that he had even sold the original pump to Mr Holt from which this dispute originated. 37 I turn then to the balance of convenience.

(1) The patent application 38 Cellcrete and Mr Reiniger submit that the issues raised by this interlocutory injunction application should properly be determined by the Patent Office. They say that CMS's pending (but contested) patent application (a copy of which is in Annexure PH-3 of Mr Holt's first affidavit), would provide it with the right to claim relief in relation to the conduct it is presently attempting to restrain. They submit that CMS "should not be permitted to use the processes of the Court to, in effect, seek to enforce a right it does not yet have". 39 There are significant obstacles to this submission. The most apparent obstacle is that the legal principles concerning the grant or refusal of a patent are not co-extensive with the legal principles concerning breach of confidence and breach of fiduciary duty.

(2) The absence of any security for CMS's undertaking 40 Although CMS has offered an undertaking as to damages, there is doubt about the value of that undertaking. For this reason, Cellcrete and Mr Reiniger seek security from CMS in the amount of $900,000 as a condition of any undertaking or injunction ordered. They put CMS on notice of this matter at a directions hearing earlier this week. 41 In First Netcom Pty Ltd v Telstra Corporation Ltd [2000] FCA 1269; (2001) 179 ALR 725, 732 [23]-[24] the Full Court (Beaumont, Burchett and Emmett JJ) said this: There is a "usual" form of undertaking as to damages. However, since its terms are a matter for the discretionary judgment for the court, its provisions will be moulded so as to fit the circumstances of the case at hand. These circumstances may include the likelihood of the plaintiff's insolvency, which might produce an inability to discharge any liability to the party enjoined pending a final hearing that might accrue under the undertaking. In that event, the court is required to exercise its judgment as to what is appropriate in order to ensure the reality of adequate compensation, and not merely an empty form of compensation, to a party who is ultimately successful. In such a case the court may stipulate a further condition in connection with the undertaking, in the event that the plaintiff should elect to give the undertaking, and thus secure the injunction. The extra condition could be that any contingent liability under the undertaking be appropriately secured: for example, see Select Personnel Pty Ltd v Morgan & Banks Pty Ltd (1988) 12 IPR 167. Again, the plaintiff can elect to comply with this condition or decline to do so, but must accept the consequences of its election. 42 Counsel for CMS said that Mr Holt was prepared to offer a personal undertaking as security for CMS's undertaking as to damages. I consider that this offer of a personal undertaking is sufficient to reduce this concern to negligible weight.

(3) The breadth and uncertainty of the terms of the interlocutory injunction 43 The terms of the proposed interlocutory injunction are too broad on the evidence currently before me. I have already mentioned the uncertainty surrounding the expression "variants" of the CA10MK3 pump. There may be a real dispute concerning whether the Cellcrete pump is a variant of the CA10MK3 pump. It was for that reason that counsel for CMS properly sought to clarify and define the terms of the proposed injunction in this regard to focus upon pumps which had four particular elements. However, the evidence for Mr Reiniger and Cellcrete is that there are many pumps that have those elements. 44 As to the Confidential Information, which I have set out above at 13-(j) above, Mr Reiniger pointed out the imprecise nature of many of these descriptions as follows below. Other aspects are covered by the proposed undertaking to which I will refer shortly. 45 Item (a) of the alleged "Confidential Information" is expressed in general terms and necessary aspects of this information (such as what is meant by "other elements") are not identified with any specificity. 46 In relation to item (c), Mr Reiniger has not been provided with any list of manufacturers which CMS claims to be confidential. In any event, Mr Reiniger says that the manufacturers that he dealt with in relation to the CA10MK3 pump were all people or organisations that he or Cellcrete had previously dealt with. 47 Mr Reiniger says that his comments in relation to item (c) also apply to item (e) ("the manufacturers who could and did supply spare parts for the CA10MK3 pump)"). 48 Mr Reiniger also says that he has not been provided with any list of prices or profit margins that CMS claims to be confidential in relation to item (d). He says that while he has made previous exposure to pricing and quoting the CA10MK3 pump, the last occasion was in February 2015 and that the pricing and margins are different for each job given the particular circumstances of the quote. Accordingly, after several months the pricing for one job becomes obsolete. Mr Reiniger says that the little information that he might retain from February 2015 is not relevant to him or Cellcrete. 49 Item (f) is "the identity of hydraulic experts and other service providers that could and did maintain and repair CA10MK3 pumps sold by CMS". Mr Reiniger says that he has not been provided with any list of experts or service providers which CMS claims to be confidential. He also says that the other experts or service providers that he dealt with in relation to the CA10MK3 pump were all people or organisations that he, or Cellcrete, had previously dealt with. He lists those people or organisations with whom he continues to deal. 50 Item (g) refers to "the names, contact details and email addresses of clients of CMS". Mr Reiniger's evidence is that he has not been provided with these details. He also says that the clients that he dealt with in relation to the CA10MK3 pump were all people or organisations with whom he or Cellcrete that previously dealt.

(4) The adequacy of damages 51 An important factor in the assessment of the balance of convenience is whether the refusal of an interlocutory injunction would have the effect that the applicant will suffer irreparable injury for which damages will not be adequate compensation (Samsung, 259-260 [61] - [63]). 52 Damages or compensation is plainly an adequate remedy for a number of CMS's claims which are monetary claims. These are the claims by CMS that it had been overcharged by Cellcrete for matters where Mr Reiniger had promised only to charge cost price, and allegations of by double charging for a "wishing well", and overcharges for GST. 53 Ultimately, counsel for CMS conceded on this application that damages or compensation would be adequate for all the claims. His concern, however, is whether Mr Reiniger or Cellcrete has the means to meet any order for payment of damages. He suggested that the monetary award might exceed $1.2 million, even apart from claims concerning future profits about which there is no current evidentiary foundation. 54 There is no evidence from which I can currently reach a conclusion that the respondents do not have capacity to pay. Indeed, the proposed undertakings by Mr Reiniger and Cellcrete will provide for security in the form of assets of between $500,000 (on CMS's assessment) to $1.9 million (on Mr Reiniger's assessment). Mr Reiniger also claims, which is not currently disputed, that he is owed $496,000 by CMS.

(5) The need for Cellcrete and Mr Reiniger to continue their business 55 A very significant factor against the grant of an interlocutory injunction is that it would restrain the conduct of the business of Cellcrete and Mr Reiniger in the supply of mixing, pumping, and foaming equipment. There is evidence that they have operated that business for many years before CMS was incorporated and before Mr Reiniger met Mr Holt. Mr Reiniger says that he has been making mixing, pumping, and foaming equipment for more than 30 years, in all sorts of styles, and for many customers around the world. 56 Although Mr Reiniger's business would not be brought to a halt, the terms of the proposed injunction, even as clarified and narrowed in the new proposed orders, would prohibit the conduct of that part of Mr Reiniger's business concerning the sale of pumps.

(6) The proposed undertakings by Cellcrete and Mr Reiniger 57 Cellcrete and Mr Reiniger have offered numerous undertakings. They offer the undertakings upon two conditions (i) that CMS provide the usual undertaking as to damages, and (ii) that CMS provide $900,000 security in a form agreed or approved by the Court. 58 The first condition was not seriously opposed and it is appropriate. The second is not appropriate. As senior counsel for the respondents properly accepted, there is no information which would presently suggest that there is any prospect of financial loss being suffered by the respondents if it turned out after trial that the undertakings were not obligations that they should have been required to give. 59 The undertakings, given without any admission are that they and their servants and agents, until the final determination of this proceeding or further order: (1) will not do any of the following: (a) use or disclose the specifications, hydraulic schematics and safety file for the product known as the CA10MK3 pump, copies of which are contained in Exhibit PH-2 to the affidavit of Peter Holt sworn 3 July 2015; (b) disclose to or discuss with any third party, other than their lawyers or attorneys or the Australian Patent Office, the contents of Australian Patent Application No 2014262299, a copy of which is contained in Exhibit PH-3 to the affidavit of Peter Holt sworn 3 July 2015, until such time as that patent application is made publicly available by the Australian Patent Office; and (c) purchase, order, obtain, sell or offer for sale the product known as the CA10MK3 pump. (2) will leave in the possession of CMS at the premises of Solid Engineering in Kurri Kurri: (a) 2 new Coalcreter Underground Concrete and Backfilling Plants; (b) 3 new 50 tonne silos for cement or any powder storage; (c) 1 new 3 bin aggregate mixer and feeder; (d) 1 CAT/SWM635 Front End Loader (used for only 250 hours); (e) 1 Brand New Underground Powder Pod; (f) 500 meters of new 100mm concrete/backfilling pumpline ($80.00/meter); (g) 5000 meters of 40mm HP Pumpline ($15.00/meter); (h) 800 Brand new 40mm HP Hammer Unions for HP Pumpline; (i) 2 LPG 300LPM 270BAR Power Packs; (j) 1 new 300LPM 270 BAR Perkins Diesel Hydraulic Power Pack; (k) 1 ACCO tandem Axle Truck to mount Coalcreter on; and (l) 1 only Stone Dust Pod. 60 As to (2), the evidence from Mr Reiniger is that this equipment is worth approximately $1.9 million. In light of the undertakings by Cellcrete and Mr Reiniger to leave equipment to the value of $1.9 million (according to Mr Reiniger's evidence) or worth $500,000 (according to CMS's evidence), I do not currently consider that it is necessary to make any freezing order against Cellcrete or Mr Reiniger which was initially proposed to extend to freezing an amount of just under $900,000. Nor is it presently necessary to subject the undertakings to a security condition.

Conclusion 61 For the reasons given the interlocutory injunction application is dismissed. 62 I also decline to make the interim orders sought. However, as I have mentioned, if the proposed order concerning an independent expert is sought as a case management direction rather than as independent mandatory relief then there is a very strong basis for the making of such an order. It would need to be consequential upon the amendment of CMS's statement of claim but these orders can be made concurrently. 63 I will now hear from the parties about directions on this matter and also the prospect of mediation, for which this case cries out. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman.

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