Plaintiff v Defendant [2016] VSC 362 | Case summary

Supreme Court of Victoria|2016-06-17|Before: VICKERY J

The application of the Plaintiff by paragraph 1 of its summons dated 1 June 2016 for an interlocutory injunction is dismissed.
In the event that the Defendants and each of them do not provide an undertaking in an appropriate form to preserve the status quo in relation to the provision of services in Victoria and Tasmania, the application of the Plaintiff by paragraph 2 of its summons dated 1 June 2016 for an interlocutory injunction is granted, with the result that the Defendants and each of them are restrained until determination of the trial of this proceeding by judgment or further order from appointing any party, who is not the Plaintiff or its nominee under clause 29 of the Shareholders' Agreement from providing services in Victoria or Tasmania.
Until determination of the trial of the proceeding by judgment or further order, the Plaintiff by its nominee, the Australian Institute of Fitness (Vic & Tas) Pty Ltd (ACN 112 916 944) ('AIF VicTas'), is to continue to provide 'teaching out' services in the territories of Victoria and Tasmania to enable AIF VicTas to fulfil its present contractual obligations to existing students who were enrolled in courses offered by it prior to its licence with the Fifth Defendant coming to an end on 27 May 2016 to enable those students to complete their courses of study (the 'Teach Out Services').
The Teach Out Services are to be provided in accordance with the licence in writing granted by the Fifth Defendant to AIF VicTas as it was prior to its termination on 27 May 2016, save with the following adaptations, and the licence is to be read down accordingly (the 'Teach Out Licence'):

(b) The Fifth Defendant appoints AIF VicTas as its Licensee on the terms of the Teach Out Licence which shall commence on 27 May 2016 and be terminated upon determination of the trial of the proceeding by judgment or further order;

(c) The fees payable by AIF VicTas to the Fifth Defendant, commensurate with the limited service it is permitted to provide within the limited time frame, and consistently with the offer made by the Institute by letter dated 27 May 2016 enclosing the draft 'Contract to Provide Teach Out Services' which provided an indication of what would constitute a reasonable fee structure in the circumstances, are limited to $15,000.00 per month plus GST;

(d) Neither the Plaintiff or its nominee AIF VicTas or any person or agent of the Plaintiff or AIF VicTas are permitted to offer services other than the Teach Out Services within the Territory or to offer any services to persons other than the Existing Students;

(e) The Teach Out Licence may not be changed, extended, expanded or modified in any way except in writing executed by the Institute and the Plaintiff and by AIF VicTas or by leave of the Court.

On an adjourned date I will hear the parties on any matter arising from the form of the proposed orders, the giving of any necessary undertakings and the costs of the summons.

[2] Standards for NVR Registered Training Organisations 2012 (Cth).

[3] Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65, 73 [35].

Vocational Education and Training Regulator Act 2011

Plaintiff v Defendant

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)