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[2026] NSWCA 147
procedural. The notice of motion filed on 1 July 2026 was dismissed. The Court directed specified respondents to file and serve costs submissions of no more than three pages by 5:00 pm on 31 July 2026, and...
REST asked the Court of Appeal to pause parts of a compulsory share-sale process while it appealed the primary judge's decision. The Court considered REST's appeal reasonably arguable and considered that selling its shares could cause it significant financial prejudice. It also considered that the other shareholders might face loss or complications if the sale process were interrupted. The Court was prepared to grant the injunction only if REST gave the usual undertaking to compensate for loss caused by the injunction, without restricting that undertaking to REST's own shares. REST declined, so the motion was dismissed. The appeal itself remained undecided.
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2,251 words · generated 07/10/2026
REST Nominees No. 2 Pty Ltd atf Rest Infrastructure Trust held 1.73% of the shares in Australia Pacific Airports Corporation Ltd (APAC) directly. The dispute arose from APAC's Default Notice of 15 May 2025. The notice alleged a material irremediable breach of the Shareholders' Deed by Dexus Capital Investors Ltd, described as acting as sole proxy and representative of the AMP Bloc, through disclosure of APAC confidential information contrary to cl 15.4. The judgment refers collectively to the relevant Dexus entities as the Dexus Respondents.
3 cited instruments linked from this judgment.
The primary judge rejected Dexus's claims and REST's cross-claim. REST appealed on grounds concerning the construction of the deed's definition of “Shareholder”, the attribution of Dexus's alleged disclosure to REST, and whether the Default Notice was effective against REST. This Court of Appeal judgment did not decide those appeal grounds.
REST sought an injunction pending the appeal. Its motion would restrain specified Non-Dexus Bloc Respondents from accepting an offer for REST's shares under the compulsory sale process, or nominating a Qualified Buyer to acquire them. REST offered an undertaking as to damages limited to loss concerning its own shares, and undertook not to deal with those shares until the appeal was determined.
A proposed broader interim arrangement had not been agreed by all parties. The Non-Dexus Bloc Respondents were prepared to give an undertaking concerning the sale process if the Dexus Appellants and REST gave a set of undertakings. REST agreed to give the listed undertakings in relation to its directly held shares. Dexus did not agree to the proposed arrangement, and the Non-Dexus Bloc Respondents did not consider REST's shares could be separated from Dexus's shares for this purpose (at [19]-[23]).
Price AJA found the appeal at least reasonably arguable and considered the balance of convenience favoured the injunction in principle. But the Court considered REST's proposed undertaking as to damages too narrow. It offered REST the choice of expanding the undertaking or proceeding without the injunction. REST did not have instructions to expand it, so the motion was dismissed (at [46], [59]-[66]).
The judgment applied a staged assessment. First, it considered whether REST's appeal was reasonably arguable. The Court said this inquiry is usually limited: it does not involve deciding the appeal in advance, but it permits a preliminary assessment of whether there is an arguable case relevant to the interlocutory relief sought (at [44]-[45]). After considering the appeal grounds and the parties' submissions, the Court found the appeal at least reasonably arguable (at [46]).
Second, the Court weighed the practical prejudice on each side and the utility of the appeal. REST's evidence identified a possible capital gains tax liability estimated at $19 million, based on an estimated transfer price, estimated cost base and an assumed 10% tax rate (at [49]). The evidence also raised a risk that the tax liability could not be recovered even if REST later succeeded. If shares were transferred back, landholder duty might also be payable, estimated by REST's evidence at 6.5% of its proportionate share of APAC's unencumbered land value (at [50]). The Court accepted the evidence of possible significant and irreversible financial prejudice (at [52]). Those estimates were evidence before the Court, not findings that the amounts would necessarily be payable.
The respondents' asserted prejudice concerned how the deed's sale process would operate if the injunction prevented acceptance of an offer for REST's shares. The process included time limits associated with determining Fair Market Value. The respondents argued that a sale process affecting Dexus shares but excluding REST's shares could be inconsistent with the deed's machinery, create arguments about whether time limits had expired, and expose them to further litigation (at [53]). The Court focused on the timing condition. The Fair Market Value appeared not yet to have been determined, and the identified prejudice depended on its determination before the appeal hearing on 20 October 2026 (at [54]-[56]). No compelling commercial reason had been established for completing the determination before the appeal was resolved, or for not postponing it (at [57]).
On that basis, the Court concluded that the balance of convenience favoured preserving the utility of REST's appeal (at [59]). That conclusion was not the end of the inquiry. A party seeking an injunction may be required to provide an undertaking to compensate for loss caused by the injunction. The respondents argued REST's proposed undertaking did not cover possible loss beyond REST's own shares. The Court considered that REST had not satisfactorily explained why the undertaking should be limited in that way (at [60]-[61]).
The Court therefore indicated it would make the requested orders if REST gave the usual undertaking as to damages without limiting it to its own shares, along with an undertaking not to deal with its shares during the appeal (at [62]-[63]). REST could elect whether to provide the broader undertaking. After an adjournment to obtain instructions, its counsel said there were no instructions to expand it. The Court then dismissed the motion (at [64]-[66]). The decisive point was thus not that the Court had found the appeal unarguable or the balance of convenience unfavourable. It was that REST did not accept a condition the Court considered necessary for the relief.
The judgment presents the governing approach as established rather than announcing a new test. It draws on Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd [2017] NSWCA 331 for the broad purpose of relief pending appeal: preventing the subject matter of an appeal from being destroyed or substantially impaired so that a successful appeal would be nugatory. It also adopts the discretionary balancing of hardship and inconvenience, with factors that may include the likely duration of relief, the applicant's promptness and the strength of the proposed appeal (at [44]).
For the strength of the appeal, the judgment describes the usual inquiry as whether the appeal is reasonably arguable. That threshold was applied without resolving REST's construction arguments or predicting the appeal's outcome (at [45]-[46]). The judgment also invokes the question, drawn from Jesasu Pty Ltd v Minister for Mineral Resources and restated in Network Ten Pty Ltd v Rowe, of whether and when interlocutory power should be used to safeguard the utility of the right of appeal (at [48]).
The decision's practical contribution is its application of these principles to a proposed injunction affecting a contractual sale process. It shows that even where arguability and balance of convenience favour relief, the Court may address risks to respondents through the terms on which relief is granted. Here, the Court treated an undertaking as to damages that covered the relevant potential loss as necessary to the relief it was willing to order (at [60]-[64]).
The judgment does not establish that every applicant must always give an unlimited undertaking, or that a limited undertaking is inadequate in every case. The reasoning is tied to the risks identified in this proceeding, the scope of REST's proposed undertaking and the Court's assessment of fairness. Nor does the decision determine whether the Shareholders' Deed permitted a separate or “tranched” sale of REST's shares. That issue was contested, but the Court did not resolve it in this motion judgment.
At [44], the judgment sets out the general purpose of relief pending appeal: protecting the subject matter of the appeal from being destroyed or substantially impaired. In plain English, the Court considers whether events before the appeal is heard might make a successful appeal practically useless.
At [45]-[46], Price AJA states that the appeal inquiry is constrained to whether it is reasonably arguable and concludes that REST's appeal met that threshold. This was a preliminary assessment for the motion, not a decision that REST would succeed.
At [52], the Court accepts that REST may suffer significant and irreversible financial prejudice if relief is not granted. That acceptance concerns the evidence and risk presented on the motion. It does not establish that the estimated tax consequences would arise in a particular amount.
At [57], the Court says the respondents' asserted prejudice depended on Fair Market Value being determined before the appeal hearing. The point was that the asserted risk was conditional, and the material did not show a compelling need to complete that determination earlier.
At [59], the Court says the balance of convenience favoured relief to preserve the appeal's utility. Read with [60]-[66], this did not mean the Court ultimately granted the injunction. The undertaking remained a separate condition.
At [61], the Court explains why it required REST to bear a broader risk of damages: the respondents might suffer loss because of the injunction, and the Court considered it fair to mould relief so REST bore the financial consequences of that risk.
At [64]-[66], the Court records the election given to REST. It could provide the expanded undertaking to secure the injunction, or decline and have the motion dismissed. REST declined, and dismissal followed.
The decision is relevant as an example where a party seeks interlocutory relief pending appeal to protect an appeal from practical impairment. The circumstances included a challenged judgment affecting a compulsory contractual sale process, a proposed transfer of shares in a private infrastructure company, evidence of potentially unrecoverable tax costs, and an appeal listed for hearing within a relatively defined period (at [47], [49]-[52]).
It is particularly instructive where the proposed injunction may affect parties other than the applicant. The respondents argued that restraining acceptance of an offer for REST's shares could disrupt the deed's sale mechanism for the wider group of Dexus Bloc shares, create issues about time limits, and lead to further litigation (at [30]-[38], [53]). The judgment shows the Court examining whether those risks depended on a future event, here the timing of the Fair Market Value determination, and whether there was evidence of a commercial need for that event to occur before the appeal (at [54]-[58]).
The undertaking issue is central to the result. The case illustrates that a court may be willing to grant relief in principle but require an undertaking calibrated to the potential loss the injunction could cause. It is relevant where an applicant proposes to limit the undertaking to its own property or direct interests while the injunction may affect a broader transaction or other parties. The decision does not prescribe a universal formula for such undertakings. Its reasoning depends on the identified risk, the proposed scope of relief and the evidence before the Court.
The judgment also highlights the importance of distinguishing the applicant's appeal from related appeals. Price AJA treated REST's grounds and the utility of its appeal as separate from Dexus's appeal, despite the overlap in the underlying dispute (at [59]). That was relevant to the Court's assessment of REST's own application.
The judgment text provided does not refer to any later court treatment of this decision. It was delivered on 24 July 2026, and the material supplied contains no subsequent decisions discussing or applying it. It would therefore be unsupported to state that later courts have followed, distinguished or criticised it.
The decision itself refers to earlier authorities, including Yeshiva Synagogue, Jesasu, Network Ten, Varley, Select Personnel, First Netcom and Goater. Those authorities are cited or relied on in explaining the principles concerning relief pending appeal, undertakings and an applicant's election whether to provide an undertaking (at [44]-[48], [61], [64]). Those are relationships between this judgment and the earlier cases, not evidence of subsequent treatment of this judgment.
For research purposes, the available text establishes the decision's reasoning and disposition only. Later judicial treatment would require later decisions or an updated case-law source beyond the material supplied here.
The appeal's merits remained unresolved. In particular, this judgment did not decide whether the primary judge correctly construed the definition of “Shareholder” in cl 1.1, whether DCIL's alleged disclosure was attributable to REST, or whether the Default Notice was effective against REST. Those matters were identified in REST's appeal grounds, but the motion judge's finding was limited to reasonable arguability (at [16], [42], [46]).
The judgment also did not decide whether the Shareholders' Deed permitted the compulsory sale process to proceed in separate tranches, or how the relevant time periods would operate if an offer concerning REST's shares could not be accepted while other shares proceeded through the process. These were contested issues raised by APAC and the Non-Dexus Bloc Respondents (at [27]-[38], [53]). The Court's discussion of potential prejudice focused on its dependence on the timing of the Fair Market Value determination, rather than deciding the deed's final construction.
The Court did not decide whether the tax estimates would ultimately be payable, whether they could be recovered, or what consequences would follow from a transfer and possible return of shares. It accepted evidence of potential prejudice for the interlocutory balance, while noting that the magnitude of the CGT liability was difficult to assess (at [49]-[52]).
Finally, the decision does not specify how an undertaking as to damages should be assessed in all cases involving a multi-party transaction. Its holding is limited to the motion before it: the Court considered the proposed limitation inadequate in the circumstances, offered REST a choice to provide a broader undertaking, and dismissed the motion when REST declined (at [60]-[66]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: REST Nominees No 2 Pty Ltd atf Rest Infrastructure Trust v Australia Pacific Airports Corporation Ltd [2026] NSWCA 147
Hearing dates: 13 July 2026
Date of orders: 24 July 2026
Decision date: 24 July 2026
Before: Price AJA
Decision: (1) Dismiss the notice of motion filed on 1 July 2026.
(2) As to costs:
(a) Direct that any written submissions by the first, second, third, fourth, fifth, ninth and tenth respondents, not exceeding 3 pages, be filed and served by 5:00pm on 31 July 2026.
(b) Direct that any written submissions by the appellant, not exceeding 3 pages, be filed and served by 5:00pm on 7 August 2026.
(c) Note that costs will be determined on the papers.
Catchwords: CIVIL PROCEDURE – injunctive relief pending appeal – where appellant seeks to restrain sale of shares pending determination of the appeal – whether appeal is reasonably arguable – whether balance of convenience favours the appellant – whether undertaking as to damages is inadequate – whether appellant elects to give an adequate undertaking
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59
Income Tax Assessment Act 1997 (Cth)
Cases Cited: Berhero Pty Ltd v Senibina Sentral SDN BHD [2024] NSWCA 110
Dexus Capital Investment Services Pty Ltd atf Dexus Diversified Infrastructure Trust A, Australia Pacific Airport Funds & Australia Pacific Airports Fund No. 4 v Australia Pacific Airports Corporation Ltd [2025] NSWSC 519
Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports Corporation Ltd [2026] NSWSC 600
Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports Corporation Ltd (No 2) [2026] NSWSC 648
Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports Corporation Ltd (No 3) [2026] NSWSC 684
First Netcom Pty Ltd v Telstra Corp Ltd (2000) 101 FCR 77; [2000] FCA 1269
Garnock v Black [2005] NSWCA 475
Goater v Commonwealth Bank of Australia [2014] NSWCA 265
Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110
Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128
Network Ten Pty Ltd v Rowe [2006] NSWCA 4; (2006) 149 IR 273
Select Personnel Pty Ltd v Morgan & Banks Pty Ltd (1988) 12 IPR 167
State of New South Wales v Naaman [2018] NSWCA 293
Varley v Varley [2006] NSWSC 1025
Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd [2017] NSWCA 331
Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142
Category: Procedural rulings
Parties: REST Nominees No. 2 Pty Ltd (ACN 164 610 842) atf Rest Infrastructure Trust (Appellant)
Australian Pacific Airports Corporation Ltd (ACN 069 775 266) (First Respondent)
J.P. Morgan Nominees Australia Ltd (ACN 002 899 961) acting as nominee for JPMorgan Chase Bank, N.A. (Sydney Branch) in its capacity as custodian for SAS Trustee Corporation (Second Respondent)
Utilities of Australia Pty Ltd (ACN 063 384 127) atf Utilities Trust of Australia (Third Respondent) (submitting appearance)
IFM Investors (Nominees) Ltd (ACN 003 969 891) atf DAF Private Capital Sub-Trust APAC (Fourth Respondent)
The Northern Trust Company (ACN 126 279 918) as custodian for the Future Fund Board of Guardians (Fifth Respondent)
Dexus Capital Investment Services Pty Ltd (ACN 063 986 989) atf Dexus Diversified Infrastructure Trust A, Australia Pacific Airports Fund, Australia Pacific Airports Fund No. 4, Australia Pacific Airports Fund No. 2 and Dexus Wholesale Airport Fund (Sixth Respondent)
Dexus Capital Investors Ltd (ACN 001 777 591) atf Australia Pacific Airports Fund 3 and Infrastructure Trust No. 1 (Seventh Respondent)
InfraBridge (GIF Cayman Holdco) 4, L.P. (Eighth Respondent)
SAS Trustee Corporation (Ninth Respondent)
Future Fund Board of Guardians (Tenth Respondent)
Representation: Counsel:
M Gvozdenovic / M Taylor (Appellant)
J Giles SC / B Lambourne (First Respondent)
J Kennedy / S Murray (Second and Ninth Respondents)
C Beshara (Third Respondent)
AJ Myers KC / Z Hillman (Fourth Respondent)
D Heaton (Fifth and Tenth Respondents)
D Wong / CS Rogers (Sixth, Seventh and Eighth Respondents)
Solicitors:
Jones Day (Appellant)
Norton Rose Fulbright (First Respondent)
Corrs Chambers Westgarth (Second and Ninth Respondents)
Ashurst Perkins Coie (Third Respondent)
Gilbert + Tobin (Fourth Respondent)
Baker McKenzie (Fifth and Tenth Respondents)
Arnold Bloch Leibler (Sixth, Seventh and Eighth Respondents)
File Number(s): 2026/250426
Publication restriction: Nil
PRICE AJA: At the heart of the appellant’s, Rest Nominees No. 2 Pty Ltd atf Rest Infrastructure Trust (“REST”), application for injunctive relief is the Restated Shareholders’ Deed originally dated 13 June 1997 (as amended from time to time) (“the Shareholders’ Deed”) which relates to the operation of Australia Pacific Airports Corporations Ltd (“APAC”) and governs the relationship between shareholders in APAC. APAC holds 50-year leases in Melbourne’s Tullamarine Airport and Tasmania’s Launceston Airport.
The appellant directly holds 1.73% of the shares in APAC.
The appellant became a party to litigation which arises from APAC’s Default Notice dated 15 May 2025 issued under cl 12.2 of the Shareholders’ Deed asserting “a material Irremediable Breach” of the Shareholders’ Deed was committed under cl 12.1 by “Dexus Capital Investors Limited … (Dexus)” and “as the sole proxy and representative of the AMP Bloc as defined in the Shareholders’ Deed … (collectively the Dexus Entities)” for having disclosed APAC’s confidential information contrary to cl 15.4 of the Shareholders’ Deed. Dexus Capital Investment Services Pty Ltd (“DCIS”) is the sixth respondent to the appellant’s application for injunctive relief and Dexus Capital Investors Ltd (“DCIL”) is the seventh respondent.
DCIS and DCIL (referred to collectively as “Dexus”) challenged the validity of the Default Notice which was heard by Hammerschlag CJ in Eq (“the primary judge”) in April 2026. In the judgment delivered on 29 May 2026, the primary judge referred to “[t]wo blocs of APAC shareholders” as being “locked in mortal combat”: Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports Corporation Ltd [2026] NSWSC 600 at [7]. His Honour explained at PJ[8]-[9]:
“[8] On one side is the ‘AMP Bloc’, defined in cl 1.1 of the Shareholders’ Deed to mean AMP and all Affiliates of AMP. ‘Affiliates’ are wholly owned subsidiaries of a Shareholder, the Shareholder’s holding company if it is wholly owned, and co-wholly owned subsidiaries, as well as trusts acting in a trustee or custodial capacity for the Original Shareholders (Original Shareholder is a defined term) and certain specified subsequent Shareholders. It is more apt now to refer to the AMP Bloc as the Dexus Bloc, given the takeover. But the Shareholders’ Deed still refers to the AMP Bloc, so I will use the two descriptions interchangeably. The Dexus Bloc comprises DCIS and DCIL (who are trustees of various trusts), and two other companies, InfraBridge (GIF Cayman Holdco) 4, L.P. (InfraBridge) … and [REST] ... DCIL manages all the shareholdings of the Dexus Bloc members pursuant to a series of agreements.
[9] On the other side is the other APAC shareholders (the Non-Dexus Bloc Shareholders).” (emphasis in original)
The primary judge categorised the appellant as being a “Dexus Bloc Non-Selling Shareholder”: at PJ[31]. Whereas DCIS and DCIL as trustees in respect of the Funds referred to and InfraBridge were categorised as being the “Dexus Bloc Selling Shareholders”: at PJ[31].
InfraBridge is the eighth respondent to the appellant’s application. DCIS, DCIL and InfraBridge are conveniently referred to as the Dexus Respondents.
The primary judge dismissed at PJ[445] Dexus’ claims. Furthermore, his Honour dismissed at PJ[438] the appellant’s cross-claim against APAC for declarations that it did not breach the Shareholders’ Deed, and that the Default Notice was not valid against it. The dismissal of the cross-claim included in the alternative, a declaration sought by the appellant that the Default Notice did not require the appellant to dispose of its shares which the primary judge observed was “presumably, intending to distinguish between its shares and other shares to which the Default Notice is directed”.
APAC and the Non-Dexus Bloc Shareholders were the successful parties in the proceedings below.
APAC is the first respondent to the motion.
The Non-Dexus Bloc Shareholders are respondents to the motion as follows (which I will refer to as “the Non-Dexus Bloc Respondents”):
J.P. Morgan Nominees Australia Ltd (as nominee for JPMorgan Chase Bank, N.A. (Sydney Branch), as custodian for SAS Trustee Corporation, the NSW Treasury Corporation) (“TCorp”), the second respondent;
Utilities of Australia Pty Ltd (atf Utilities Trust of Australia) (“UTA”), the third respondent;
IFM Investors (Nominees) Ltd (atf DAF Private Capital Sub-Trust APAC) (“IFM”), the fourth respondent;
The Northern Trust Company (as custodian for the Future Board of Guardians) (“Future Fund”), the fifth respondent;
SAS Trustee Corporation, the ninth respondent; and
Future Fund Board of Guardians (“Future Fund”), the tenth respondent.
The second and ninth respondents will be referred to as TCorp, the fifth and tenth respondents as the Future Fund.
Prior to the proceedings before the primary judge, on an application from Dexus, Stevenson J granted an injunction on 21 May 2025 (“the Stevenson Injunction”), which upon Dexus giving undertakings, restrained APAC from acting on the Default Notice: Dexus Capital Investment Services Pty Ltd atf Dexus Diversified Infrastructure Trust A, Australia Pacific Airport Funds & Australia Pacific Airports Fund No. 4 v Australia Pacific Airports Corporation Ltd [2025] NSWSC 519. The Stevenson Injunction was in the following terms at [1]:
“… Upon [the Dexus Respondents] (by their counsel) giving to the Court (1) the usual undertaking as to damages and (2) an undertaking not to sell, transfer or otherwise dispose of their shares in the first defendant (APAC) until the final determination of these proceedings, APAC be restrained from taking the following steps foreshadowed in or contemplated by the ‘[APAC] Default Notice’ dated 15 May 2025 (Default Notice):
(a) any action to suspend or take away any of the rights that the directors of APAC who were appointed by [the Dexus Respondents] would otherwise have if the Default Notice had not been issued, including any steps to prevent those directors from participating in and voting at meetings of APAC’s board and its committees and receiving the board papers for such meetings and receiving and voting on any circular resolutions;
(b) any action to suspend or take away any of the rights that the [the Dexus Respondents] and [REST and DCIS] have to vote in respect of the APAC shares that they hold;
(c) any action to suspend or take away the rights that the plaintiffs and [REST and DCIS] would have to information under clause 6.6 of the ‘Shareholders’ Deed in relation to the operation of [APAC]’ (Shareholders’ Deed) if the Default Notice had not been issued;
(d) instructing APAC’s auditor (Deloitte) to complete a determination of Fair Market Value as contemplated by clause 12.3(b) of the Shareholders’ Deed (the Determination) but on the basis that APAC is permitted to instruct Deloitte to commence and continue the process of Determination provided that Deloitte is given an instruction by APAC not to complete or finalise its Determination until five business days after the final determination of these proceedings’.” (emphasis in original)
“Subject to appropriate protections to the Dexus Bloc against any irreversible consequences of permitting the sale process under the Shareholders’ Deed to go forward, my view, applying conventional principles, is that the successful parties should have the fruits of their victory.”
“[6] Adequate protection will be provided if APAC and the Non-Dexus Bloc Shareholders undertake to the Court that if any Sale Shares pass hands under the process prior to the determination of any appeal, they will, until the appeal is determined hold them and not deal with them, and if the appeal succeeds with the consequence that the Dexus Bloc are entitled to get them back, give them back. I gathered that such an undertaking will be forthcoming.
[7] REST has a slightly different concern that there will be capital gains tax consequences if its shares are sold. It was not suggested that these consequences (which might be substantial) are irreversible if the appeal succeeds. Counsel for REST was not in a position to inform the Court whether these consequences will arise because of proposed legislative changes presently before Parliament but not yet passed. The problem may be worse if for some reason the Non-Dexus Bloc Shareholders do not buy and the shares go to a third party. This eventuality (which seems most unlikely) would be catered for by any outside purchaser giving an undertaking, mutatis mutandis, in the terms which APAC and the Non-Dexus Bloc Shareholders will give and the vendors undertaking not to sell without obtaining such an undertaking from the purchasers.”
On 12 June 2026, the parties being unable to reach an agreement on the form of an undertaking, the primary judge lifted the stay and dissolved the Stevenson Injunction: Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports Corporation Ltd (No 3) [2026] NSWSC 684.
On 17 June 2026, the appellant filed a Notice of Appeal contending that the primary judge had erred on the following grounds:
“1 The primary judge erred in finding that:
a. on the proper construction of the definition of ‘Shareholder’ in cl 1.1 of the Shareholders’ Deed:
i. ‘Original Shareholder’ is taken to be a reference to [DCIL]: PJ[296]-[297], [309]; and
ii. shares held by [REST] in [APAC] are taken to be held by DCIL: PJ[305];
b. by reason of the definition of ‘Shareholder’, DCIL’s disclosure of ‘Confidential Information’ in breach of cl 15.4 of the Shareholders’ Deed is deemed to be a breach by REST: PJ[305], [314]; and
c. the Default Notice issued by APAC was therefore valid and effective as against REST: PJ[23]-[24], [438]-[439].
2 The primary judge ought to have found that:
a. on the proper construction of the definition of ‘Shareholder’ in cl 1.1 of the Shareholders’ Deed:
i. ‘Original Shareholder’ is defined in cl 1.1 as meaning, relevantly, Australian Mutual Provident Society (AMP), not DCIL; and
ii. to the extent that the definition of ‘Shareholder’ applies, shares held by REST in APAC are taken to be held by AMP, not DCIL;
b. irrespective of the definition of ‘Shareholder’, DCIL’s disclosure of ‘Confidential Information’ in breach of cl 15.4 of the Shareholders’ Deed is not deemed to be a breach by REST;
c. the Default Notice was therefore invalid and ineffective as against REST.”
A separate Notice of Appeal was filed by Dexus on 25 June 2026.
The application for injunctive relief was brought by way of notice of motion filed on 1 July 2026. The appellant seeks the following orders:
“1. Upon the appellant (by its counsel) giving to the Court (1) the usual undertaking as to damages in respect of the shares in [APAC] held directly by the appellant (REST Shares), and (2) an undertaking not to sell, transfer, dispose, deal with or otherwise encumber the REST Shares until the final determination of these appeal proceedings (End Date):
a. the second, third, fourth, fifth, ninth, and tenth respondents be restrained from accepting any offer in respect of the REST Shares arising from the document titled ‘Australia Pacific Airports Corporation Limited (ACN 069 775 266) (Company) Default Notice’ issued on 15 May 2025 until the End Date; and
b. the second, third, fourth, fifth, ninth, and tenth respondents be restrained from nominating a ‘Qualified Buyer’ as defined in the Shareholders’ Deed in relation to the operation of the first respondent (Shareholders’ Deed) to acquire any of the REST Shares pursuant to clause 12.3(c) of the Shareholders' Deed until the End Date.
2 Costs of this motion be costs in the cause.” (emphasis in original)
“1. Upon the sixth, seventh, and eighth respondents (the Dexus Appellants) and Appellant giving:
a. the usual undertaking as to damages;
b. an undertaking not to sell, transfer or otherwise dispose of their shares in [APAC] while this paragraph remains in effect; and
c. an undertaking that they will not, at any time, assert, plead or otherwise contend, for any purpose or in any proceedings, that:
i. the 21-day period specified in [cll] 11.5 and 11.7 of the Shareholders’ Deed for acceptance of or for deemed rejection of an offer of shares arising from the Default Notice issued on 15 May 2025 (Offer);
ii. the period under the Shareholders’ Deed (if any) to nominate a ‘Qualified Buyer’ as defined therein (Qualified Buyer) under cl 12.3 thereof; or
iii. any other period under the Shareholders' Deed (if any) consequent on (i) or (ii) above,
has commenced before (or has expired before 21 days after) the date specified immediately below (or the later date if they are different),
the second, third, fourth, fifth, ninth, and tenth respondents undertake:
a. not to accept any Offer; and
b. not to nominate a Qualified Buyer or Qualified Buyers to acquire any share in APAC pursuant to clause 12.3(c) of the Shareholders’ Deed,
until the date which is 7 days after final resolution of the Dexus Appeal and the REST Appeal (or the later date if they are different).”
By letter dated 7 July 2026, the solicitors for the appellant advised the solicitors for the Future Fund that the appellant was prepared to give the “undertakings set out in (a)-(c) of paragraph 1 of [the 6 July Undertaking] in respect of the shares it holds directly in APAC” (see [19] above).
Given the appellant’s consent to the 6 July Undertaking, by an email the next day on 8 July 2026, the solicitors for the Future Fund requested that the solicitors for Dexus provide a substantive response to their proposed undertaking before the hearing of this motion.
In response, by letter dated 9 July 2026, the solicitors for Dexus informed the solicitors for the Future Fund that it was not prepared to accept the 6 July Undertaking unless the other conditions it proffered were included, which have not been acceptable to the Non-Dexus Bloc Shareholders.
As a consequence of Dexus’ non-acceptance of the 6 July Undertaking, the appellant is now placed in the position of having to seek the application for injunctive relief even though the proposed undertakings were acceptable to it and the Non-Dexus Bloc Shareholders. The proposed undertakings could not proceed with the appellant’s acceptance alone as the Non-Dexus Bloc Shareholders maintain that there could not be any “disentanglement” between the appellant’s shares and the Dexus shares.
During the hearing, the following affidavits were read without objection: the appellant’s solicitor, James Ryan Thomas Ebert affirmed on 1 July 2026 (“the Ebert Affidavit”); the Future Fund’s solicitor, Peter Michael Lucarelli sworn on 10 July 2026 (“the Lucarelli Affidavit”); and APAC’s solicitor, Ann Donohue sworn on 10 July 2026 (“the Donohue Affidavit”).
(a) the appellant’s appeal was of right; (b) the appellant’s application was to preserve the status quo, no more relief was sought than was necessary pending the outcome of the appeal. The appellant was seeking a narrower form of the Stevenson Injunction; (c) the appeal which concerns a narrow issue of construction primarily concerning the definition of “Shareholder” raises an arguable point; (d) the Non-Dexus Bloc Respondents had not identified any special prejudice in correspondence which was unsurprising as the application would simply result in the continuation of the Stevenson Injunction; (e) there was no reason the Court of Appeal could not deal with the appeal promptly; (f) if the injunction was not granted, there was a real risk that the appellant would suffer serious damage that could not be repaired by a successful appeal as the appellant could be compelled to sell its shares in APAC to the other respondents. The appellant pointed out that APAC is a private company whose assets and operations were unique and its shares were not readily available on the market. The appellant contended that the transfer of title in that unique asset as a consequence of the Default Notice could not be redressed by a successful appeal as:
(i) the appellant would incur a substantial capital gains tax (“CGT”) liability upon the divestiture of its shares which may not be recoverable; (ii) once divested, there would be nothing to prevent those shares from being transferred, encumbered, or otherwise dealt with; (iii) even if the shares could be returned to the appellant upon a successful appeal, the appellant would likely be required to pay landholder duty that could not be recovered; and
(g) the appellant submitted that the injunction would not result in APAC or the Non-Dexus Bloc Shareholders suffering any prejudice that could not be addressed by the undertaking offered by the appellant which represented a continuation of the status quo being undertakings previously given in support of the Stevenson Injunction.
APAC submitted that the orders sought by the appellant were inappropriate as they do not include mutual undertakings from the appellant and Dexus that preserve APAC’s contractual rights. APAC contended that the undertakings agreed to by the appellant on 7 July 2026 (see [20] above) were necessary to prevent the extinguishment of APAC’s and the Non-Dexus Bloc Respondents’ rights to sell and acquire the shares owned by the appellant and Dexus in the event APAC prevailed in the appeal. APAC referred to the specific procedure and timeframe for the compulsory sale process in cl 12.3 of the Shareholders’ Deed. APAC contended that if: (i) the orders sought by the appellant are made in their current form, and (ii) the “Fair Market Value” was determined during the course of the appeal; but (iii) the Non-Dexus Bloc Respondents are prevented from accepting an offer, there is a risk that the injunction will cause the parties’ contractual rights to lapse which would nullify the subject matter of the primary judgment and the appeal.
APAC referred to the primary judge’s decision in the primary judgment and stated that, on the proper construction of the Shareholders’ Deed, the appellant’s shareholding was part of the Dexus Bloc shareholding. Once it was seen that the appellant had both a direct and indirect shareholding in APAC, then the appellant’s proposition was “wholly a-contractual”. APAC further submitted that the appellant’s proposition involves a departure from that contractual process, to which the Dexus Respondents do not agree.
APAC contended that it ought not be exposed to the risk of departure from the mandatory mechanism in the Shareholders’ Deed. APAC also submitted that “orthodox means by which to avoid this result is to require undertakings from [the appellant] and the Dexus Respondents in the form agreed by [the appellant] on 7 July 2026 as a condition of the grant of interlocutory relief”. APAC further submitted that undertakings by the appellant alone cannot fix the problem.
TCorp pointed out that the appellant’s injunction restrains the Non-Dexus Bloc Shareholders from accepting any offer received pursuant to cl 12.3 but does not, of itself suspend the running of time in cll 11.5 and 11.7 of the Shareholders’ Deed. TCorp submitted that it would be open to both the appellant and Dexus to argue that, because the offer to acquire the appellant’s shares was not accepted within 21 days of its receipt (even though an injunction restrained the other shareholders from accepting the offer), cl 11.7 has deemed the offer to be rejected. This would cause the Non-Dexus Bloc Shareholders to lose the opportunity to acquire the appellant’s shares pursuant to the cl 12.3 process, regardless of the appeals by the appellant and Dexus being dismissed.
Furthermore, TCorp pointed out that the injunction does not seek to restrain the cl 12.3 sale process from continuing with respect to the Dexus Bloc’s shares, with the effect that it seeks to treat the shares to be offered by APAC to the non-defaulting shareholders as being distinctly identifiable and severable. This was contrary to the status quo. TCorp referred to the primary judge’s findings at PJ[295]-[314], that all of the Dexus Bloc shares were deemed to be shares of the defaulting shareholder, DCIL, with all of those shares then subject to the cl 12.3 process. TCorp submitted that there was no express provision in cl 12.3 for only some of the shares to be subject to the process while others remained excluded.
TCorp contended this created the risk that, if the Non-Dexus Bloc Shareholders accepted an offer to acquire only those shares legally held by Dexus and not the shares directly held by the appellant (in order to comply with an injunction), it would be open to Dexus to claim, following any successful appeal, that the entire sale process under cl 12.3 was flawed or void. TCorp argued the fact that the appellant’s injunction would expose the Non-Dexus Bloc Shareholders to the risk of a claim that would not otherwise arise was sufficient to show a risk of harm.
TCorp pointed out that any undertaking provided by the appellant would not prevent Dexus from taking points in a bid to preclude the Non-Dexus Bloc Shareholders from enjoying their rights under cl 12.3.
TCorp submitted that the appellant did not offer the usual undertaking as to damages since the undertaking was limited to only damages in respect of the shares held directly by the appellant. TCorp contended this allowed Dexus to take a point that the entire sale process failed because of the appellant’s injunction. This would put the Non-Dexus Bloc Shareholders in a position where they would have no recourse to the appellant for the losses they then suffered referable to the other Dexus Bloc shares. TCorp further submitted that this could cause significant irreparable harm.
IFM supported the submissions made by other Non-Dexus Bloc Shareholders but pointed out that the treatment by the appellant in its application for injunctive relief as separately from Dexus was productive of “the mischief of fragmentation contrary to the Bloc”, which would be “inimical to the congruent operation of the various components of the Shareholders’ Deed as a whole” referred to by the primary judge at PJ[307]. IFM pointed out that the machinery of the Shareholders’ Deed did not contemplate such a situation.
IFM submitted that the limited undertaking as to damages proposed by the appellant did not sufficiently protect the Non-Dexus Bloc Shareholders from the potential prejudice they may suffer as a result of the injunctive relief sought. IFM referred by contrast to the undertakings proffered to the Dexus Bloc Shareholders which had been accepted by the appellant, but not Dexus.
The Future Fund supported the submissions made by the other Non-Dexus Bloc Shareholders that emphasised a fundamental problem with the injunction was the inadequacy of the undertakings as to damages which was limited to the appellant’s shares. The Future Fund contended that there was no basis for the limitation, that the price of an injunction in a commercial case was an ordinary undertaking as to damages which the appellant did not offer. The Future Fund argued that the application should fail on this ground alone.
The Future Fund referred to further prejudice being the “tranche” of the sale process under cll 11 and 12.3 of the Shareholders’ Deed, as those clauses did not expressly accommodate that and the appellant and Dexus did not undertake to rely on this. Prejudice was also submitted to arise from the likelihood of further litigation as Dexus and the appellant had, to date, taken every point in the extensive and costly litigation.
The Future Fund argued that the appellant must show not just that an appeal would be rendered nugatory if relief is not granted which is not so, as retransfer of shares is possible. Rather, the appellant must establish a prima facie case on appeal and show that the balance of convenience favours relief citing Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142 at [7] (Leeming JA). The Future Fund contended that the appellant made no effort to show its case on appeal is arguable and nevertheless, its case was at best weak. The Future Fund submitted that in light of the prejudice identified by the Non-Dexus Bloc Shareholders, the balance of convenience favoured no relief. It was further emphasised that the failure to give the usual undertaking is itself fatal.
The oral argument in the hearing before me focussed on the issue of whether the appellant’s interests could be severed from those of Dexus, given that the appellant was prepared to give the undertakings sought by the Non-Dexus Bloc Respondents (see [20] above), whereas Dexus was not. The appellant’s counsel, Mr Gvozdenovic, submitted that the Non-Dexus Bloc Shareholders’ opposition to a differentiated or tranched sales process assumed the correctness of the primary judge’s findings on the interpretation of the definition of a “Shareholder” under the Shareholders’ Deed which was the principal issue to be decided on appeal: Tcpt, 13 July 2026, p 4(40-50). Mr Gvozdenovic further argued that the Non-Dexus Bloc Respondents had not identified any actual harm, prejudice or complexity with a tranched process.
In oral submissions, senior counsel for APAC, Mr Giles SC, robustly maintained that the primary judge’s findings at PJ[296]-[297] were correct and a tranched approach to the sale of the Dexus Bloc shares was not permissible under cll 11 and 12 of the Shareholders’ Deed. Mr Giles’ submissions were supported by King’s counsel for IFM, Mr Myers KC, and counsel for TCorp, Future Fund and UTA, respectively being Messrs Kennedy, Heaton and Beshara.
In the appellant’s Notice of Appeal, the appellant challenges the primary judge’s findings at PJ[296]-[297], that the definition of “Shareholder” in cl 1.1 was “AMP Investments” and DCIL stood in its position: at PJ[301]. Furthermore, the definition of Shareholder had the consequence that DCIL’s breach of the obligation not to disclose APAC’s confidential information “that it did so as deemed Shareholder of all the shares under its management”: at PJ[305]. The primary judge considered those findings disposed of the Dexus Bloc’s contentions which included challenging the validity of the “Default Notice”: see at PJ[289], [295].
The primary judge’s task of determining the proper construction of the definition of “Shareholder” in cl 1.1 of the Shareholders’ Deed was not straightforward. The relationship between shareholders in APAC was governed by the Original Shareholders’ Deed, which had been subject to changes, and AMP, although “AMP Bloc” remained defined in cl 1.1 was no longer a shareholder.
The applicable principles governing the grant of interlocutory injunctive relief pending appeal were summarised by Basten JA in Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd [2017] NSWCA 331 at [15]-[17] (“Yeshiva”):
“[15] The established basis upon which this Court may intervene to grant such relief pending an appeal is, in broad terms, to prevent the subject matter of the appeal being destroyed or substantially impaired in such a way as to render a successful appeal nugatory. A common example may be found in cases where an appellant resists payment of a sum in accordance with the judgment under appeal on the basis that the money will probably be irrecoverable notwithstanding success on the appeal.
[16] More broadly, the Court is exercising a discretionary power and will need to weigh the hardship and inconvenience likely to be caused to each party by granting or not granting the order sought. The relevant circumstances are likely to include the period for which the relief will need to operate, the promptness with which the applicant for relief has come to the Court and the strength of the proposed appeal.
[17] So far as the last matter is concerned, the inquiry is usually constrained to a determination whether the appeal is reasonably arguable. With respect to the prospects of success on an appeal, the Court stated in Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) [(1985) 2 NSWLR 685 at 695]:
‘… although courts approaching applications for a stay will not generally speculate about the appellant’s prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the appellant has an arguable case’.” (footnotes omitted)
My enquiry as to the strength of the appeal is constrained to a determination of whether the appeal is reasonably arguable: Yeshiva at [15]-[17]; Berhero Pty Ltd v Senibina Sentral SDN BHD [2024] NSWCA 110 at [3] (Leeming JA); see also J**esasu at 117 (Kirby P); Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5] (Payne JA).
In my view, having considered the grounds of appeal, the competing submissions of the parties and the materials before me, I have reached the conclusion that the appeal is at least reasonably arguable.
The appellant has promptly lodged its appeal and sought injunctive relief. Both the appellant’s and Dexus’ appeals are listed for hearing concurrently before the Court of Appeal on 20 October 2026.
As Kirby P observed in Jesasu at 115-117 and restated by Santow JA in Network Ten Pty Ltd v Rowe [2006] NSWCA 4; (2006) 149 IR 273 at [10]-[12], “[t]he question is whether and when the Court will use its interlocutory power to safeguard the utility of that right [of appeal]”.
The prejudice that the appellant may suffer if it is forced to divest its shares was identified as triggering a CGT liability for the appellant under the Income Tax Assessment Act 1997 (Cth). However, it is difficult to assess the magnitude of that liability. In the Ebert Affidavit, Mr Ebert states at par 31 that liability is “presently estimated to be $19 million”, based on an estimated capital gain “being the difference between an estimated transfer price, and the appellant's estimated cost base in its APAC shares, and a tax rate of 10% applying to that capital gain”. Mr Ebert further states he believes that this estimate is unrelated to the changes to the rules around capital gains announced in the recent Federal Budget.
Mr Ebert further deposes at par 32 to the “not insignificant risk that the appellant would not be able to recover this CGT liability even if the appeal is successful”. Mr Ebert states at par 35 that even if it were possible for the appellant’s shares in APAC to be transferred back to the appellant in the event of a successful appeal:
“… [T]his would have serious implications for the appellant because, upon the transfer of the shares back to the appellant, landholder duty is likely to be payable by the appellant under the Duties Act 2000 (Vic) at a rate of 6.5% based on its proportionate share of the unencumbered land value of APAC. Again, even if the appeal is successful, the appellant would be unable to recover this duty payable on this transfer.”
Mr Ebert further referred to the important role that APAC, which is a unique infrastructure asset, plays in the Rest Corporate Group’s unlisted infrastructure portfolio.
All of Mr Ebert’s evidence of prejudice was founded on instructions from Benjamin Clarebrough, who is the Head of Legal, Investments, of Retail Employers Superannuation Pty Ltd (“REST Super”). Neither Mr Ebert nor Mr Clarebrough were required for cross-examination. I accept that evidence. I am satisfied that should injunctive relief not be granted, the appellant may suffer significant and irreversible financial prejudice. The appellant is part of REST Super, an industry superannuation fund, which is “not for profit” or a “profit-to-member” superannuation fund.
The prejudice identified by the Non-Dexus Bloc Respondents (other than the inadequacy of the appellant’s undertaking as to damages) may be summarised as follows:
(a) clauses 11 and 12.3 of the Shareholders’ Deed provide for a number of time periods for certain steps to take place in a compulsory sale of shares pursuant to a Default Notice. The timing of these steps is determined by the determination by the Auditor, Deloitte, of the Fair Market Value; (b) in the Lucarelli Affidavit, Mr Lucarelli states at par 24 by reference to the affidavit of Tamlyn Shaze Mills affirmed on 4 June 2026, filed in the proceedings below, that:
“… APAC has instructed its Auditor, Deloitte, to proceed with the determination of Fair Market Value, and it estimated as at the date of the Mills Affidavit that it would take 6 to 8 weeks from 27 May 2026 to complete all steps but the final calculation of Fair Market Value. I do not know when Fair Market Value will be determined.”
(c) the timing of the steps in the compulsory sale process is determined by the determination by Deloitte of the Fair Market Value. If the orders proposed by the appellant are granted and Fair Market Value is determined before the hearing of the appeal and the appellant’s appeal is dismissed, the appellant or Dexus could contend that the time periods under cll 11 and 12.3 had run so that the offer in respect of the appellant’s shares could not be accepted under that process. That would deprive the Non-Dexus Bloc Respondents of the right to acquire those shares under the Shareholders’ Deed; (d) clause 12.3(c) of the Shareholders’ Deed does not expressly provide for the shares the subject of the Default Notice to be offered in separate tranches at different times. Further, on the primary judge’s construction, all the Dexus Bloc shares are taken to be held by DCIL which includes those held by the appellant; (e) it is unclear how under cl 12.3(c), APAC could make an offer in respect of only the appellant’s shares or how the Non-Dexus Bloc Respondents could respond to an offer of its proportion of all Dexus Bloc shares excluding the appellant’s shares. Furthermore, the Non-Dexus Bloc Shareholders could not nominate “a Qualified Buyer or Qualified Buyers” for the purposes of cl 11.3; (f) if the Non-Dexus Bloc Respondents were to accept an offer of the Dexus Bloc shares excluding the appellant’s shares, the appellant or Dexus may contend that:
(i) the sale of the Dexus Bloc shares other than the appellant’s shares, and or any later sale of the appellant’s shares was not in compliance with or ineffective under the Shareholders’ Deed; (ii) the times under cll 11 and 12.3 of the Shareholders’ Deed to make an effective offer or acceptance had otherwise run; and
(g) as a consequence, if injunctive relief was granted, the Non-Dexus Bloc Respondents could be engaged in costly, complicated and time-consuming litigation or arguments.
The prejudice identified by the Non-Dexus Bloc Respondents is dependent upon the compulsory sale process in cl 12.3 of the Shareholders’ Deed being implemented by the APAC Board (“the Board”). The first step to be taken under cl 12.3(1) is for the Board to instruct Deloitte to determine the “Fair Market Value”. It seems that step has already been taken. In the Donohue Affidavit, no mention is made of the determination by Deloitte of the Fair Market Value. It appears that the Fair Market Value has not as of yet been determined.
After the determination of Fair Market Value, the next step is for the Board under cl 12.3(c) relevantly as follows:
“[W]ithin 5 Business Days after the date of determination of the Fair Market Value, the Board shall make to each Shareholder other than the Defaulting Shareholder an offer in writing to sell to that Shareholder as nearly as possible to its Relevant Proportion ...”
Should the “Fair Market Value” not be determined before the hearing of the appeal on 20 October 2026, the prejudice to the Non-Dexus Bloc Respondents being prevented from accepting an offer or for the prejudice arising from the appellant or Dexus raising the argument that “Automatic rejection” under cl 11.7 applied would simply not be an issue.
Plainly stated, no prejudice arises to the Non-Dexus Bloc Respondents unless the Fair Market Value is determined before the hearing of the appeal. No submissions were made that there was any need or urgency for Deloitte to make that determination or why Deloitte could not be instructed to delay or postpone their determination until after the appeal has been finalised. This was the thrust of Order 1(d) of the Stevenson Injunction. No evidence was adduced of any compelling commercial reason for the determination of the Fair Market Value to proceed before the finalisation of the appeal.
Although I am mindful that a successful party at trial is prima facie entitled to enjoy the fruits of its judgment, when the appellant lodged its appeal, a sensible course that was open to the Board to adopt, which could have been supported by the Non-Dexus Bloc Respondents, was to instruct Deloitte not to complete its determination of the Fair Market Value until the finalisation of the appeal. By adopting that sensible approach, the present application and all of the prejudice identified by APAC and the Non-Dexus Bloc Respondents would have been avoided.
The appellant’s arguments on appeal and the utility of that right of appeal are distinct and separate from the arguments to be advanced by Dexus in their appeal. The balance of convenience favours the granting of the injunctive relief sought so as to preserve the utility of the appeal.
The Non-Dexus Bloc Respondents argue that the inadequacy of the appellant’s undertaking as to damages is fatal to the application for injunctive relief as the undertaking is limited to the appellant’s shares. The Non-Dexus Bloc Respondents submitted that there is no basis for that limitation as they could suffer loss in respect of the Dexus shares. It was advanced that the usual undertaking extends to all loss of which an injunction is an effective cause.
The appellant did not satisfactorily explain why its undertaking should not extend to all loss that the Non-Dexus Respondents might suffer as a consequence of the grant of the injunction. Although it is regrettable that the application was not settled on the basis of the undertakings all the parties other than Dexus were prepared to give; the appellant has proceeded with its application for injunctive relief. Given that there is a risk the Non-Dexus Bloc Respondents might suffer damage as a consequence of the injunction, I do not see why as a matter of fairness the relief should not be moulded in such a way that the appellant bears the financial consequences of that risk: see, eg, [2006] NSWSC 1025 at [67] (Campbell J). The overriding purpose of the (NSW) (“”) and the dictates of justice support the conclusion that justice requires the usual undertaking as to damages to be given which is not confined to the appellant’s shares: ss 56-59 of the ; see, eg, (1988) 12 IPR 167.
(a) Direct that any written submissions by the first, second, third, fourth, fifth, ninth and tenth respondents, not exceeding 3 pages, be filed and served by 5:00pm on 31 July 2026. (b) Direct that any written submissions by the appellant, not exceeding 3 pages, be filed and served by 5:00pm on 7 August 2026. (c) Note that costs will be determined on the papers.
**********
REST Nominees No 2 Pty Ltd atf Rest Infrastructure Trust
Australia Pacific Airports Corporation Ltd
[2026] NSWSC 600
[2026] NSWSC 648
[2026] NSWSC 684
(2000) 101 FCR 77
(1987) 11 NSWLR 110
(2006) 149 IR 273
(1988) 12 IPR 167
(1985) 2 NSWLR 685
The notice of motion filed on 1 July 2026 was dismissed. The Court directed specified respondents to file and serve costs submissions of no more than three pages by 5:00 pm on 31 July 2026, and REST to file and serve submissions of no more than three pages by 5:00 pm on 7 August 2026. Costs were to be determined on the papers.
I convened the Court this morning and advised the parties I had concluded that the balance of convenience favoured the granting of the injunctive relief sought. However, I had also concluded that the undertaking as to damages being confined to the appellant’s shares was inadequate.
The parties were informed that subject to the appellant giving to the Court the following undertakings I would make the Orders sought in pars 1(a) and (b) of the motion:
the usual undertaking as to damages which was not confined to the shares in the first respondent held directly by the appellant (“the REST shares”); and
an undertaking not to sell, transfer, dispose, deal with or otherwise encumber the REST shares until the final determination of the appeal.
It was made clear to the appellant that it could either elect to give this undertaking as to damages to secure the injunction or decline to do so with the consequence that the injunction would be refused and the motion dismissed: First Netcom Pty Ltd v Telstra Corp Ltd (2000) 101 FCR 77; [2000] FCA 1269 at [22]-[24] (Beaumont, Burchett and Emmett JJ); Goater v Commonwealth Bank of Australia [2014] NSWCA 265 at [92] (Ward JA, as the President then was).
I granted an adjournment to provide Mr Taylor, counsel for the appellant, with the opportunity to obtain instructions. Upon the proceedings recommencing, Mr Taylor informed the Court that he did not have instructions to expand the undertaking as to damages.
As the appellant elected not to give the undertaking, I made the following orders:
Dismiss the notice of motion filed on 1 July 2026.
As to costs: