Top of the World Flims Pty Ltd v John Rai trading as John & The Local Band

File Number(s): 2025/00377451

Publication restriction: No

JUDGMENT – EX TEMPORE

1. Before the Court is a Notice of Motion brought by the plaintiff, Top of the World Flims Pty Ltd, against the defendants seeking various orders. One of the orders sought is an interim restraining order preventing the first defendant from performing, promoting, participating in, or being advertised for, any musical events, concerts, tours, shows or public performances in Australia between 22 November 2025 and 5 December 2025 to 30 December 2026 pending final determination of these proceedings. In substance, what is sought is an interlocutory injunction.

2. Mr Santosh Khadka, who is a director of the plaintiff, appeared today in support of the application. The Court explained to him that usually an undertaking as to damages was required from an applicant seeking an injunction. It was explained that on the evidence of the expenditure in relation to the series of performances planned of the first defendant that this could involve a loss of $600,000 to $700,000. Mr Santosh Khadka indicated that he was willing to give that undertaking as to damages on behalf of the plaintiff.

3. In substance, the argument relied upon by the plaintiff turns on a Memorandum of Understanding dated 29 October 2025 that was entered into between Souline Media Collective and a group of people known as John and the Locals.

4. The background to the matter as set out in the affidavits read on the application is that the group John and the Locals is a group of music performers who are particularly well known in Nepal and to Australians of a Nepalese heritage. The evidence before me establishes that it is proposed that there be a number of performances around Australia by the band. Those performances include performances in November 2025 and into 2026.

5. The evidence establishes that in relation to the Sydney performance by the band which is to occur tomorrow, 22 November 2025, at The Dome at Olympic Park in Sydney, expenses to date in relation to that concert are $550,000 with revenue to date being $600,000. The affidavit of Nishant Sharma dated 20 November 2025 sets out the costs which have been incurred in bringing John and the Locals to Australia including costs relating to visa applications and flights of about $50,000. The evidence states that there are about 60,000 Nepalese in Sydney and 120,000 Nepalese in Australia and there is “huge support for John and the Local Band among the Nepalese Community”: paragraph 7, Sharma affidavit.

6. It is, of course, a serious step to take to grant an interlocutory injunction to prevent persons engaging in planned performances of the sort in question, particularly in the light of the expenses and potential loss of revenue which I have indicated.

7. Mr Santosh Khadka, who appears for the plaintiff company, relied heavily on the terms of the Memorandum of Understanding which is annexed to the affidavit of Dipendra Thapa dated 14 November 2025. It seems from the evidence that the entity described as Souline Media Collective was an entity which was the trading name or agent of the plaintiff. I note that there is an inconsistency in the names in the Amended Statement of Claim and the Notice of Motion being “Top of the World Flims Pty Ltd” and references in various documents including paragraph 1 of the Thapa affidavit to “Top of the World Films Pty Ltd”. Mr Santosh Khadka confirmed that “Flims” was the correct term.

8. As stated, Mr Santosh Khadka relies heavily on the Memorandum of Understanding and submits that there is a fundamental inconsistency between the agreement by the first defendant to engage in the planned performances in Australia and the exclusivity and agreement constituted in the Memorandum of Understanding.

9. Mr Bailey of counsel, who appears for the defendants, submits, in summary as follows:

(a) Paragraph 1 of the Memorandum of Understanding refers to a concert performance scheduled for December 2025/2026. The performance tomorrow and the one in Perth are in November 2025 prior to the intended period covered by the Memorandum of Understanding; (b) The exclusivity clause in clause 3.1 only provides exclusivity in relation to other performances which “conflict with the scheduled events”. He submits that there has been no scheduling of events by the plaintiff, and that is consistent with paragraph 10 of the Sharma affidavit.

I asked Mr Santosh Khadka directly whether there had been any express indication of scheduling of specific concerts by the plaintiff and he said there had not been because of difficulties with communicating with the first defendant.

Accordingly, there had been no communication and organisation of a schedule of performances in December 2025 ‑ 2026 by the plaintiff;

(c) Having regard to the submissions in relation to the Memorandum of Understanding, the allegation of breach of contract by the first defendant at present on the evidence was exceptionally weak and barely arguable; (d) The balance of convenience was heavily against the grant of an injunction. Matters relied on included the significant expenditure, the ticket sales, the visa expenses, the potential loss of money and the need to refund. In addition, he submitted that there was no suggestion that damages would not be an adequate remedy.

10. Mr Santosh Khadka relies on the purpose and effect of the contract and indicates that the first defendant, Mr Rai, has not been available for communication.

11. I have taken into account the contents of the affidavits and the documents annexed thereto and there does not appear on the material to have been an organised scheduled group of concerts or events between the parties. Mr Santosh Khadka said that is because of the other performances organised.

12. In order to grant an interim injunction, a number of matters need to be satisfied. I rely in particular on the High Court decision of ABC v O*’*Neill (2006) 227 CLR 57. At p 68 Gleeson CJ and Crennan J said as follows:

“… in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction.”

13. Their Honours held that those were what they described as “the organising principles” to be applied “having regard to the nature and circumstances of the case under which issues of justice and convenience are expressed”.

14. Their Honours referred as agreeing with the statements of principles by Gummow and Hayne JJ at paragraphs 65 and following of the same case. Gummow and Hayne JJ said that the requirement for a prima facie or arguable case did not mean that the plaintiff must show that it is more probably than not that at trial the plaintiff will succeed. It was sufficient to show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.

15. In the present case, I am not satisfied that there is an arguable case in relation to the performances in Sydney and Perth which are organised for November 2025, before the dates referred to in clause 1 of the Memorandum of Understanding. In my view, there is a potential arguable case in relation to the date in the Memorandum of Understanding in relation to the later planned concerts.

16. In relation to the argument relying on clause 3.1, I am not satisfied on the evidence that there has been a communicated alternative schedule of events from the plaintiff to the defendants. In my view, it is no answer to say that when the plaintiff saw the alternative schedule that it failed to take action, because clause 3.1 of the Memorandum of Understanding appears to require the entering into of an agreement with a third party event company or promoter for performances that “conflict with the scheduled events”. In my view, it is not enough purely to refer to the understanding in clause 1. There needs to have been a schedule of performances which the alleged breach performances conflict with.

17. Even if I am wrong in relation to that, I turn to the balance of convenience issue. In my view, the balance of convenience, even taking into account the undertaking as to damages offered on behalf of the plaintiff, is clearly in the defendants’ favour. The evidence set out in the affidavit of Nishant Sharma shows the very significant moneys that have been spent in ticket sales and expenses. The ticket sales moneys would need to be refunded. The performance in Sydney is tomorrow, and that would involve substantial disruption and dislocation if an injunction were to be given. That is similarly the case in relation to the other November performance in Perth on 26 November 2025.

18. There is also no suggestion on the evidence that damages would not be an adequate remedy. There is no evidence as to the financial position of the first defendant other than it is what is described as a band with “huge support” in the Nepalese community and is well known in that community overseas.

19. Taking into account all the matters I have indicated, in my view, the requirements for an interlocutory injunction as sought have not been satisfied and the order I make is:

In relation to the Notice of Motion filed 17 November 2025:

(1) The application by the plaintiff for an interlocutory injunction concerning the defendants’ proposed concerts is rejected.

[His Honour heard submissions as to costs.]

20. In relation to the application for an interlocutory injunction, which I have declined, Mr Bailey of counsel who appears for the defendants, seeks an order for costs in relation to that application. The Court has a wide discretion as to costs: s 98 of the Civil Procedure Act 2005 (NSW). That discretion must be exercised judicially. The usual rule, if someone fails on an application, apart from other matters, is that costs follow the event. I can see no reason why that rule should not be applied in the present case with the plaintiff having failed to get the interlocutory injunctive relief it seeks.

21. For all those reasons, order 2 which I make is:

(2) The plaintiff is to pay the defendant’s costs of the interlocutory injunction application as agreed or assessed.

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