The Applicants applied to set aside an interlocutory injunction that was granted without notice on December 16, 2011. The Court held that the effect of the Application was that a fresh hearing would take place to determine if the burden to establish an interlocutory injunction was met. This Application took place two months after the initial injunction was granted. The Court noted Rule 9.15(2) requires that Applications to vary a without notice Order must occur within 20 days after the Order is brought to the Applicant’s attention. However, the Court held that Rule 9.15 allows the Court to establish a different timeline, and it was appropriate to amend the timeline as a prior Order consented to by the parties relieved the Defendants from compliance with the deadline set in Rule 9.15(2).

The Court held that a cumbersome but correct way of outlining the test for when notice can be avoided is:

…“undue prejudice that cannot be remedied by giving notice”, i.e. where the requirement to give notice would defeat the whole purpose of the Application…

The Court held that the tri-partite test for an injunction was met in this case, and that the Applicants in the without notice Application did disclose to the Court all relevant facts. If they had not, this would be a ground for setting aside the injunction, even if it was otherwise merited.