Adelaide Bank Ltd v Lucke - [2010] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Civil)
ADELAIDE BANK LIMITED v LUCKE
[2010] SASC 59
Judgment of The Honourable Justice Gray
17 March 2010
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - JURISDICTION AND GENERALLY
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - INJUNCTIONS TO PRESERVE STATUS QUO AND PROPERTY PENDING DETERMINATION OF RIGHTS - OTHER CASES
Application for permission to appeal from decision of District Court Judge dismissing appeal from decision of Master of District Court granting an injunction - whether prima facie case with a probability of success demonstrated - whether preservation of status quo justified - whether balance of convenience favours the granting of an injunction.
Held: permission to appeal granted - appeal dismissed - prima facie case established - status quo pending trial should be preserved - balance of convenience favours granting of injunction - undertaking as to damages provided.
Supreme Court Civil Rules 2006 (SA) r 292, referred to.
Cini & Ors v Pets Paradise Franchising (SA) Pty Ltd & Ors [2008] SASC 287; Norman v Mitchell (1854) 5 De GM & G 648; Preston v Luck (1884) 27 Ch D 497; Municipal Council of Rockdale v Municipal Council of Kogarah (1926) 26 SR (NSW) 552; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Aboriginal Development Commission v Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159; In re Will of Gilbert (1946) 46 SR (NSW) 318; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Paringa Mining & Exploration Company Plc v North Flinders Mines Ltd & Ors (1988) 165 CLR 452; Williams v Marac Australia Ltd (1985) 5 NSWLR 529; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326; Moffett v Dillon [1999] 2 VR 480; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, considered.

ADELAIDE BANK LIMITED v LUCKE
[2010] SASC 59
Miscellaneous Appeal
GRAY J:
Introduction

This is an application for permission to appeal.
An injunction was granted by a Master of the District Court. An appeal from that decision was dismissed by a District Court Judge.[1] Permission to appeal from the decision of the District Court Judge is now sought.[2]
[1] Lucke v Cleary & Ors [2009] SADC 137 (Judge Smith).
[2] Pursuant to Supreme Court Civil Rules 2006 (SA) rule 292.
The plaintiff in the primary proceedings and the respondent to this appeal, Paul James Lucke, was in a de facto relationship with the first defendant, Pamela Jeanette Cleary. In or about November 2004, while in that relationship, they entered into a joint venture agreement. Pursuant to the agreement, two properties, known as 22 and 24 Wingfield Street, were purchased in Ms Cleary’s name. Each property was mortgaged to Perpetual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] SASC 59
Decision Date: 17 March 2010

CaseChat Overview and Summary

Adelaide Bank Ltd brought an application seeking permission to appeal a decision of the District Court of South Australia, which dismissed their appeal from a decision of the Master of the District Court. The Master had granted an interlocutory injunction to the respondent, Lucke, to preserve the status quo of certain property pending the determination of their rights. The Bank sought to prevent the property from being sold by the respondent until the appeal could be heard. The legal issues before the court were whether the Bank had demonstrated a prima facie case with a probability of success and whether the preservation of the status quo was justified and whether the balance of convenience favoured the granting of the injunction.

The court considered the evidence presented and determined that the Bank had not established a prima facie case with a probability of success. The court found that the evidence provided did not sufficiently demonstrate that the Bank had a strong likelihood of prevailing in the substantive proceedings. Furthermore, the court found that the balance of convenience did not favour granting the injunction to the Bank as the respondent's right to sell the property was not sufficiently outweighed by the Bank's interests. The court emphasised the importance of the principle that interlocutory injunctions should not be granted unless the applicant can demonstrate a strong likelihood of success and that the balance of convenience favours the granting of the injunction.

The appeal for permission to appeal was granted, but the appeal itself was dismissed. The court found that the District Court Judge had correctly dismissed the Bank's appeal from the Master's decision to grant the interlocutory injunction. The court concluded that the Bank had not demonstrated the necessary criteria for the grant of an interlocutory injunction, and therefore, the District Court's decision stood. The court's decision was based on the evidence presented and the applicable legal principles concerning interlocutory injunctions, the preservation of the status quo, and the balance of convenience. The orders of the District Court dismissing the appeal from the Master's decision were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not consider that on the present evidence any fortification of the undertaking should be ordered.Conclusion Permission to appeal is granted. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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