Aloi v Shire of Mundaring
[2013] WASC 101
•25 MARCH 2013
ALOI -v- SHIRE OF MUNDARING [2013] WASC 101
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 101 | |
| 25/03/2013 | |||
| Case No: | CIV:1216/2013 | 28 FEBRUARY 2013 | |
| Coram: | KENNETH MARTIN J | 28/02/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | CARLO TONY ALOI ALOI HOLDINGS PTY LTD FASTBALL NOMINEES PTY LTD SHIRE OF MUNDARING DEVWEST RETAIL PTY LTD |
Catchwords: | Interlocutory injunction Serious question to be tried Prima facie case Standing Balance of convenience Insufficient relationship between act intended to be restrained and asserted harm relied on to support injunctive relief |
Legislation: | Local Government Act 1995 (WA), s 3.58 and s 3.59 |
Case References: | Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- ALOI HOLDINGS PTY LTD
FASTBALL NOMINEES PTY LTD
Plaintiffs
AND
SHIRE OF MUNDARING
First Defendant
DEVWEST RETAIL PTY LTD
Second Defendant
Catchwords:
Interlocutory injunction - Serious question to be tried - Prima facie case - Standing - Balance of convenience - Insufficient relationship between act intended to be restrained and asserted harm relied on to support injunctive relief
Legislation:
Local Government Act 1995 (WA), s 3.58 and s 3.59
(Page 2)
Result:
Application refused
Category: B
Representation:
Counsel:
Plaintiffs : Mr H R Robinson
First Defendant : Mr P G McGowan
Second Defendant : Mr P C Doherty
Solicitors:
Plaintiffs : Haydn Robinson
First Defendant : McLeods Barristers & Solicitors
Second Defendant : Karp Steedman Ross-Adjie
Case(s) referred to in judgment(s):
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247
(Page 3)
- KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 28 February 2013 and the reasons have been edited from the transcript.)
1 This is an application for an interlocutory injunction on notice sought by the three plaintiffs: Mr Carlo Tony Aloi, Aloi Holdings Pty Ltd and Fastball Nominees Pty Ltd. They seek relief against the first defendant, the Shire of Mundaring ('the Shire'). The second defendant, Devwest Retail Pty Ltd, is joined in the proceedings. The second defendant, however, is concerned in the dispute only insofar as the plaintiffs seek orders it withdraw an application for development approval to construct a shopping centre on the land the subject of the proceedings. This land is comprised of two lots in the Shire of Mundaring.
2 The well known principles applicable to the grant of interlocutory injunctions are dealt with in the High Court's decision in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. I do not detect any suggestion, from counsel for the plaintiffs, that equitable causes of action are raised in the present circumstances. So, I deal with the application on the basis that the interlocutory injunction is sought with respect to common law causes of action, which are presently not articulated.
3 The first essential criterion in a case like this is whether there is a 'prima facie case', see Gummow and Hayne JJ at [81] – [82] in Australian Broadcasting Corporation v O'Neill, or as Gleeson CJ and Crennan J explain at [68], a 'serious question to be tried'.
4 In my words, the first question is whether there is some credible argument raised as to the ultimate merits of the case by the plaintiffs? The next question (and the two questions are interdependent) is whether an overall balance of convenience favours this court's intervention today, to preserve a status quo until a trial by granting the (negative) injunction. In the latter evaluation, the alternative of common law damages as the more appropriate end remedy of the plaintiffs can be a consideration.
5 The plaintiffs are seeking, in effect, to stop the Shire evaluating or accepting an offer to purchase its land. An offer was received on about 30 January 2013 from Morrison 232 Pty Ltd ('Morrison'). Morrison has had dealings with the Shire in relation to this same land in the past. But, by reason of events I do not need to go into, Morrison has now made a fresh offer to the Shire to purchase the land at a price of $5.75 million. The offer is presently under consideration by the Shire. But the Shire has
(Page 4)
- undertaken not to accept the offer until this application by the plaintiffs is argued and determined.
6 An asserted interest towards some degree of required standing for these plaintiffs is touched upon in Mr Aloi's first affidavit of 13 February 2013 at pars 1 - 6. He says at par 1:
I am a director and the secretary and a shareholder in the second named Plaintiff and am authorised by it and by the third named plaintiff to make this affidavit on behalf of the Plaintiffs.
7 Then at par 4:
I own 9 View Way, Swan View in the Shire of Mundaring.
- From that I infer, as was put in submission, that Mr Aloi is a ratepayer of the Shire. Being a ratepayer, however, is hardly enough.
8 Mr Aloi continues at par 5:
The second named Plaintiff [Aloi Holdings Pty Ltd] owns 3 Jecks Place, Stratton in the City of Swan. On this land is constructed a shopping centre called Stratton Park Shopping Centre, which comprises a supermarket, 12 speciality shops, medical centre, service station and fast food outlet.
9 Thus, in a different local authority (the City of Swan) the second defendant operates the Stratton Park Shopping Centre. By itself that would also not raise a sufficient basis to complain about this Shire selling its land.
10 Finally, it said in par 6 by Mr Aloi as regards the third plaintiff:
The third-named Plaintiff [Fastball Nominees Pty Ltd] is the tenant of part of the building called Darling Ridge Shopping Centre at 309 Morrison Road, Swan View in the Shire of Mundaring, on which the third-named Plaintiff carries on the business of an IGA supermarket.
11 These matters apparently constitute the only basis upon which these three plaintiffs come to court jointly seeking to challenge and halt a statutory process by which the first defendant Shire could go about seeking to dispose of its own land, pursuant to powers to that end under pt 3 div 3 subdiv 6 of the Local Government Act 1995 (WA).
12 It must be appreciated that there is a fundamental distinction between a looming threat as to a potential asset sale of the Shire's two lots (in accord with the statutory processes laid down under the Local Government Act), contrasted to a different or distinct threat, that in the
(Page 5)
- future some other entity, the Joint Development Assessment Panel (JDAP), may grant a development approval and thereby approve a construction and operation of a new shopping centre upon the Shire's land (once it is sold off). The ultimate harm that is feared by these plaintiffs is that the new shopping centre might then compete against the existing Stratton Park Shopping Centre, as now operated by the second plaintiff in the City of Swan.
13 What presents to be the true fear and grievance of all plaintiffs is that at some point in the future there might be development approval for the new shopping centre on the two lots, if they are sold off by the Shire. That new shopping centre might then, it is thought, as a nearby competitor, deliver some adverse economic impacts against the second plaintiff's business interests. But such a future economic fear is far removed from the negatives (if any) emanating from a mere potential sale of its land by the first defendant. The two grievances are, in my view, fundamentally distinct, both in character and in time.
14 To evaluate whether an overall balance of convenience favours granting an interlocutory injunction, I must necessarily have regard to any imminent harm or prejudice the plaintiffs say they might suffer, if the injunction is not granted. As to this, counsel for the plaintiffs only referred to a prospect, not that the Shire's land might soon be sold off, but rather that a new competitive shopping centre might one day be built on that land at some point.
15 A sale of this land by the Shire might, in a purely historic or chronological sense, be a precursor to subsequent events. These events might later unfold over time and ultimately lead to Morrison (who is not a party to these proceedings) obtaining an approval to construct and operate a shopping centre on the Shire's former land. There seems to me, however, to be a veritable torrent of water to potentially flow 'under the bridge' before a shopping centre competitor emerges, operating on this land.
16 I assess the true grievance of the plaintiffs as hinging on an asserted economic threat of a potential rival shopping centre, not merely a sale of the land by the Shire. The balance of convenience as to prejudice must be evaluated from that perspective.
17 That same core distinction bears upon my evaluation as to the plaintiffs' standing, which I raised at the outset with the plaintiffs' counsel. (The first defendant chose to effectively resist the application without a
(Page 6)
- challenge to standing. It only engages on the merits, or more correctly, what it sees as the overall demerits, of this application for injunctive relief.)
18 As to feared future business competition being a basis for standing, I was referred to a leading decision of the High Court on standing, Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247(Bateman's Bay). Factually here, however, there is an obvious distinction to the facts the High Court was prepared to accept in Bateman's Bay as an arguable basis for standing. This reverts back again to the essential difference between a threat of mere sale of Shire land, contrasted to a wholly distinct fear that post sale, development approval might be given for the construction and operation of a new shopping centre on the land by JDAP.
19 From Bateman's Bay, there might arguably be a basis for standing were I to be evaluating a challenge from the plaintiffs against a possible grant of a development approval to erect and operate the new shopping centre. But the standing necessary to challenge a potential sale of the land, by reference to asserted compliance by the Shire with some statutory prerequisites, as found in pt 3 div 3 of the Local Government Act, presents to me as a fundamentally different grievance, that falls outside Bateman's Bay principles.
20 Bearing in mind the constraints inherent in this urgent application, I will not express a final view upon the standing issue. I will only say that it troubles me that these plaintiffs (whose interests are essentially grounded upon the fear of economic competition from a future shopping centre) could surmount the threshold for standing to challenge and inhibit a sale of the Shire's land. But standing can be finally evaluated later, if necessary.
21 The matters put forward by the plaintiffs to support their asserted prima facie case or a serious question are, essentially, fourfold. First is a challenge, effectively in a jurisdictional sense, against the sufficiency of the Shire's business plan. A business plan was produced in order to meet the requirements of s 3.59 of the Local Government Act. By s 3.59(2), a 'major land transaction' cannot be entered unless a business plan which meets the six component requirements of s 3.59(3) is prepared.
22 The plaintiffs' argument is that a previously prepared business plan does not meet these requirements, as it does not explicitly identify a
(Page 7)
- purpose of the sale of the land, in relation to its potential future utilisation as a shopping centre.
23 For reasons as identified today by counsel for the first defendant, this argument ignores the first defendant's clear interest on a sale of its own land and obtaining at settlement the funds from realising its asset in accordance with the regulated disposition provisions of the Local Government Act.
24 Concerns about a potential future shopping centre as a competitor are much more remote. They are unrelated to the Shire's limited present interest in disposing of its land and realising funds. Accordingly, it was not necessary for the Shire to have a business plan prepared that furthers an additional and distinct purpose of planning for some future shopping centre on the land, if sold.
25 I do not detect a sufficiently serious argument as regards a transgression by the present business plan of the Shire, by reference to requirements of s 3.59(3).
26 A second argument raised as a serious question or prima facie case concerned the timing requirements as to local public notice, under s 3.58(3). There seemed to be an argument that the Shire was proceeding down a path of sale by a public tender. This is a distinct asset realisation process, as set out by s 3.58 of the Local Government Act.
27 It is clear reading s 3.58(2) and (3) together, that s 3.58(2) is subject to exceptions found elsewhere in s 3.58. Subsection (3) allows a local government to dispose of its property other than under s 3.58(2) (that is, other than by public auction or public tender), if it satisfies procedural requirements of giving local public notice and considers submissions under s 3.58(3)(b). Details of the proposed disposition will be provided in accordance with s 3.58(4). The material I have reviewed is consistent with the Shire proceeding in accord with s 3.58(3), rather than by public tender under s 3.58(2)(b).
28 At all events, arguments marshalled today by the plaintiff towards timing issues and the consideration of submissions look to me to be very trivial. There is presently an undertaking by the first defendant not to consider submissions received (as regards local public notice) until this injunction application has been resolved. Arguments as to the full period of 14 days notice not being given for submissions to be made, or other timing issues associated with meeting the requirements of local public notice present in context as being of a de minimis character.
(Page 8)
29 The third argument concerns whether or not the required valuation needed for a sale of the land has been obtained by the Shire. The argument was that the most recent valuation document (by Ms Kate Bingham, dated 23 January 2013) did not meet the requirements of s 3.58(4)(c)(i) of the Local Government Act. The plaintiffs contended it was only an executive summary (see this document exhibited to the Shire's affidavit by Mr Paul O'Connor). I am unmoved by this argument, particularly in the light of earlier valuations which preceded at earlier stages from the same valuer (Ms Bingham). An executive summary of the most recent valuation is referred to in the defendants' affidavit materials. The submission is that there is no completed fresh valuation. But there is an insufficient evidentiary basis to draw such a conclusion on the material put before me.
30 The last matter is essentially only a rolled up concern contending as to bad faith or misdealing on the part of the Shire. The plaintiffs alleged that the Shire has made a firm determination to go ahead with a sale of this land, come what may and in so doing will trample over whatever provisions might inhibit that course. I have to say, having looked through all materials (particularly Mr O'Connor's affidavit) that I can see no sustainable basis whatsoever for this bald contention. The submissions present to me as more in the nature of bloated rhetoric, rather than a substantively grounded submission based on fact.
31 To the contrary, what I extract from the submissions and the materials overall are strong efforts by the first defendant to faithfully comply with the provisions of the Local Government Act generally and, in particular, s 3.58(3) and s 3.59. That needs to be evaluated in a context of the present factual position, which is that the first defendant has not yet accepted the most recent offer to purchase the land submitted by Morrison. The Shire has also indicated it is prepared to accept higher offers than Morrison's offer of $5.75 million GST inclusive, in a context where the most recent valuation was $5.5 million.
32 None of the arguments raised as potential serious questions or going to show a prima facie case, present as of sufficient merit alone or collectively to persuade me to intervene at the present time.
33 In any event, the next evaluative phase, namely the consideration of the overall balance of convenience, is overwhelmingly against the plaintiffs on this application. Again the underlying force of the fundamental distinction between what the plaintiffs seek to restrain, namely a possible sale of land, and what may actually visit upon them a
(Page 9)
- future harm (that is, an approval, construction and operation of a rival shopping centre in future) presents as the difficulty. This distinction is once again the plaintiffs' problem in circumstances where the first defendant is merely in receipt of an offer to purchase its land from Morrison and the first defendant has undertaken not to accept that offer until this application is heard. The Shire accepts it still needs to, and proposes to, comply with all sale requirements under s 3.58(3) and s 3.59 of the Local Government Act. Of itself, a land sale to Morrison, if its offer is accepted by the Shire, does no more than open a door for a possible future development approval concerning a new shopping centre, approved by JDAP, for some entity to build and then conduct a competitive shopping centre business on the land.
34 The balance of convenience must be assessed today by reference to the true harm these plaintiffs contend they would suffer arising from as possible sale of the Shire's land. It is clear that it is only the latter stages of a multi-faceted development approval process for a new shopping centre that concerns them, from the perspective of the fear of a future economic competitor, not a mere sale of this land.
35 Properly weighed, the balance of convenience is overwhelmingly against interrupting a possible sale of the land primarily because such a sale does not really address the plaintiffs' true concerns as to harm.
36 The threshold for the grant of interlocutory injunctive relief is not satisfied. The plaintiffs' application must be refused.
2
3
1