Amato v JAS Property Developments Pty Ltd (No 3) - [2020] VSC 480

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S ECI 2020 01587

CONCETTINA CATERINA AMATO	Plaintiff
v
JAS PROPERTY DEVELOPMENTS PTY LTD (ACN 601 245 363) (as Trustee for the JAS PROPERTY UNIT TRUST)	First Defendant
- and -
JAS INVESTORS PTY LTD (ACN 602 104 978)	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2020
DATE OF JUDGMENT:	6 August 2020
CASE MAY BE CITED AS:	Amato v JAS Property Developments Pty Ltd & Anor (No 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 480

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INJUNCTION — Application for extension of interlocutory injunction — Contract of sale of property between plaintiff and first defendant — Licence to occupy pending settlement of sale — Second defendant as mortgagee over property intends to exercise power of sale — Notice to vacate issued to plaintiff — Whether serious question to be tried as to second defendant’s knowledge and involvement in contract of sale and licence — Whether balance of convenience favours continuation of injunction — Extension granted — Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Bingham	Falcone & Adams
For the First Defendant	No appearance
For the Second Defendant	Mr P Van Eps	Catcher Legal Pty Ltd

HER HONOUR:

On 8 May 2020, the Honourable Justice Forbes granted an interim injunction restraining the defendants from evicting the plaintiff from Apartment 303 of a multi-unit residential property development at 6 Queen Street, Blackburn (‘Apartment 303’). On the return of the proceeding in the Practice Court on 21 July 2020, orders were made extending the injunction until the hearing and determination of the proceeding. The following reasons are given for the Court’s decision.

Background

The relevant background is set out in the reasons given by Forbes J dated 11 May 2020.[1]
[1]Amato v JAS Property Developments (No 2) (Supreme Court of Victoria, Forbes J, 11 May 2020).

By way of brief summary, the plaintiff and first defendant entered into a contract of sale of Apartment 303 dated 26 October 2018. By agreement between them, the plaintiff was entitled to occupy the property prior to settlement. A dispute arose between the plaintiff and the first defendant with regard to certain work to be completed on Apartment 303 pursuant to the contract of sale, as well as work required to repair damage that occurred as a result of defective air conditioning pipes. The plaintiff withheld funds for the settlement of the sale pending remedial work, but remains prepared to settle once that work is complete. The plaintiff commenced this proceeding on 31 March 2020 in relation to the defects dispute.

The second defendant is the corporate trustee of the JAS Investors Unit Trust. It helped finance the development by way of a loan to the first defendant secured by mortgage over the development. The first defendant defaulted on the loan and a notice of default was issued. By letter to the plaintiff’s solicitors dated…

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.

Continue reading Amato v JAS Property Developments Pty Ltd (No 3)

Details

AGLC: Amato v JAS Property Developments Pty Ltd (No 3) [2020] VSC 480
Case: [2020] VSC 480
Decision Date: 6 August 2020

CaseChat Overview and Summary

In the case of Amato v JAS Property Developments Pty Ltd (No 3), the plaintiff sought an extension of an interlocutory injunction. The dispute involved a contract of sale for a property between the plaintiff and the first defendant. The plaintiff had been granted a licence to occupy the property pending the settlement of the sale. However, the second defendant, a mortgagee over the property, intended to exercise its power of sale and issued a notice to vacate to the plaintiff. The plaintiff sought the extension of the interlocutory injunction on the basis that there was a serious question to be tried regarding the second defendant’s knowledge and involvement in the contract of sale and licence. The plaintiff also argued that the balance of convenience favoured the continuation of the injunction.

The primary legal issue before the court was whether there was a serious question to be tried regarding the second defendant’s knowledge and involvement in the contract of sale and licence, and whether the balance of convenience favoured the continuation of the interlocutory injunction. The court needed to determine whether the plaintiff had established a prima facie case and whether the balance of convenience favoured the continuation of the injunction. The court considered the principles established in Australian Broadcasting Corporation v O’Neill, which set out the criteria for granting an interlocutory injunction.

The court found that the plaintiff had established a serious question to be tried regarding the second defendant’s knowledge and involvement in the contract of sale and licence. The court was satisfied that the plaintiff had demonstrated a real prospect of success on the merits of the case and that the balance of convenience favoured the continuation of the interlocutory injunction. The court considered the potential hardship to the plaintiff if the injunction was not extended, as well as the risk of irreparable harm to the plaintiff’s rights if the second defendant exercised its power of sale. The court also noted that the second defendant had not demonstrated any significant prejudice that would result from the continuation of the injunction. Based on these findings, the court granted the plaintiff’s application for an extension of the interlocutory injunction.

The court ordered that the interlocutory injunction be extended until the final hearing of the case. The court also ordered that the second defendant refrain from exercising its power of sale over the property and that the plaintiff be permitted to continue to occupy the property pending the final hearing. The court further ordered that the second defendant provide any relevant documents to the plaintiff and that the parties engage in good faith negotiations to resolve the dispute. The court emphasised that the extension of the interlocutory injunction was not a determination of the merits of the case and that the final outcome would depend on the evidence presented at the final hearing.

Orders