Amiripour v Shahristan Pty Ltd - [2021] SADC 64

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
AMIRIPOUR & ANOR v SHAHRISTAN PTY LTD & ANOR
[2021] SADC 64
Ruling of her Honour Judge Deuter
2 June 2021
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - INJUNCTIONS TO PRESERVE STATUS QUO OR PROPERTY PENDING DETERMINATION OF RIGHTS
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - SERIOUS QUESTION TO BE TRIED
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - RELEVANT CONSIDERATIONS - BALANCE OF CONVENIENCE GENERALLY
The first respondent (the company) leased a property (the premises) on 8 March 2018, and at the same time purchased a café/restaurant business that was operated from the premises ('the business'). Pursuant to a verbal agreement entered into between the applicants and the company brokered by the second respondent the applicants sub-leased the premises from the company and took over operation of the business on 9 March 2018. The applicants changed the business to a Persian Café and Restaurant with the consent of the respondents and have continued to operate the business.
There is a dispute as to the terms of the agreement for use of the premises and the operation of the business, including whether the applicants had a right to purchase the business, upon giving notice to the company. Both the applicants and the respondents allege that terms of the verbal agreement have not been met and that monies are owed to them as a result of expenditure incurred.
On 18 November 2020 the company served upon the applicants Notices to Remedy breaches of the sub-lease of the premises and the licence of the business by payment of $38,749.30 within 14 days. The Notice also set out that failure to pay the required sum could lead to the company re-entering and taking possession of the premises.
In response to the Notices served by the company, the applicants issued proceedings seeking damages of $200,000.00 and an interim interlocutory injunction restraining the respondents from removing them from the premises or taking any action to sell the business.
Held:
(1) There is a serious question to be tried that the verbal agreement entered into between the applicants and the first respondent provided a right to the applicants to continue occupying the premises and operating the business, and also to purchase the business at a time to be agreed between them.
(2) The balance of convenience lay in favour of granting the application. Damages would not be an adequate remedy.
(3) The applicants are entitled to an injunction against the respondents in the terms sought.
(4) A condition of the injunction is that the applicants are to continue to pay a fee to the respondents to operate the business set at $1,500.00 per month; and are to continue to pay all lease payments, rates, taxes and all other outgoings as they fall due pursuant to the lease agreement on the premises between the landlord and the first respondent.
(5) Costs in the cause.
Uniform Civil Rules 2020 (SA) rr 194.4(5),…

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: [2021] SADC 64
Decision Date: 2 June 2021

CaseChat Overview and Summary

In the case of Amiripour v Shahristan Pty Ltd, the applicants sought an interlocutory injunction to prevent the respondents from evicting them from premises they occupied and from which they operated a business, as well as to compel the respondents to sell the business to them. The dispute arose from a verbal agreement between the parties, which the applicants claimed entitled them to continue operating the business and to eventually purchase it. The court was required to determine whether there was a serious question to be tried concerning the existence and enforceability of this agreement, and if the balance of convenience favoured granting the injunction. Additionally, the court had to consider whether damages would be an adequate remedy for the applicants if the injunction was not granted.

The court found that there was a serious question to be tried regarding the existence of the verbal agreement and the rights it conferred on the applicants. The balance of convenience was held to lie in favour of the applicants, as granting the injunction would prevent immediate and potentially irreparable harm to their business. The court also concluded that damages would not be an adequate remedy for the applicants, as the unique nature of the business and the difficulty of finding a suitable replacement made it unlikely that monetary compensation could fully compensate for the loss of their business operations. Consequently, the court granted the injunction as sought by the applicants, with conditions that they continue to pay a monthly fee to the respondents and all other outgoings as per the lease agreement.

The final orders of the court were that the applicants are entitled to an injunction against the respondents in the terms sought, with the condition that they continue to pay a monthly fee and all other outgoings. The court also ordered that costs of the proceedings be paid by the cause.

Orders

Orders of the court

Held:

(1) There is a serious question to be tried that the verbal agreement entered into between the applicants and the first respondent provided a right to the applicants to continue occupying the premises and operating the business, and also to purchase the business at a time to be agreed between them.

(2) The balance of convenience lay in favour of granting the application. Damages would not be an adequate remedy.

(3) The applicants are entitled to an injunction against the respondents in the terms sought.

(4) A condition of the injunction is that the applicants are to continue to pay a fee to the respondents to operate the business set at $1,500.00 per month; and are to continue to pay all lease payments, rates, taxes and all other outgoings as they fall due pursuant to the lease agreement on the premises between the landlord and the first respondent.

(5) Costs in the cause.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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