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), 194.6, referred to.
Australian Broadcasting Corporation v Lenah Games Meats Pty Ltd (2001) 208 CLR 199; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Beechman Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Adnyamathanha Traditional Lands Association v Minister for Energy and Mines (SA) & Anor [2018] SASC 142 at [26]; Samsung Electronics Company Limited v Apple Inc [2011] 217 FCR 238 ; Cooper v Maloney (No 6) [2012] SASC 212 ; Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd and Others [1991] 56 SASR 515 , applied.

AMIRIPOUR & ANOR v SHAHRISTAN PTY LTD & ANOR
[2021] SADC 64

Civil
Introduction

The applicants seek interlocutory injunctions restraining the respondents from taking steps to remove them from premises at 42 John Street, Salisbury (the premises); and from taking action to sell the business known as Leyan Persian Café and Restaurant operated upon the premises (the business).
Background
The applicants are husband and wife who met the second respondent (Darwishi) through their local community. The applicants were looking for a business opportunity and the second applicant discussed this with Darwishi. The applicants were looking for opportunities for the first applicant to utilise her cooking skills, she having recently completed a commercial cooking course.
In or about February 2018 the second applicant discussed with Darwishi the possibility of him, through the first respondent company (the company), purchasing a business for the applicants to operate. Darwishi advised that he had become aware of premises becoming available, in which there was a café operating, known as Balek Bistro. The applicants were interested in the opportunity to conduct a café/restaurant business from the premises.
The applicants allege that in or about early March 2018 a verbal agreement was entered into between them, Darwishi and the first respondent (the agreement) whereby the business then known as Balek Bistro would be purchased by the company for $25,000.00 and the applicants would be employed to operate the business until they earned enough funds to purchase it from the company for the original purchase price. Part of the agreement was that the applicants would pay for the new fit out of the premises.
Pursuant to an agreement between the parties, the business was purchased by the company on 9 March 2018 and it also took over the lease of the premises. It was agreed that the applicants could transform the business to become a Persian style café. The terms of payment to be made by the applicants for use of the premises and the business are in dispute. The applicants commenced working in the business from about 9 March 2018 and have continued to operate the business since that date.
On 19 January 2020, the applicants served Notice upon the first respondent of their intention to exercise their right to purchase the business pursuant to the terms of the agreement by paying the first respondent the sum of $25,000.00. On 31 January 2020, the applicants gave Notice to the first respondent that they were ready and willing to complete the purchase of the business setting a settlement date of 7 February 2020.
The respondents deny that the applicants have a right to purchase the business and allege that they are in breach of the terms of the agreement. The respondents allege that the applicants have not paid the monthly licence fee of $1,200.00 (plus GST) since 9 July 2019; GST payable on fees paid between July 2018 and July 2019; and rent arrears, council rates, and outgoings in relation to the premises. On 18 November 2020 the first respondent served Notices to Remedy breaches of the agreement with the applicants, threatening re-entry of the premises if amounts of $31,560.00 and $7,189.30 said to be outstanding where not paid.
Agreement to use the premises and operate the business
The applicants filed a Statement of Claim (SOC) on 27 May 2021, five months after the application seeking an injunction was filed.[1] By the SOC the applicants plead in the introduction that they:
… and (the) First Respondent, through the Second Respondent entered into an agreement by which the Respondents financed the Applicants purchase of a business in return for services (which were to be paid) and interest on account of the purchase price of the business….
The Applicants’ were employed by the First Respondent for a period of approximately 8-9 months, following which they paid the First Respondent interest in accordance with an agreement with the First Respondent.
When the Applicants’ sought to satisfy the loan to the First Respondent it denied the existence of the loan.
[1] FDN 17.
In pleading that the verbal agreement between the parties in relation to operation of the business involved the first respondent purchasing the business and the applicants being employed in it, the terms of the agreement were set out as:
1.      a requirement to develop a menu and goodwill;
2.     pay for the fit-out of the business;
3.work for the first respondent until the applicants had sufficient money to pay the first respondent the purchase price for the business;
4.     the first respondent would collect and retain all the profits of the business.
The applicants allege that they paid approximately $70,000.00 to fit-out the premises for the new café/restaurant business and started working for the first respondent from about 9 March 2018. They were not paid wages. It is further alleged that in early 2019 the agreement was varied by Darwishi on behalf of the company to allow the applicants to purchase the business for $25,000.00. This purchase would be achieved by the applicants paying $1,200.00 per month by way of interest on what is described as a ‘loan’ of $25,000.00. Pursuant to this agreement it is alleged that the applicants paid $12,000.00 over 10 payments between January and November 2019.
The loan arrangement and the agreement for the applicants to purchase the business for the sum of $25,000.00 is denied by the respondents. A defence has not yet been filed due to the very late filing of the SOC. The two Notices to Remedy served by the first respondent on 18 November 2020 set out that the company had entered into agreements with the applicants to allow them to occupy the premises and operate the business from 9 March 2018. As a result of these agreements the applicants were to pay:
1.the monthly rent on the premises of $2,200.00 (incl GST) plus all out-goings including council rates;
2. a monthly licence fee to operate the business of $1,320.00 (incl GST).
It was also set out that, in addition to the purchase price (said to be $25,300.00) paid for the business, the company paid associated fees and charges of $9,120.91, and a further $17,304.00 towards improvements upon the premises for the purpose of the business.
In a very detailed affidavit sworn on 19 May 2021,[2] Darwishi set out the circumstances of the purchase of the business and the arrangements entered into with the applicants. The position regarding the sub-lease of the premises and the licence of the business was detailed as set out in the Notices to Remedy. The agreement with the applicants were part of several businesses conducted by the first respondent. A letter of 6 February 2019 from the first respondent’s accountant, United Accountants group, is attached to the Affidavit.[3] By that letter it is confirmed that between 1 April 2018 and 31 December 2018 the business traded under the first respondent’s company; that BAS and Tax documentation was submitted for the business under the first respondent’s ABN on information supplied by the first applicant; and the first applicant was the manager of the business.
[2] FDN 12.
[3] FDN 12 at Exhibit ND5.
The respondents do not deny that there were some negotiations to sell the business to the applicants in late 2019. However, Darwishi attests that the sum required for that purchase was $60,000.00 and took account of approximately $30,000.00 owed to the respondents by the applicants pursuant to the agreement to allow them to operate the business. He says that the applicants were well aware of this and that text messages are available to prove this.[4]
[4] FDN12 Exhibit ND14-ND16.
The respondents claim that following the unsuccessful negotiations regarding sale of the business in late 2019, unpaid amounts owing pursuant to the licence and lease agreements have increased. Darwishi sets out in his affidavit that there is now a total owed of $63,424.16 in relation to operation of the business and lease of the premises.
The respondents also deny that the applicants have spent $70,000.00 on fitting-out the premises for the business. Darwishi says in his affidavit that invoices totalling only $18,520.65 have been sighted. It is also claimed by the respondents that $17,304.00 was incurred by the company in making improvements to the premises, by way of installation of a grease arrestor, construction of a pergola and the provision of kitchen supplies.
The respondents deny that the applicants were ever employed by the business or the company and allege that it is only during the course of the legal proceedings that the applicants have alleged that they are employees. The respondents claim that the applicants only ever held a licence to operate the business. They deny any agreement for the applicants to have an option to purchase the business. The respondents deny that Darwishi ever collected profits from the business between March and December 2018 as alleged.
Legal principles – interlocutory injunctions
The legal principles concerning the granting of an interlocutory injunction are well established and are not in dispute. Those principles are set out in the decisions of the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[5] and Australian Broadcasting Corporation v O’Neill.[6] The High Court in these decisions identified a 3-stage process to be used when considering the granting of an interlocutory injunction. This process requires an applicant to establish that:
1. that there is a serious question to be tried;
2. the balance of convenience favours the grant of an injunction;
3.the applicant is likely to suffer harm for which damages will not be an adequate remedy.
[5] (2001) 208 CLR 199.
[6] (2006) 227 CLR 57.
In relation to the question of whether there is a serious question to be tried, Gummow & Hayne JJ in Australian Broadcasting Corporation v O’Neill when referencing an earlier decision of the Court of Beechman Group Ltd v Bristol Laboratories Pty Ltd[7] observed that the use of the phrase prima face case;
… did not mean that the plaintiff must show that it is more probable than not at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima face case is apparent from a observation to that effect made by Kitto J in the course of argument. With reference to the first enquiry, the Court continued in a statement of central importance for this appeal:
‘How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks’.[8]
[7] (1968) 118 CLR 618.
[8] (2006) 227 CLR 57 at [65].
The respondents in this matter concede that there is a prima facie case and a serious question to be tried however, they submit that it is a very weak case. It was submitted by their counsel that they concede the point ‘barely’. The respondents submitted that the weakness of the applicants’ case dovetails into the second matter to be considered and that is the balance of convenience.
In this regard Doyle J in Adnyamathanha Traditional Lands Association v Minister for Energy and Mines (SA)& Anor stated as follows in discussing the test set out by the High Court:
… subsequent authorities have confirmed that these 3 matters are not to be considered in isolation from one another. To the contrary, and by way of explanation, depending on the nature and circumstances of the particular case, both the strength or weakness of the plaintiff’s case, and the nature and extent of the irreparable harm to suffered by the plaintiff, may inform whether the balance of convenience lies in favour of an injunction.[9]
[9] [2018] SASC 142 at [26].
Doyle J continued as follows:
It remains true that the Court will not conduct a preliminary trial in assessing whether there should be a grant of interlocutory relief. However, in some cases it will be possible and appropriate for the Court to undertake some evaluation of the strength of the plaintiff’s case for final relief in order to assist in determining where the balance of convenience lies. That is more likely to be appropriate in cases where the decision to grant or refuse an interlocutory injunction will in practical sense determine the substance of the matter in issue. It is also more likely to be appropriate in cases where the merits will turn upon matters not requiring the resolution of significant factual disputes…[10]
[10] Ibid at [27].
In determining the balance of convenience, it is not for the Court at an interlocutory stage to conduct a preliminary trial of the matters in dispute to determine where the balance should lie. However, the nature and circumstances of the case brought by the applicants and the strengths or weaknesses of each issue argued, together with the nature and extent of the irreparable harm that would be suffered by them if an injunction is not granted, are issues which are to be considered when determining where the balance of convenience lies and whether it lies in favour of an injunction.[11]
[11] Samsung Electronics Company Limited v Apple Inc [2011] 217 FCR 238 at [62] – [74].
Analysis of the issues
This is a case where an analysis is required to assess the various aspects of the merits of the applicants’ claim. The reason is self-evident, namely if the interlocutory injunction is not granted and the café/restaurant in dispute is taken from the applicants and sold, then this would largely determine the dispute, particularly for the applicants. It would seriously prejudice the ultimate outcome for the applicants.
In assessing where the balance of convenience lies it is also necessary to assess and compare the prejudice and hardship likely to be suffered by the applicants if the injunction sought is not granted, with the prejudice and hardship likely suffered by the respondents if that injunction is granted.
The applicants case
It is not in dispute that the applicants and the first respondent, by some type of agency on the part of Darwishi entered into an agreement that led to the company leasing the premises and purchasing the business on or about 9 March 2018. It is not in dispute that the applicants, upon the company purchasing the business, took over running it changed the business to a Persian-style café and restaurant, and have continued to operate the business, paying at least some of the outgoings.
The dispute between the parties is as to the nature of the agreement that allowed the applicants to conduct the business, and in particular what obligations and payments were to be made by the applicants to allow them to occupy the premises. That dispute extends to what arrangements were in place and had been agreed (if any) that would lead to the applicants taking over ownership of the business.
There is no a dispute however that the applicants have paid the rental for the premises either directly to the landlord or to the company as lessee for the majority of the time they have occupied the premises. It is also not in dispute that until recently, they have also paid rates and taxes and other outgoings in relation to the premises.
There is dispute however regarding the conduct of the business and the agreement as to the payments to be made by the applicants to the company as owner of the business. The payment required has been described variously as a licence fee, or a payment towards repayment of a loan. There are also disputes as to the amount of any regular sum to be paid, and whether it was to include GST, and how many payments have been made pursuant to the agreement between the parties, whatever its characterisation. There is also a dispute between the parties regarding what occurred in relation to some of the profits of the business, and whether cash profits were collected by Darwishi on behalf of the first respondent and if so, whether those profits were to be used as payment against either the licence fee or the loan owing to the respondents with regard to purchase of the business. Finally, there is a dispute between the parties regarding the terms by which the respondents may have agreed to transfer the business and the lease hold on the property to the applicants.

In their summary of argument and by their counsel’s submissions to the Court, the respondents have forensically considered the evidence put forward by the applicants in their pleadings and in their affidavits, to point to inconsistencies regarding the case being put at different times between January 2020 and May 2021 regarding the agreement between the parties. It is not necessary for me to consider each of those inconsistencies for the purpose of this application, except to note that they are there, and they are serious matters to be determined at trial. The only explanations provided by the applicants’ counsel to the Court were that the first applicant prepared documents and gave instructions in English which was not her first language and without an interpreter, and that some of the inconsistencies arose from the applicants’ legal team attempting to define the verbal agreement between the parties in legalistic terms, when it was a somewhat informal agreement between associates. On the face of the matters contained in the affidavits I am not sure those explanations address all the inconsistencies.
The applicants argue that whatever the agreement is to be called, it is clear that the respondents were prepared to have them conduct the café/restaurant business on the premises for over three years before issues arose, and that during that time monies, in excess of $12,000.00 were paid to the first respondent, in addition to the applicants paying the majority of the rent and outgoings for the premises over that three-year period.
Serious issue to be tried
As I have already noted, the respondents concede that there is a serious issue to be tried in relation to the applicants’ claim based on breach of contract. I agree that the applicants have established that there is a serious issue to be tried given the length of time that they have had been in possession of the business despite it being owned by the respondents. They have been allowed to operate that business, on terms yet to be finally determined, over a period in excess of three years. This is in circumstances where there is no written contract or deed between the parties, meaning that the terms of the agreement will be determined upon oral evidence and cross-examination at trial, and an assessment of creditability, accuracy and reliability.
Documents were tendered by both parties by their affidavits, which confirm payments by the applicants to the first respondent, in the total sum of at least $12,000.00 during the period they have operated the business. Documents also establish some payments by the applicants towards a fit-out for the business although, they fall well short of the $70,000.00 which the applicants claim they contributed to that fit-out. The proof of payments total less than $20,000.00. There are also documents in the affidavits which confirm payments by the company of $17,304.00 for improvements to the premises for the business, in addition to any fit out by the applicants. I pause to note that in considering the issues before me, it would be unusual for a vendor to agree to sell a business without recouping at least these costs of improvements to the premises.
There are clearly many facts and issues in dispute that are still to be determined by evidence led at a trial. However, taking account of the issues that are agreed, and in the context of the applicants’ conducting a business within the premises for three years and making payments in relation thereto both towards the lease of the property and the business, I find that there is a serious issue to be tried regarding the future of the business including the terms of any transfer to the applicants.
The balance of convenience and adequacy of damages
The respondents argue that while there may be a serious issue to be tried in this matter, the applicants’ case is not a strong one and this should be taken into account when considering my discretion as to where the balance of convenience lies. In making this argument the respondents again went to the inconsistencies in the applicants’ case, particularly the change in the version of events regarding the circumstances by which the agreement between the parties was entered into and the terms of any agreement.
I have reviewed the evidence referred to which includes a letter from the applicants’ then lawyers to the first respondent dated 31 January 2020;[12] and the affidavit evidence of both applicants between 10 December 2020 through to 24 May 2021.[13] I accept that there are inconsistencies and changes to the evidence of the applicants regarding the nature of their agreement with the respondents and what has taken place since March 2018. However, those credit issues are not ones I can determine on this application. These are matters which will need to be determined at trial.
[12] FDN 12 at Exhibit ND 20.
[13] FDN 4, FDN 11 and FDN 13.
The applicants are seeking orders that the first respondent transfer the business name of the business to them, and an order that it assign the lease of the premises pursuant to an oral agreement that they entered into, as brokered by Darwishi regarding the purchase of the business and the lease of the premises. I am not in a position to determine the terms of that agreement and in particular, cannot determine, on the evidence in the affidavits, whether that was in the nature of some sort of employment agreement between the applicants and the first respondent; or some sort of licence agreement; or some sort of loan agreement.
Despite the inconsistencies there is no dispute that there was an agreement entered into between the parties regarding the premises and the business. Set out in Darwishi’s affidavit are facts that support a case that there had been discussions between the applicants and him regarding a business being purchased by the company that the applicants could then operate and earn income from. Darwishi describes this as a licence agreement between the applicants and the first respondent whereby monthly fees would be paid that would gradually increase to $1,500.00 per month.[14] Darwishi also sets out a factual scenario whereby it was agreed that the applicants would become a sub-lessee of the company in relation to the premises, and pay monthly rent plus GST and outgoings.[15] Darwishi in his affidavit does not refer to any fixed term for the sub-lease for the premises or the licence agreement in relation to the business.[16] This could support on argument that this was because the applicants were being given time to earn enough income to purchase the business from the company.
[14] FDN 12 at [44] – [46].
[15] FDN 12 at [48] – [50].
[16] FDN 12 at [51].
The respondents’ case is that the applicants did not raise the idea of buying the business and taking over the lease of the premises until around December 2019. Darwishi in his affidavit sets out that the first respondent would not agree to that occurring until outstanding amounts which were owed by the applicants were paid.[17] The respondents claim that as at May 2021 the applicants owe the following:
[17] FDN 12 at [107] – [113].
·Unpaid licence fees including GST for 29 months: $38,280.00;
·GST on 10 months of paid licence fees: $1,200.00;
·Outgoings in relation to the lease arrangements: $2,400.00;
·Monthly rent paid by the company for May and June 2018: $4,400.00;
·Amounts paid at settlement, being for the rent deposit, advance rent, stock and all adjustments in the purchaser’s settlement statement: $6,007.86;
·Council rates paid by the company: $389.30;
·GST to the Australian Tax Office under the sub-lease from July to December 2018: $5,647.00;
·The cost of constructing a pergola constructed at the premises: $7,500.00.
The total said to be owed is of $63,424.16, not including the outgoings owed to the landlord as the respondents have been advised that they are being paid off by the applicants at $200.00 per month and that this is acceptable to the landlord.
While the respondents claim there was never any agreement that the applicants would purchase the business from the company, their case is that in any event, the company would now require the applicants to pay the outstanding sum of $63,424.16 before any agreement to transfer the business would be considered. The respondents oppose the interlocutory injunction and argue that the balance is in their favour due to the significant debt owed by the applicants and the ongoing accrual of debt for licence fees at a rate of at least $1,320.00 (incl GST) per month. On their case the fee is now $1,500.00 per month. The respondents seek occupation of the premises so that the business can be sold and their losses recouped. They argue that having expended $25,000.00 plus expenses to purchase the business, and with $63,424.16 owed to them by the applicants and losses accruing of between $1,320.00 and $1,500.00 per month the first respondent faces considerable losses if the applicants continue to operate the business without contributing any monies to the company pursuant to the agreement that allowed them to operate it in the first place.
The respondents also raise a concern that the company will have limited or no opportunity to recover the sums owed by the applicants if the business is lost to them, or is rundown while the debt continues to increase. The applicants are not Australian citizens, own no real property in South Australia and deposed in their affidavits, that their only income is derived from the business. However, in submissions it was put to the Court that the first applicant now works in a fulltime role as a Student Support Officer at Playford International College. No evidence of that employment or the first applicant’s salary was provided to the Court. The respondents raised the immigration status in Australia of the applicants and the concern that they could leave Australia at any time and the debt would then never be recovered. It has only ever been confirmed that the first applicant has a bridging visa to reside in Australia. The second applicant has never provided his visa status despite requests that he do so.
The respondents submit that if an interlocutory injunction was to be granted (which is opposed) that the court should require security or the payment of money into court to fortify the undertaking as to damages as there is simply no evidence from the applicants that they have ability to meet that undertaking as to costs if they are unsuccessful at trial.
Decision
Having weighed all of the affidavit evidence and submissions, I find that the balance of convenience very slightly favours the applicants, and that damages would not be an adequate remedy if an injunction was not granted. If the applicants were to lose the opportunity to work in the business and the business was sold, then this would determine the case for them and remove completely the opportunity of an order being made that the restaurant business be transferred to them, even if that order was on terms to be satisfied. It is not in dispute that the applicants have worked in the business since it was purchased; have changed the nature of the business and built up a new menu; and as a result, have built a clientele and good will. That would all be lost to them if the business is transferred from them at this time. If that was to occur prior to trial, the damage likely suffered by the applicants is such that the ascertainment and quantification of damages would be difficult. I am therefore prepared to make orders granting the injunction sought. The potential prejudice to the applicants outweighs the potential prejudice to the respondents if the injunction was not granted.
In doing so, I accept that I do not have any material on the basis of which I can assess the quantum of financial loss that would be suffered by the applicants if their business is taken from them due to the respondents having the opportunity to enter the premises and effectively evict them. The applicants have not produced any evidence of the financial performance of their business since March 2018. However, I find that the quantum of loss would involve a complex assessment involving some matters of opinion and judgment. I accept that there would be loss caused by the applicants’ removal from the business, and that in the circumstances where there is no written contract and the terms of agreement, particularly as to how the business could have been transferred to the applicants are in dispute, that the assessment of loss would be a complex task.
I have considered the potential prejudice to the respondents and have taken into account the potential ongoing loss of licence fees and other payments which were to be paid by the applicants pursuant to the agreement entered into between the parties, including those amounts said to be owing. Again, it is not possible to accurately assess the quantum of that loss, as it will depend upon the version of facts which will ultimately be found at trial. However, the evidence of Darwishi as set out in his affidavit indicates that the first respondent is a family held company that operates a successful business known as Farm Fresh Fruiterers. There is no evidence that that business is affected by the non-payment by the applicants of licence fees or any other money said to be outstanding pursuant to the agreement. There is no evidence before me that the continued operation of the business by the applicants would ultimately lead to failure of the first respondent.
I also take account of the fact that there is no evidence before me as to the contractual basis upon which the first respondent could evict the applicants from the business. No termination clause or end date for the agreement was set out in the evidence of Darwishi. That is an issue in assessing the balance in this matter.
Regarding whether damages are an adequate remedy and the assessment of an undertaking as to damages Justice Blue in Cooper v Maloney (No 6) said as follows:[18]
In circumstances in which the grant or refusal of an interlocutory injunction will render the trial moot (either destroying the subject matter of the action for the plaintiff or destroying the defendant’s defence), this circumstance affects the assessment of the balance of convenience. The fact of destruction of the subject matter of the action or of the defendants’ defence needs to be weighed in the scales. Accordingly, the mere fact that a plaintiff’s undertaking as to damages is not backed by any substance does not necessarily dictate the refusal of an interlocutory injunction in those circumstances.
[18] [2012] SASC 212 at [75].
In considering whether the weight that should be given to an undertaking as to damages is relative to an injunction not being backed by any substance, Justice Blue found that that is not an issue determinative of the application and that the initial order refusing an injunction merely because the applicant’s undertaking as to damages was not backed by any substance, was in error.
The respondents seek some fortification of the undertaking to pay damages in relation to the losses the first respondent will suffer during any restraint period should the applicants not be successful on their case at trial. The undertaking as to damages is not for the action as a whole but only those damages sustained by reason of the injunction.[19] There is no formal application before the Court filed by the respondents seeking security for costs generally of the proceedings.
[19] Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd and Others [1991] 56 SASR 515 at [517] per Mullighan J.
In this matter during the period of any injunction the applicants will continue to operate the business. The respondents plead that agreed fee for operating the business was $1,200.00 plus GST for the first year of operation of the business and thereafter a fee of $1,500.00 was payable.
The applicants’ case is that the licence fee was $1200.00 per month until the agreement changed to become a loan agreement. Any loan agreement is denied by the respondents. However, there is no dispute that some monthly fee was payable.
Orders
In all the circumstances and doing the best I can with the evidence, I make the following orders:
1.That until further order of the Court an injunction is granted restraining the respondents whether by themselves, their servants, agents or otherwise from:
(1)    taking any action to remove the applicants from the premises situated at 42 John Street, Salisbury SA 5108;
(2)    taking any action to sell the business known as The Leyan Persian Café and Restaurant.
2.     That during the period of the injunction and until further order of the Court:
(1)    the applicants are to pay to the respondents a monthly licence fee to operate the business in the sum of $1,500.00 on or before the 15th day of each month;
(2)    the first respondent is to provide a written receipt to the applicants signed by the applicants or one of them, and a representative of the first respondent, acknowledging each payment pursuant to the order in paragraph (1).
(3)    the applicants are to pay all lease payments in relation to the premises direct to the landlord of the premises as they become due and payable.
(4)    the applicants are to pay all rates, taxes and all other outgoings as they fall due pursuant to the terms of the lease agreement on the premises between the landlord and the first respondent.
In relation to the costs of the application I find that this is a matter where the most appropriate order is costs in the cause, pursuant to Rules 194.4(5) and 194.6 of the Uniform Civil Rules 2020. I therefore make a further order that the costs of the applicants’ interlocutory application be costs in the cause.
I will hear the parties as to any consequential orders.