Aspex Paper Pty Ltd v Dominion Auctioneers (Vic) Pty Ltd
[2001] VSC 6
•9 January 2001
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 4003 of 2001
| ASPEX AUSTRALIA PTY LTD | Plaintiff |
| v | |
| DOMINION AUCTIONEERS (VIC) PTY LTD. | Defendant |
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JUDGE: | BEACH, J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 January 2001 | |
DATE OF JUDGMENT: | 9 January 2001 | |
CASE MAY BE CITED AS: | Aspex Paper v Dominion Auctioneers | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 6 | |
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Interlocutory injunction - Serious issue to be tried - Balance of convenience favours grant of relief - Unnecessary obstruction to sub-tenant's premises.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr D. Bennett | Logie-Smith Lanyon |
| For the Defendant | Mr K. Howden | Deacons |
HIS HONOUR:
The plaintiff, Aspex Paper Australia Pty Ltd, carries on business as a converter and recycler of paper. Since about October 1995 it has occupied portion of premises at 344 Lorimer Street, Port Melbourne, pursuant to a sublease from the defendant, Dominion Auctioneers (Vic) Pty Ltd. The defendant is itself a lessee of the premises pursuant to registered commercial lease, volume 1212, folio 378, registered in the Land Titles Office. The plaintiff's sublease of the portion of the premises it occupies will expire in April 2002.
The property occupied by the plaintiff consists of two large hangars. One of the hangars is known as the Butler Hangar and the plaintiff occupies that hangar, together with an open-paved concrete area at the southern end of the hangar which has been referred to during the course of the hearing before me as "the hard stand". There are three other hangars on the site known as the Bellman Hangars Nos. 1, 2 and 3. The plaintiff occupies No. 3 Bellman Hangar; the defendant occupies 1 and 2.
As one might expect, there are roadways on the site giving vehicular access to the various hangars. The sublease between the parties gives to the plaintiff the right, in common with the defendant and other occupiers for the time being of the site, to use the common areas on the site.
In my opinion, it is strongly arguable that the common areas include the roadways to which I have referred. That view of the matter is reinforced, in my opinion, by the fact that the plaintiff and its clients have made constant use of the roadways since the plaintiff first occupied the hangars more than five years ago.
According to the affidavit of Mostyn John Hanlan, who is the manager of the Victorian factory of the plaintiff, sworn 3 January 2001, the plaintiff processes about 1,000 tonnes of scrap paper at the site each week. The plaintiff has two major contracts, one with the Herald and Weekly Times and one with Amcor.
Under the Herald and Weekly Times' contract the plaintiff is required to take delivery of paper products from Herald and Weekly Times' trucks. Those trucks apparently collect off cuts and waste and scrap paper from around Melbourne and then deliver it direct to the premises of the plaintiff. The plaintiff is required to take those deliveries on each day that newspapers are printed.
Under the Amcor contract the plaintiff is required to take delivery of paper and cardboard from Amcor trucks. Those trucks apparently collect paper and cardboard from kerbside recycling collections around Melbourne before delivering it direct to the plaintiff's premises.
After receiving the paper products the plaintiff sorts them and then either bales them for export or sends them in loose form to the Albury paper mill.
The paper products are brought to the premises by trucks and transported from the premises by semi-trailers. Again according to Hanlan's affidavit, on an average day there are approximately eight semi-trailers entering and leaving the premises and approximately 25 other trucks entering and leaving the premises. On a busy day there can apparently be up to 12 semi-trailers and 30 other trucks entering and leaving the premises.
In order for the semi-trailers to access the Butler Hangar, they enter the premises from Lorimer Street into a central access road running between the Butler Hangar on one side and the 3 Bellman Hangars on the other side. The defendant also uses the access road for gaining access to the two Bellman Hangars occupied by it. Once the semi-trailers coming to the Butler Hangar have entered by means of the central access road, they then perform somewhat complex manoeuvres to place themselves in the appropriate position to commence loading operations. As part of that manoeuvring the drivers of the semi-trailers often use part of the roadway adjacent to the hard stand area.
In November 2000 it would seem that bad blood developed between the parties because the plaintiff had supported the owner of the site in legal proceedings it had instituted against the defendant relating to the rental to be paid by the defendant in respect of the site.
The plaintiff's evidence in relation to that aspect of the matter again is set out in the affidavit of Hanlan, sworn 3 January. I do not think that any useful purpose would be served by detailing it in these reasons. He makes a number of allegations in relation to statements made to him by the managing director of the defendant concerning the erection of a fence at the property which, on their face, would indicate that the defendant intended to do that to, as it were, get back at the plaintiff. I hasten to add that those remarks or that he made those remarks is denied by the managing director of the defendant, John Wood, in the affidavit he has sworn on 5 January. Needless to say, if those aspects of the matter are relevant, their determination must await the trial of the proceedings.
At all events, on 22 December last the defendant commenced to erect a fence on the property. The details of the fence are set out in the affidavit of Hanlan and the exhibits to that affidavit. The details also appear in a sketch, which is Exhibit MJH5 to an affidavit that Hanlan more recently swore on 5 January. In my view, it is unnecessary to refer to those details in my reasons, save to say that according to the plaintiff the location of the fence is such as to have had a significant detrimental effect on its business operations. That much is clear, so it is said, from paragraphs 24 and following of Hanlan's affidavit of 3 January which read:
"24.The fence and the gate have the effect of restricting proper and easy access by semi-trailers to the Premises, and restricts them from manoeuvring as they have done for the last 5 years. Previously, Aspex have had unrestricted use of the roadways. With the fence in place in its present position and the two sides of the gate closed, semi-trailers are gaining access to the Premises but with extreme difficulty. They are required to manoeuvre in a very restricted area. This is creating a safety hazard, and causing delays to Aspex's business.
25.A safety hazard has been created because the semi-trailers are now only clearing the corner of the weighbridge building next to the Butler Hangar by 2 or 3 inches. Also, when the semi-trailers leave the Premises fully laden, they are carrying a load of approximately 22-25 tonnes. The tight turns are causing enormous loads on the tyres and wheel bearings as the trailers are pulled side-ways to make the turns. The tight manoeuvring also causes the turntables of the semi-trailers, between the cab and the trailer, to rise vertically rather than simply rotating horizontally as they are designed to. These stresses could lead to bearing failures and blown tyres on the semi-trailers. Now produced and shown to me and marked 'MJH3' is a true copy of a photograph of a semi-trailer at the Premises showing the vertical movement of the trailer of the semi-trailer as it attempts to make one of the turns now necessary to access the Butler Hangar.
26.The increased manoeuvring is also causing delays to Aspex's business. Before the erection of the fence and the gate, it took a semi-trailer approximately two minutes to reverse into position and approximately one minute to drive out. Now it is taking approximately five minutes to reverse in and two minutes to drive out. This means that other trucks are often delayed while waiting for semi-trailers to move in and out, resulting in congestion. One of Aspex's main advantages in winning business has been the fast turnaround time for truck drivers at the Premises. This has now been significantly reduced.
27.The congestion and increased manoeuvring is also creating a further safety hazard, particularly when a number of semi-trailers and trucks are manoeuvring in unexpected directions to access the Premises and/or move out of each others' way.
28.At the time of swearing this my affidavit, I have already received complaints from drivers of the semi-trailers about the difficulty they are having in manoeuvring their trucks. Further, drivers of other trucks have complained to me that they are getting behind in their pickup schedules because of the delays they are experiencing at the Premises."
The case for the defendant is that, of recent months it has become necessary to erect a fence or the fence, as it is, at the premises for security reasons. Since October 2000 the defendant has received large quantities of tobacco from the State Revenue Office for storage. Apparently, the tobacco is to be kept at the premises of the defendant for a period of some 12 to 18 months until such time as certain legal proceedings taken by the revenue office against various individuals in relation to the sale of the tobacco are heard and determined. The value of the tobacco is said to be of the order of $8-10 million. Because of the shortage of storage space in its own hangars, it has been necessary for the defendant to store the tobacco in containers in an open area adjacent to one of the hangars occupied by it. At the moment there would appear to be 10 containers of tobacco on the site. There are also three other containers which contain other valuable merchandise.
In the evidence he has sworn in relation to the matter, Hall has deposed to the fact that the defendant expects to take delivery of three or four more containers of tobacco within the next month. The defendant is fearful that unless a security fence is erected in the position of the fence now in position there may be thefts of the tobacco from the containers and, for that matter, thefts of the other goods which are stored in the other containers to which I have referred.
In my opinion, it is clear from the matters I have dealt with that there is a serious issue to be tried in this proceeding relating to the entitlement of the defendant to erect a fence in the position of the fence which is now in place.
I turn then to consider the balance of convenience. The plaintiff's case is that if the fence remains in its present position it will suffer irreparable loss and damage by reason of, firstly, delays caused to the operation of its business; secondly, the safety hazard caused by the erection of the fence. It further alleges that its reputation and its goodwill will suffer if drivers refuse to service the premises by virtue of the presence of the fence and by delays, damage and safety risks being caused to third parties, namely the drivers of semi-trailers and collector trucks.
In view of the evidence that has been placed before me, I consider that there is some force in the plaintiff's fears in that regard.
As to the defendant, in my view it is difficult to see how it can suffer any detriment if it is required to move the present fence save, of course, for the actual cost of the removal of the fence. It is clear from Exhibit 5 to the affidavit of Hanlan, sworn 5 January, that if the present fence was moved a distance of 1.8 metres to the south the problem the plaintiff is presently experiencing would disappear.
On the face of it there seems no reason at all why that could not be done because there is presently a gap of some 5.8 metres between the fence and the nearest obstruction to it to the south, namely, a three metre wide garden bed running along the southern side of the access roadway. It would seem clear to me, at all events, that if the fence had been erected in the position suggested by Hanlan in that sketch no problem would have occurred. The defendant would have achieved its security objective and the operations of the plaintiff at the site would have continued uninterrupted.
It is trite to say that where an interlocutory injunction sought by a party is in substance a mandatory injunction there must be a high degree of assurance that the plaintiff will ultimately succeed at trial. In that respect I need refer to no other authority than that of Southwell, J. in Dataforce Pty Ltd & Ors v. Brambles Holdings Ltd [1988] V.R. 771.
In my opinion, the facts in this case do give one the necessary high degree of assurance. As I said earlier in my reasons for judgment, in my opinion it is strongly arguable that the common areas referred to in the plaintiff's sublease do include the roadway in question.
Mr Bennett, do you give the usual undertaking as to damages on behalf of the plaintiff?
MR BENNETT: Yes, I do, Your Honour.
HIS HONOUR: Thank you.
That undertaking having been given, I order
1.Until the hearing and determination of this proceeding or further order the defendant by itself, its servants, agents or howsoever otherwise be restrained from:
(a)preventing, inhibiting, obstructing or otherwise interfering with the access of semi-trailers or other vehicles involved in the plaintiff's business to the Butler Hangar at 344 Lorimer Street, Port Melbourne, Victoria (the Butler Hangar);
(b) erecting or maintaining –
(i)a fence along the southern boundary of the hard stand adjacent to the Butler Hangar;
(ii)a gate across the roadway between Bellman Hangars Nos. 2 and 3 and the fence referred to in sub-paragraph (b)(i) a distance of less than 1.8 metres from the southern boundary of the hard stand area adjacent to the Butler Hangar.
2. I reserve to the parties liberty to apply.
3. The costs of and incidental to this application are reserved.
4.I direct that this order be prepared by the solicitors for the plaintiff and within 48 hours be brought to me for authentication.
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