Babka Pty Ltd v Glenbarry Pty Ltd
[2003] VSC 477
•10 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 7205 of 2003
| BABKA PTY LTD | Plaintiff |
| v | |
| GLENBARRY PTY LTD | Defendant |
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JUDGE: | Hansen J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November 2003 | |
DATE OF JUDGMENT: | 10 November 2003 | |
CASE MAY BE CITED AS: | Babka Pty Ltd v Glenbarry Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 477 | |
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INTERLOCUTORY INJUNCTION – Stay pending appeal or until determination of the proceeding
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr H.A. Aizen | Paul Egan & Associates |
| For the Defendant | Mr J. Guss (solicitor) | Joseph Guss |
HIS HONOUR:
By a summons filed in the Registry at 1.44 today, and supported by an affidavit of David Andrew Wall sworn today and said by Mr Aizen, who appears for the plaintiff, to have been served at about 2.40 p.m. today, the defendant seeks the following orders:
1.That the orders of Justice Kellam made 27 October 2003 be stayed pending the hearing and determination of the defendant’s appeal therefrom.
2.Alternatively, that the time given for the defendant to remain in occupation of the land situated at and known as 58-64 Glenbarry Road, Campbellfield be extended until the hearing and determination of the proceeding.
The defendant by the summons also seeks an order for costs, but I think that may be immediately put to one side.
The proceeding itself was filed on 18 August this year and seeks the following relief:
1.A declaration that Glenbarry’s right to use the land situated at and known as 58-64 Glenbarry Road, Campbellfield has been determined.
2. An injunction to restrain Glenbarry from remaining in occupation of the land.
3. Damages for trespass.
The proceeding arises out of a contract for the sale of the land, which is referred to in the statement of claim endorsed on the writ. The agreement is alleged to have been in writing and made on 20 March 2003. In particular, what is sued on in this proceeding is a licence that was granted to the defendant within the contract of sale and under which the defendant was permitted to enter into possession of the land prior to settlement, which it seems was to occur by 19 July 2003. It is alleged that the defendant wrongfully remained in possession after the licence was terminated and I am told that it has continued to remain in possession of the property.
The plaintiff took out a summons for an interlocutory order restraining the defendant from remaining in occupation of the property; that is to say, the plaintiff sought interlocutory relief pending trial to the effect mentioned. The application for that relief was heard by Kellam, J. on 9 September 2003. It was a contested application. His Honour reserved his decision and published reasons on 27 October 2003. It is an elaborate judgment for a matter argued in the Practice Court. It reflects considerable time and reflection upon the matter, which his Honour described as not being easy of resolution. In the end, he came to the conclusion, regarding the matter both from the point of view of the primary question of liability and the balance of convenience, that, upon the plaintiff giving the usual undertaking for damages, the injunction sought should be granted. Accordingly, on 27 October 2003, he ordered that Glenbarry be restrained from remaining in occupation of the land after 12.01 a.m. on 11 November 2003 until further order.
Apart from costs, his Honour also reserved liberty to Glenbarry to apply until 4 p.m. on Friday 31 October 2003. By agreement between the parties, that period of time within which to apply was extended until Monday 3 November 2003. On that day Mr Aizen and Mr Guss appeared before his Honour. His Honour then ordered that the liberty to apply provision be extended until 4 p.m. on Monday 3 November 2003. He heard an application made orally by Mr Guss for the defendant for a further extension of the liberty to apply period, and dismissed the application with costs. It seems clear enough that no material was filed on that occasion for the consideration of his Honour.
It is necessary to keep in mind clearly what the application is that is before me for resolution today. It is not an application made pursuant to the liberty to apply granted by his Honour. That has expired. Nor is it, in simple terms, an application to vary the injunction granted by his Honour on that day. If it were such an application, it would be likely to be of a more limited effect in its scope than that which is now brought before me. In other words, it would be an application that would be squarely directed to an extension of the time limited by paragraph 1 of his Honour’s orders. The order being an injunction is, of course, always an order that can be varied by subsequent order.
The application that is before me is for a stay, primarily until hearing and determination of an appeal; alternatively, until the hearing and determination of what is referred to in the summons as “proceedings herein”. I can explain what that means. In the first instance, there is exhibited to the affidavit of Mr Wall a notice of appeal dated this day against the orders of Kellam, J. made on 27 October 2003. Apparently that has been served today. Mr Aizen pointed out that the appeal is from an interlocutory order. Were it not an injunction the appeal would require a grant of leave. The notice of appeal is extensive in its terms, in the sense that it takes many grounds against the correctness of his Honour’s reasons. The second aspect of the summons is the reference to “the proceedings herein”. It would seem clear enough from the tenor of Mr Guss’s submissions that that refers not merely to the present proceeding in which this application is made, but to two other proceedings. There is a proceeding 7204 of 2003, which raises a question, apparently, about a rescission notice, but which proceeding is not before me and which has been fixed for trial on 2 April next year. There is another proceeding, 7534 of 2003. As I understand it, all proceedings are to be dealt with at the same time.
In addressing his submissions Mr Guss referred firstly to the judgment of his Honour in so far as it related to the law concerning licences and their determination. His Honour went into some detail in setting out the arguments of the parties before him and in dealing with them. I have read his Honour’s reasons. It would be quite inappropriate for me to second-guess anything that his Honour said. That is a matter for the Court of Appeal. One point that was raised by Mr Guss was that the well-known Wintergarten case made it clear that, to be effective, a determination of a licence should grant reasonable time to the person in possession to vacate. That is a matter which in the first instance Kellam, J. clearly had in mind. When he gave his decision he heard the parties as to the period of time which should be ordered for vacation of the premises. I am informed by Mr Aizen that he suggested one week and that Mr Guss suggested one month, and that his Honour suggested two weeks and gave liberty to apply. That time expired. It was extended until 3 November, but that expired without an application supported by evidence being made to his Honour. The question therefore is presented as a stay pending appeal, or alternatively until hearing and determination of the proceedings.
Notwithstanding the submission that the appeal is not competent without leave, I determine the application on the basis that there is a competent appeal.
The affidavit of Wall upon which Mr Guss moves was criticised in certain respects by Mr Aizen, and I think with some justification. It is unnecessary to repeat in detail what Mr Aizen said only a moment ago, but it is a point of substance that in paragraph 3 of his affidavit Mr Wall did not condescend to indicate when it was that he caused the defendant’s servants and agents to contact machinery companies, and there is an accompanying lack of detail as to the action generally that was taken by the defendant to ensure compliance by it with his Honour’s order. The criticism concerning the lack of dates and specification in paragraphs 7, 8 and 9 is, I think, fairly made. It gives rise to concern, I think, that the defendant has not done, or may well not have done, all that it might have done as speedily as possible to ensure compliance with his Honour’s order. It is not irrelevant, I think, in this regard to recall the critical terms of paragraph 47 of his Honour’s reasons, in which he concluded that the conduct of the defendant in relation to the transaction in dispute, and to the litigation which has followed, entitled him to take the view that the principal tactic being adopted by it is one of delay. “It appears to be clear, on the material before me,” his Honour said, “that the conduct of the defendant prior to the proposed settlement date was dilatory” – and his Honour went on to elaborate on these matters. It is true that the affidavit of Mr Wall has referred to advice of Mr Jacobson as to the time to be taken in relocating, or at least vacating, the defendant’s equipment from the premises, although I note that Jacobson himself has not sworn an affidavit; and it is true that the affidavit deposes as to approximately six full-time employees and casual staff as required being engaged in the business being conducted by the defendant on the premises, and that it has a turnover of approximately $80,000 per month with forward orders. He also refers to disruption in the Christmas period and to difficulty in relocating in that period. As Mr Aizen says, these are matters that are to be taken into account in a relative balance between the parties in determining whether a stay should be granted.
Mr Aizen also points out, and it is the fact, that the defendant has been in occupation of these premises since March this year, as I understand it, without payment of any amount, and if this present application was acceded to it could be a very considerable time indeed until the defendant might cease to occupy the premises, assuming that happened under court order. There is always the possibility that the trial next year might not go on; some reason might come to exist as to why it should not do so and should be delayed. One does not know; I cannot speculate; but that sort of thing happens.
There is, therefore, the fact of disruption to the business. That is not denied. Mr Guss further submitted that the appeal would be rendered nugatory if the stay was not granted. I do not accept these submissions. Furthermore the plaintiff has given an undertaking for damages. I do not accept the point made by Mr Guss, somewhat obliquely, that the plaintiff might not be good for an undertaking for damages. He did not actually say that, but he referred to the plaintiff’s undertaking for damages, which he said could be considerable. If the reason for making the point was to seriously contend that the plaintiff might not be good for an undertaking, which is presently proffered, then Mr Aizen points to the sale price of the property; but there is another point in addition to that, and that is that Kellam, J. has already decided that it is appropriate to grant the present injunction on the plaintiff’s undertaking. I have no reason to doubt that that was a proper course to have taken.
Regarding the materials overall, the view that I arrive at is that I am not satisfied that it is appropriate to grant a stay. The matter received a very considerable degree of attention from the judge in the Practice Court. The case was argued on 9 September. Judgment was not given until well over a month later, on 27 October. The defendant had all of the intervening time to prepare for the worst contingency, that is to say the grant of an injunction. Liberty to apply was allowed for two weeks for the variation of the injunction, it was extended by consent for a few days, and we are now at 10 November, which is two months following the initial argument in the practice court. I think the point is right that Mr Aizen makes, that the application has now been made today at the very last moment, and at a time when the plaintiff, who does not want the delay occasioned by any adjournment, and who has been ready since 27 October to deal with an application for a variation, has really no effective opportunity of answering the affidavit. Of course, Mr Guss said, well, he would be happy for an adjournment, but there must come a time when the curtain comes down. One can make a late application, but if the result of that is to further extend times, then one can sometimes have a suspicion that a game is being played that is designed to delay, to the advantage of the defendant. That, I think, is the sort of point that Kellam, J. was making in his judgment. I am concerned about the generality of the Wall affidavit.
I propose to refuse the application that is made. That does not mean that the defendant is precluded from making another application. The application that has been made seems to me not to have dealt appropriately with an immediate problem in coping with the order. It was not supported by an affidavit setting out in detail the efforts that were made, when they were made, and the responses received in relation to them, and which would explain why it is that only another day or two is required in order to comply with the order. That is not the sort of application I have received today, at least not as it has been supported by the affidavit of Wall. What I have received today is a blanket application to delay compliance with the order of the court for a very considerable time indeed, and it is made, in my view, on an affidavit of unsatisfactory persuasion. For those reasons, I propose simply to refuse the relief in the summons.
(Discussion ensued.)
I do not propose to make any order varying the injunction. I think the appropriate resolution of the matter is to dismiss the present application with costs on the usual basis. There will be two orders:
1. The summons is dismissed.
2. The defendant pay the plaintiff’s costs of the summons.
I will leave it up to the defendant to make an application on proper material in due course, and you are just going to have to deal with it, Mr Aizen and Mr Guss, as it comes. I am not going to treat the present summons as a live application. It is dismissed.
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