Bacardi Holdings Pty Ltd v GREENTEAK Pty Ltd
[2005] WASC 222
•11 OCTOBER 2005
BACARDI HOLDINGS PTY LTD -v- GREENTEAK PTY LTD & ORS [2005] WASC 222
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 222 | |
| 11/10/2005 | |||
| Case No: | CIV:1437/2005 | 21 SEPTEMBER 2005 | |
| Coram: | MASTER SANDERSON | 21/09/05 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Injunction granted on terms | ||
| B | |||
| PDF Version |
| Parties: | BACARDI HOLDINGS PTY LTD GREENTEAK PTY LTD (ACN 086 117 768) HOCKING LAND COMPANY PTY LTD (ACN 084 881 309) RICHKING NOMINEES PTY LTD (ACN 085 284 653) |
Catchwords: | Interlocutory injunction Application to stop plaintiff lodging caveat over the second defendant's property Turns on own facts |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
GREENTEAK PTY LTD (ACN 086 117 768)
First Defendant
HOCKING LAND COMPANY PTY LTD (ACN 084 881 309)
Second Defendant
RICHKING NOMINEES PTY LTD (ACN 085 284 653)
Third Defendant
Catchwords:
Interlocutory injunction - Application to stop plaintiff lodging caveat over the second defendant's property - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Injunction granted on terms
Category: B
Representation:
Counsel:
Plaintiff : Mr M D Cuerden
First Defendant : No appearance
Second Defendant : Mr J R Birman
Third Defendant : No appearance
Solicitors:
Plaintiff : Holborn Lenhoff Massey
First Defendant : No appearance
Second Defendant : Birman & Ride
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER SANDERSON: This was the second defendant's application for an injunction and related orders. At the conclusion of the hearing I indicated I would grant the injunction on terms. I indicated to the parties that I would publish reasons at a later date. These are my reasons for granting the injunction and for imposing the attached terms. These reasons are to be read in conjunction with the reasons published contemporaneously in Hocking Land Company Pty Ltd v Bacardi Holdings Pty Ltd, CIV 2053/05. The relevant background facts are contained in the other decision.
2 In this action the first and third defendants applied for an order for security for costs. On 5 August 2005 Master Newnes made an order for security in favour of those two defendants and ordered that all proceedings in the action be stayed until the security was provided. Despite the stay order the second defendant brought this injunction application. That led to the slightly odd position of the second defendant, in whose favour the stay operated, taking a step in the proceedings. Counsel for the plaintiff took no real objection to the matter being dealt with in that way and accordingly I made an order lifting the stay to allow this application to proceed.
3 The injunction sought by the second defendant against the plaintiff was in terms designed to prevent the plaintiff lodging any caveat against the defendant's land. The application was accompanied by the usual undertakings. The solicitors for the plaintiff had indicated that if an injunction in these terms was not granted it was the plaintiff's intention to lodge subject to claim caveats over residential lots the second defendant was presently attempting to sell to the public.
4 In opposition to the application the plaintiff relied on affidavit material filed in Hocking Land Company Pty Ltd v Bacardi Holdings Pty Ltd CIV 2053/05. No additional affidavits were filed by the second defendant in this action. In particular, the plaintiff relied on an affidavit of Craig Allan Hughes ("Mr Hughes") sworn 20 September 2005. That affidavit was filed in action CIV 2053/05 but was in the end relevant only to the injunction application made in these proceedings. This was effectively the only affidavit upon which reliance was placed by the plaintiff. However, to make sense of the affidavit it is necessary to refer to other affidavits sworn in those proceedings.
5 Effectively what Mr Hughes does in his affidavit is give a version of the Missing Agreement which is different from the version set out in these and the other proceedings. Mr Hughes says that the second defendant was
(Page 4)
- acquiring land adjacent to the Core Lots for the purposes of subdivision. He expresses the position in this way (par 8):
"The purpose of the acquisition of the land (adjacent to the core lots) was for it to be sub-divided into residential lots, however I did not intend in my affidavit and in my statutory declaration to suggest that the charge only existed over residential lots which had been subdivided within 3 years. Under the agreement Bacardi's right to payment of $2000.00 per residential lot for the Affected Lots (ie those for which the parent lots were located within 6 kilometre radius of the Core Blocks) and its charge over residential lots existed provided the parent lots from which the residential lots had been acquired within the 3 year period. That is, the effect of the agreement was that provided the parent lots were acquired within 3 years then Bacardi was entitled to $2000.00 per residential lot and to charge those residential lots to secure the total debt, whether or not the subdivision into residential lots had occurred within the 3 year period. I cannot now specifically recall the precise form of the words used but that was the effect of the written terms of the agreement."
7 The second difficulty is that the latest version of the Missing Agreement anticipates an interest being created in each of the residential lots resulting from the subdivision of adjacent land. While that might be possible as a matter of law, it would take very careful drafting to ensure such a result. It is worthy of note that Mr Hughes in par 8 of his affidavit which I have quoted above says that he "cannot now specifically recall the precise form of words" used in the Missing Agreement. In the face of what the second defendant says were the terms of the Missing Agreement
(Page 5)
- it would seem to me that there is a real question as to whether or not there is a serious question to be tried. Even if there is, in my view, the plaintiff has a weak case.
8 There is then the question of the balance of convenience. Here the advantage lies overwhelmingly with the second defendant. The second defendant wishes to get on and sell the subdivided residential lots. If the plaintiff has any rights at all to lodge a caveat it is only a "subject to claim" caveat. Submissions put on behalf of the plaintiff anticipate a discharge of caveat being provided by the plaintiff to the second defendant upon the sale of each residential lot provided that $2000 or $2500 (depending upon whether the sale was one of the Core Lots or one of the Affected Lots) being paid into some form of trust account. In my view, that is an unnecessarily cumbersome procedure. The better option was to allow the sales to proceed without caveats being lodged but with additional safeguards.
9 On that basis I granted the injunction on two conditions. The first was that an undertaking as to damages should not only be provided by the second defendant but by Allen Bruce Caratti. Mr Caratti is associated with the second defendant and he swore an affidavit in the other proceedings indicating that he was a man of some substance. So the plaintiff is protected if the undertaking as to damages is ever called upon. The second condition was that the second defendant was to notify the plaintiff within 7 days of the date of settlement of the sale of any of the plaintiff's land. Throughout his affidavits in the other proceedings Mr Hughes complains of not being able to ascertain what residential lots the second defendant was selling so as to enable him to calculate the plaintiff's entitlement, if any. The purpose of requiring the notice was to allow Mr Hughes to know what lots were being sold and to keep a track of his alleged entitlement.
10 During the course of argument counsel for the second defendant conceded that the plaintiff, on any version of the Missing Agreement, would be entitled to lodge caveats over the Core Lots. His concession was made only in the context of the injunction application and was not a general concession. That being so, the order I made prevented the plaintiff lodging caveats only over the Affected Lots, not the Core Lots.
11 For these reasons I granted the injunction on conditions.
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