BAIRSTOW -v- BERRY [2003] WASC 155

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 155
Case No:	CIV:1415/2003	Heard:	6 AUGUST 2003
Coram:	JOHNSON J	Delivered:	19/08/03
No of pages:	8	Judgment Part:	1 of 1
Result:	Injunction granted
Category:	B
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Parties:	MICHAEL JOHN BAIRSTOW ELSPETH BERRY
Catchwords:	Interlocutory mandatory injunction Alleged breach of term of contract sale
Legislation:	Nil
Case References:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471 Castlemaine Tooheys Limited & Ors v State of South Australia (1986) 161 CLR 148 Davies v Gas Light & Coke Co (1909) 1 Ch 248 Evans Marshal & Co Ltd v Bertola SA [1973] 1 WLR 349 Films Rover Ltd v Cannon Film Sakes Ltd [ 1987] 1 WLR 670 Regent's Pty Ltd v Subaru (Aust) Pty Ltd (1996) ATPR 41-463 State Transport Authority v Apex Quarries Ltd [1988] VR 187 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BAIRSTOW -v- BERRY [2003] WASC 155 CORAM : JOHNSON J HEARD : 6 AUGUST 2003 DELIVERED : 19 AUGUST 2003 FILE NO/S : CIV 1415 of 2003 BETWEEN : MICHAEL JOHN BAIRSTOW

Plaintiff

AND

ELSPETH BERRY

Defendant

Catchwords:

Interlocutory mandatory injunction - Alleged breach of term of contract sale

Legislation:

Nil

Result:

Injunction granted

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr L S Panotidis

Defendant : In person

Solicitors:

Plaintiff : Cocks Macnish

Defendant : In person

Case(s) referred to in judgment(s):

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63
Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471
Castlemaine Tooheys Limited & Ors v State of South Australia (1986) 161 CLR 148
Davies v Gas Light & Coke Company [1909] 1 Ch 248
Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349
Films Rover Ltd v Cannon Film Sales Ltd [ 1987] 1 WLR 670
Regent's Pty Ltd v Subaru (Australia) Pty Ltd (1996) ATPR 41-463
State Transport Authority v Apex Quarries Ltd [1988] VR 187

Case(s) also cited:

Nil

(Page 3)

1 JOHNSON J: The plaintiff seeks an injunction requiring the defendant to permit a termite inspection of a property at 77 Adelaide Crescent, Middleton Beach, Albany ("the property") which is the subject of a written contract for sale entered into between the plaintiff and the defendant on 30 January 2003 ("the contract").

2 Under the contract, the settlement date is stated to be 28 March 2003. Clause 5 provides that the contract is conditional on a report being obtained from a reputable pest control company certifying that all structural improvements are free from termite activity and stating whether the inspection disclosed damage occasioned by previous termite activity and the extent and nature of such termite activity or damage. The purchaser is to bear the expense of the report.

3 Having entered into the contract, the plaintiff appointed David Moss…

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.

Continue reading Bairstow v Berry

Details

AGLC: Bairstow v Berry [2003] WASC 155
Case: [2003] WASC 155
Decision Date

CaseChat Overview and Summary

The plaintiff, Michael John Bairstow, sought an injunction to compel the defendant, Elspeth Berry, to allow a termite inspection of a property at 77 Adelaide Crescent, Middleton Beach, Albany, which was the subject of a written contract for sale dated 30 January 2003. The contract included a condition that the sale was contingent upon a report from a reputable pest control company confirming the absence of termite activity. The plaintiff's application for an interlocutory mandatory injunction was filed on 28 April 2003, following his initiation of an action for specific performance of the contract on 11 April 2003.

The legal issues before the court were whether there was a serious question to be tried, whether the plaintiff would suffer irreparable harm for which damages would not be an adequate compensation, and whether the balance of convenience favoured granting the injunction. The court found that there was a serious question to be tried, and that it would not be just to confine the plaintiff to damages as a remedy. The balance of convenience was considered to favour the plaintiff because the mandatory injunction was not onerous for the defendant to comply with, and the purpose of the injunction was to allow the plaintiff to determine whether to proceed with his action for specific performance.

The court granted the injunction, with variations to the relevant dates. This decision allowed the plaintiff to proceed with the termite inspection and assess whether to continue with his action for specific performance of the contract.

Orders