Bairstow v Berry
[2003] WASC 155
BAIRSTOW -v- BERRY [2003] WASC 155
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 155 | |
| Case No: | CIV:1415/2003 | 6 AUGUST 2003 | |
| Coram: | JOHNSON J | 19/08/03 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Injunction granted | ||
| B | |||
| PDF Version |
| 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
- 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 & Co as his settlement agents. It is unnecessary for the purposes of this application to relate the events which immediately followed the execution of the contract. Suffice to say that on 11 April 2003 the plaintiff commenced an action in this Court for specific performance of the contract. The application for an interlocutory injunction was filed on 28 April 2003.
4 Both parties engaged solicitors to represent them. Cocks Macnish continue to act for the plaintiff. Mr Wallis of Haynes Robinson acted for the defendant until 29 May 2003.
5 Considerable affidavit material, including the relevant correspondence, has been provided to the Court in order to explain the circumstances leading to this application. By letter dated 13 May 2003, Cocks Macnish wrote to Mr Wallis with a proposal to settle the legal action which included a requirement for settlement of the sale of the property to proceed "on or before 26 May 2003". It was further stated in the letter that the plaintiff would immediately arrange for the termite inspection to be completed. On 20 May 2003 the solicitors for the parties reached an agreement which included both these terms.
6 The settlement agent, Mr Moss, telephoned the plaintiff on 21 and 22 May 2003 regarding the settlement of the sale of the property and left messages on his answering machine. The plaintiff deposes to the fact that on 21 and 22 May he was travelling. He does not recall checking his voice mail or receiving a telephone call concerning the settlement. By 23 May the plaintiff was concerned that he had not heard from Mr Moss regarding the settlement and he telephoned a pest control company to
(Page 4)
- arrange an inspection. The plaintiff was informed that it was unlikely that the inspection could occur before 26 May, but that it could take place at 10.30 am on 26 May 2003. On 23 May the plaintiff telephoned Mr Moss and informed his secretary that the inspection could take place on 26 May, subject to confirmation from the defendant as to suitability of the time.
7 On 23 May Mr Moss rang Mr Wallis advising him that the inspection had been arranged for 10.30 am on the 26 May 2003. The solicitors agreed that, if possible, the settlement would take place on 26 May 2003, but that, if it did not occur that day, it should occur as soon as possible thereafter. By letter dated 23 May 2003, Mr Wallis confirmed the substance of that telephone conversation, including the agreement for settlement to proceed "on or as soon after 26 May 2003 as possible".
8 In a letter dated 23 May 2003 the defendant's settlement agents also advised the plaintiff's solicitors that their client would be "signing the transfer of land document and Requisitions on Title today".
9 On 26 May 2003 Mr Moss instructed Strand Settlement Services ("Strand"), David Moss & Co's settlement agents in Perth, to act as settlement agents for the plaintiff and informed Strand that the settlement should be arranged for the next day, if possible. Mr Moss also sent a copy of the settlement statement to the National Australia Bank ("NAB").
10 In the morning of 26 May 2003 the pest inspector arranged by the plaintiff attended at the property. No-one was home and he was unable to carry out the inspection. On being so advised, the plaintiff contacted Mr Moss who informed him that he would contact Mr Wallis.
11 At 4.15 pm on 26 May 2003 Mr Moss received an email from Strand informing him that it could not book the settlement with NAB for 27 May 2003 because the defendant's settlement agent's Perth agent had not received instructions from the defendant's settlement agents and the defendant had not signed the memorandum of transfer of land.
12 The pest inspector again attended the property in the morning of 27 May. On this occasion the defendant was home, but she refused to allow the inspection to take place.
13 On being advised by the plaintiff that the first attempt to conduct an inspection had been unsuccessful and that, on the subsequent day, the defendant had refused to allow the inspection to occur, Mr Moss contacted Mr Wallis who advised that he would contact the defendant.
(Page 5)
- Mr Wallis later telephoned Mr Moss and told him that he had been unable to contact the defendant.
14 It can be seen from this account, summarised from the affidavit evidence, that it was a combination of circumstances rather than any specific default on the part of the plaintiff which prevented the inspection and, hence, the settlement taking place "on or about 26 May", as agreed between the solicitors for the parties.
15 Much of this material is not disputed by the defendant. However, she denies any knowledge of any variation to the agreement reached on 20 May 2003 which required settlement to take place "on or before 26 May 2003" and for the plaintiff to immediately arrange for the termite inspection to be completed. The defendant filed an affidavit in these proceedings. However, as she appeared unrepresented, she was allowed certain latitude in referring in her submissions to matters not included in her affidavit. In my view, it was unnecessary to require her to depose to these matters, nor for the plaintiff to respond to them on oath.
16 The defendant stated that on 15 May she received a letter from Mr Wallis annexing the letter from Cocks Macnish of 13 May 2003. She referred specifically to the paragraph to which I have already referred which required that settlement must proceed "on or before 26 May 2003" and stated that the plaintiff would "immediately arrange for a termite inspection". The plaintiff also made reference to the fact that this was stated to be a final offer.
17 According to the defendant, Mr Wallis rang her at 8.30 am on 23 May 2003 and asked her to sign the transfer documents. She told him that the pest inspector had not contacted her. She said that that was the last she heard from Mr Wallis. On Monday, 26 May 2003 she had a dental appointment and on her return there was no indication that a pest inspector had attended the property.
18 The plaintiff admits that on 27 May the pest inspector attended the property and that she did not allow him to conduct an inspection. She did not ring her solicitor for advice. Her explanation was that the phone had been disconnected.
19 On 28 May the defendant wrote to her solicitor. A copy of that letter was provided to the Court by the defendant during the course of her submissions. It sets out her understanding of the situation and, to some extent, explains her actions. She states that she had been advised on 13 May 2003 that the plaintiff had nominated a settlement date of 26 May
(Page 6)
- 2003. She further states that, as the contract was subject to a termite inspection, she was told by Mr Wallis that a pest inspector would contact her before the 26 May. As no-one contacted her before the settlement date, she considered that the plaintiff did not fulfil this particular clause of the contract before the agreed date and she considered the contract to be at an end. It is apparent from this letter that the defendant has taken the plaintiff's offer of 13 May as representing the agreement between the parties. She has formed a view of the terms of the agreement, and acted upon that view, without reference to her solicitor.
20 Mr Wallis wrote in reply on 28 May 2003. He disputed that the defendant had complied with his advice in preparing for settlement and also advised as follows:
"You state that in your view the contract is at an end as a pest inspector was not instructed by 26 May 2003. Your contention is misconceived. The failure to instruct a pest inspector merely extends the time for settlement. It does not constitute a substantial breach of contract. Accordingly, the contract is not at an end."
21 On 29 May Mr Wallis wrote advising that he was no longer representing her.
22 Notwithstanding the advice received from Mr Wallis prior to him ceasing to act, the defendant maintains her position that the plaintiff did not comply with the terms contained in Cocks Macnish's letter of 13 May 2003 which she sees as representing the terms of the agreement by which both parties were bound. She submitted that the plaintiff had no right to inspect the property on the later date.
23 With respect to her failure to sign the transfer in preparation for the settlement, the defendant submitted that, on her understanding of the agreement referred to in Cocks Macnish's letter of 13 May 2003, the pest inspection would take place, she would be given a copy of the certificate, and they would then proceed to settlement from there.
24 It would appear from the defendant's submissions that she has a number of unresolved issues in relation to the sale of her property which are influencing her decisions in relation to the settlement. She placed much emphasis on the unsatisfactory circumstances of the initial sale and also on allegations made against her and her son by the pest inspector, and repeated by the plaintiff's solicitors, which have caused her considerable distress and which she disputes. The plaintiff does not rely on any such
(Page 7)
- matter in support of his application and, in my view, the allegations are irrelevant to the issue before me and have not been taken into account.
25 It is clearly the case that the defendant now regrets signing the contract. When asked why she did not allow the inspection, she said that she had already rushed into a contract and did not want to make the same mistake. She had decided that she was going to do everything by the book. In her view, that meant requiring strict compliance with what she considered to be the binding requirement that the pest inspection and settlement take place on or before 26 May 2003.
26 The position taken by the defendant overlooks the fact that she was legally represented and that the documentary evidence supports an agreement reached between the solicitors for the party for the date to be extended.
27 The principles upon which interlocutory injunctions are granted or withheld are well known. An applicant for an interlocutory injunction must demonstrate that:
(a) there is a serious question to be tried;
(b) the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation; and
(c) the balance of convenience favours the granting of the injunction.
28 See Castlemaine Tooheys Limited & Ors v State of South Australia (1986) 161 CLR 148 at 153; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 at [13].
29 In considering whether damages are adequate, the test is not simply whether damages will provide the plaintiff with an adequate remedy, but rather whether it would be just, in all the circumstances, to confine the plaintiff to that remedy: Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349; State Transport Authority v Apex Quarries Ltd [1988] VR 187.
30 On the material available to me, I have no hesitation in concluding that there is a serious question to be tried and that it would not be just, in all the circumstances, to confine the plaintiff to damages as a remedy.
31 As to the balance of convenience, the plaintiff seeks relief which is mandatory in character. An application for a mandatory injunction is
(Page 8)
- determined by reference to the same criteria as prohibitory interlocutory relief: Regent's Pty Ltd v Subaru (Australia) Pty Ltd (1996) ATPR 41-463; Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471 at 483 - 484; Davies v Gas Light & Coke Company [1909] 1 Ch 248. However, in the application of the normal tests, often, but not always, the fact that the relief sought is mandatory will tilt the balance of convenience in the defendant's favour. As the learned authors observed in Meagher Gummow and Lehane's, "Equity, Doctrines and Remedies", 4th ed, at page 788:
"This is partly because a mandatory injunction is usually more onerous for a defendant to comply with than a prohibitory one; moreover, the usual purpose of an interlocutory injunction is to preserve the status quo, a consideration inapplicable to mandatory injunctions. But there is nothing to prevent a court from issuing an interlocutory mandatory injunction."
33 For the contract to become unconditional the defendant must allow the termite inspection to take place. In my view, the plaintiff should be in a position to determine whether he wishes to proceed with his action for specific performance. In a case such as this, where the effect of the grant of the mandatory injunction on the defendant is far from onerous, I consider that the balance of convenience lies firmly with the plaintiff.
34 I consequently propose to grant the injunction in the terms sought subject to a variation to the relevant dates.
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