Bairstow v Berry

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.