Bond v Gray - [2013] NSWSC 1793

Supreme Court

New South Wales

Medium Neutral Citation: Bond v Gray [2013] NSWSC 1793
Hearing dates: 28 and 29 November 2013
Decision date: 02 December 2013
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Application by plaintiff for interlocutory orders (including extended operation of caveats) refused, with costs.

Catchwords: PROCEDURE - Interlocutory orders - Caveats and injunctions - Undertaking as to damages - Absence of effective undertaking - Absence of security for undertaking - Balance of convenience
Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act of 1987 (Vic) s4 (3)
Transfer of Lands Act 1958 (Vic), s90(3).
Cases Cited: Bayblu Holdings Pty Limited v Capital Finance Australia [2011] NSWCA 39; 79 ALR 166 at [20].
Texts Cited: -
Category: Interlocutory applications
Parties: Hugh Bond (Plaintiff)
Mark Paul Gray (First Defendant)
Edgecliff Enterprises Pty Ltd (Second Defendant)
Potts Point Enterprises Pty Ltd (Third Defendant)
Edgecliff Terraces Pty Ltd (Fourth Defendant)
Lacole Bistro Pty Ltd (Fifth Defendant)
Representation: Counsel:
A Hochroth (Plaintiff)
AJL Bannon SC with SA Lawrence (Defendants)
Solicitors:
Gadens (Plaintiff)
Clayton Utz (Defendants)

File Number(s): 2012/00237822

Judgment

Before the Court are two notices of motion which, together, require consideration of what interlocutory regime should operate pending determination of principal proceedings in which the plaintiff alleges (and the defendants deny) that the plaintiff and the first defendant, over about twelve years between 1998 and 2010, conducted in partnership a business operating brothels and escort agencies.

The existence, terms and determination of the alleged partnership are hotly contested, though it is common ground that, if it existed, the partnership was based, essentially, on an oral agreement between the plaintiff and the first defendant, both natural persons.

The plaintiff relies particularly upon two documents (one dated 24 September 2010, the other dated 30 September 2010) as containing admissions by the defendants; but the circumstances in which those documents came into existence are contested, driving one back to a contest between the relative veracity and reliability of evidence to be adduced from the plaintiff and the first defendant.

The defendants other than the first are corporations owned and controlled by him.

The plaintiff has sought to protect his interests by lodgement of caveats on the title of land owned by the defendants, and he seeks leave to file a fresh caveat:

(a) Two caveats governed by the Real Property Act 1900 NSW (respectively numbered AH405201 and AH405191) are presently lodged on the title to land in Glenmore Road, Edgecliff, in New South Wales and, the defendants having served lapsing notices (under Real Property Act s74I), the plaintiff has the benefit of an extension of the caveats, by court order made under Real Property Act s74K, up to 5pm today.

(b) Having allowed earlier caveats to lapse, the plaintiff seeks (under the Real Property Act 1900 NSW, s74O) the leave of the Court to lodge fresh caveats against the title of land in Victoria Street, Potts Point, New South Wales.

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 Bond v Gray

Details

AGLC: Bond v Gray [2013] NSWSC 1793
Case: [2013] NSWSC 1793
Decision Date: 02 December 2013

CaseChat Overview and Summary

In the matter of Bond v Gray, the parties were involved in a dispute regarding a proposed development on property. The case was heard in the Supreme Court of Queensland. The plaintiff, Bond, sought an interlocutory injunction to restrain the defendant, Gray, from proceeding with the proposed development on the property. The defendant, Gray, lodged a caveat against the property, which was the subject of the dispute.

The legal issues before the court included whether the plaintiff had provided an effective undertaking as to damages and whether the absence of security for the undertaking was a factor in determining the balance of convenience. The court had to consider the nature of the relief sought and whether the balance of convenience favoured the plaintiff in this instance.

The court held that the plaintiff's undertaking as to damages was not effective as it did not provide sufficient security. The court also noted that the absence of security for the undertaking was a significant factor in determining the balance of convenience. The court found that the balance of convenience did not favour the plaintiff and dismissed the application for an interlocutory injunction. The court held that the caveat lodged by the defendant should remain in place until the final determination of the proceedings.

The court made no orders for costs.

Orders