BONTEMPO -v- MIRVAC (WA) PTY LTD [2012] WASC 104

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 104
Published:	02/04/2012
Case No:	CIV:1365/2011	Heard:	16 JANUARY 2012
Coram:	KENNETH MARTIN J	Delivered:	19/01/12
No of pages:	17	Judgment Part:	1 of 1
Result:	Application to extend interim injunction to trial, refused
Category:	A
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Parties:	CARMELO BONTEMPO ANNE CHERIE BONTEMPO MIRVAC (WA) PTY LTD
Catchwords:	Vendor and purchaser Deposit Application for interlocutory injunction Sale and purchase contract Guarantee in lieu of deposit Where injunction sought to prevent bank guarantee being called on Where damages an adequate remedy
Legislation:	Strata Titles Act 1985 (WA), s 69D, s 70, s 70B
Case References:	Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 Tambakis v Fergula [2010] SASC 122, (2010) 107 SASR 246

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BONTEMPO -v- MIRVAC (WA) PTY LTD [2012] WASC 104 CORAM : KENNETH MARTIN J HEARD : 16 JANUARY 2012 DELIVERED : 19 JANUARY 2012 PUBLISHED : 2 APRIL 2012 FILE NO/S : CIV 1365 of 2011 BETWEEN : CARMELO BONTEMPO

First Plaintiff

ANNE CHERIE BONTEMPO

Second Plaintiff

AND

MIRVAC (WA) PTY LTD

Defendant

Catchwords:

Vendor and purchaser - Deposit - Application for interlocutory injunction - Sale and purchase contract - Guarantee in lieu of deposit - Where injunction sought to prevent bank guarantee being called on - Where damages an adequate remedy

Legislation:

Strata Titles Act 1985 (WA), s 69D, s 70, s 70B

(Page 2)

Result:

Application to extend interim injunction to trial, refused

Category: A

Representation:

Counsel:

First Plaintiff : Mr M L Bennett & Ms C L Donald

Second Plaintiff : Mr M L Bennett & Ms C L Donald

Defendant : Ms R J Lee

Solicitors:

First Plaintiff : Bennett & Co

Second Plaintiff : Bennett & Co

Defendant : Minter Ellison

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

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Tambakis v Fergula [2010] SASC 122, (2010) 107 SASR 246

(Page 3)

KENNETH MARTIN J

(This judgment was delivered extemporaneously on 19 January 2012 and has been edited from the transcript.)

1 On Monday, 16 January 2012 I heard an application by the plaintiffs seeking a continuation of an interim injunction granted by Hall J on 6 January 2012, during the court's summer recess. His Honour's orders granted injunctive relief for the plaintiffs until 4.00 pm on 16 January 2012.

2 After hearing argument I extended the interim injunction until 4.00 pm today (Thursday 19 January 2012). I did so on the basis that I would then deliver urgent ex tempore reasons, as I now do.

3 This action was commenced by a writ of summons on 9 March 2011 and has been case managed in my…

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.

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Details

Case: [2012] WASC 104
Decision Date: 2 APRIL 2012

CaseChat Overview and Summary

The case of Bontempo v Mirvac (WA) Pty Ltd concerned a dispute between the vendor, Bontempo, and the purchaser, Mirvac (WA) Pty Ltd, in relation to a deposit for the sale of property. The dispute arose after the purchaser failed to settle the purchase price, leading the vendor to seek an interlocutory injunction to prevent the bank guarantee provided as a substitute for the deposit from being called on. The matter was heard in the Supreme Court of Western Australia.

The primary legal issues before the court were whether the court should grant an interlocutory injunction to prevent the bank guarantee from being called and whether damages would be an adequate remedy for the vendor if the guarantee was called. The vendor argued that the bank guarantee was a critical aspect of the sale agreement and that an injunction was necessary to protect its interests. The purchaser, on the other hand, contended that the guarantee was intended to secure the vendor's financial interests and that damages would be an adequate remedy if the guarantee were called.

The court considered the principles of equity and the nature of the remedy sought. It noted that the vendor had an arguable case for relief and that there was a serious question to be tried. However, the court also found that damages would be an adequate remedy for the vendor if the guarantee were called, and that the balance of convenience favoured the purchaser. The court held that an interlocutory injunction would not be appropriate in these circumstances, and thus refused the application to extend the interim injunction to trial.

In summary, the court denied the vendor's application to extend the interim injunction, finding that damages would be an adequate remedy for the vendor if the guarantee were called. This decision underscores the importance of assessing the adequacy of alternative remedies when considering interlocutory relief in property sale disputes.

Orders

Orders of the court

Application to extend interim injunction to trial, refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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