Boral Limited v Elam Aghili

[2008] ACTCA 15

BORAL LIMITED v ELAM AGHILI
[2008] ACTCA 15 (3 September 2008)

PRACTICE AND PROCEDURE – interim preservation of property – no issue of principle – turns on its own facts.

Land Titles Act 1925 (ACT)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 18 of 2008
No. SC 607 of 2008

Judge:              Refshauge J
Court of Appeal of the Australian Capital Territory

Date:               3 September 2008

IN THE SUPREME COURT OF THE       )          No ACTCA 18 of 2008
  )          No. SC 607 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THA MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:BORAL LIMITED

Appellant

AND:ELAM AGHILI

Respondent

ORDER

Judge:  Refshauge J
Date:  3 September 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. Upon an undertaking given by the appellant through its counsel as to damages in the usual terms, the respondent, by herself, her employees and agents, be restrained from selling, mortgaging, encumbering or otherwise dealing with the land described as block 12, section 6, Forrest in the Australian Capital Territory situated at 8 Somers Crescent, Forrest in the Australian Capital Territory. 

2. This order be served by being served on Premier Capital Properties at Shop 20, The Marketplace, Hibberson Street, Gungahlin, within two days.

3. The question of costs is reserved.

4. The parties have liberty to apply on 2 days notice.

1. This is an application for an injunction to restrain the respondent to this appeal from selling, mortgaging, encumbering or otherwise dealing with certain land. 

1. The appeal arises following a decision of the Master in which he construed a credit agreement between the appellant and the business of the respondent’s husband supported by a guarantee given by the respondent and her husband.

2. In the credit arrangements it was provided that a charge for securing the outstanding debt, if any, between the appellant and the business of the respondent’s husband was included.  The terms of that charge were the subject of dispute before the Master and he construed it to be limited to New South Wales land only.

3. The appeal challenges that and will be based upon an argument that the charge is much wider than that, notwithstanding references to documents and statutory provisions that relate to New South Wales. 

4. I have had the benefit of very helpful and cogently prepared and argued submissions by Ms Donohoe SC on behalf of the appellant, and I am satisfied that there is an arguable case to show that the decision of the learned Master was wrong.

5. The point at issue was that the appellant had lodged a caveat to protect its charge and when it was sought by the Registrar-General under the relevant provisions of the Land Titles Act 1925 (ACT) to have the appellant show cause why the caveat should not be removed, an application was made, as is usual in these circumstances, for the caveat to be extended. It was during that application that the Master construed the credit arrangements in the way that I have set out above.

6. The matter came before me originally as an urgent injunction in the proceedings before the Master and, to preserve the status quo in the absence of the commencement of appeal, I gave interlocutory relief on an urgent basis. 

1. As a condition of that relief I required the appellant to commence these proceedings, the appeal, so as to regularise the matter and then to make an application for a stay in these proceedings in appropriate terms as an incident of the preservation of the subject matter of the appeal.  It is that application which is now before me.

2. I have, as I noted above, considered that there is an arguable case and therefore there is an entitlement on that ground to relief. 

3. I have also given consideration to the form of relief.  While an injunction ordinarily will not be granted where damages would be an adequate remedy, here the appellant is really seeking to protect its credit interest and monies unpaid by the business of the respondent’s husband. It seems to me, given the circumstances, that it is not inappropriate to preserve the position by granting an injunction in the terms sought.

4. On the three occasions now that the matter has been before the court there has been no appearance by or on behalf of the respondent, or anyone else with an interest in the matter other than the appellant.  I have ensured that the proceedings were brought to the notice of the respondent as best as possible.  Service proved somewhat difficult and I gave orders on the last occasion for substituted service.

5. Those orders have now been complied with and I note that in the affidavit of Anthony Baldock of 27 August 2008 in which he deposes to having served the relevant documents on the real estate agent who had advertised the subject property for sale.

6. In a conversation with the agent on 25 August 2008 Mr Baldock deposes that the agent said to him that he had received the court documents and would pass them on to the respondent as soon as possible. 

7. In those circumstances I am satisfied that the respondent has or is likely to have had notice of these proceedings.

1. In all the circumstances, therefore, I think that it is appropriate for the property to be preserved on an interim basis.  I have given some thought as to whether that should be done in the usual terms with a short return date or whether the order should go until further order, that is, in effect, until the appeal is heard.

2. In my view, having regard to the fact that there has been no response to the order I made in the proceedings below, I have come to the view that it is not inappropriate for the order to be made until further order.

3. Accordingly, upon an undertaking given by the appellant through its counsel as to damages in the usual terms, I order that the respondent, by herself, her employees and agents, be restrained from selling, mortgaging, encumbering or otherwise dealing with the land described as block 12, section 6, Forrest in the Australian Capital Territory situated at 8 Somers Crescent, Forrest in the Territory.  I reserve the question of costs and I reserve to the parties liberty to apply on 2 days notice.

4. I further order that this order be served by being served on Premier Capital Properties at Shop 20, The Marketplace, Hibberson Street, Gungahlin within 2 days.

5. I direct that a photocopy be made of the affidavit of Alison Jane Kenny of 26 August 2008 and placed on file number SC 607 of 2008.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:
Date:        24 October 2008

Counsel for the Appellant:  Ms H L Donohoe
Solicitor for the Appellant:  Wood Fussell Solicitors
Counsel for the Respondent:  No appearance
Solicitor for the Respondent:  No Appearance

Date of hearing:  20 August 2008, 22 August 2008, 3 September 2008

Date of judgment:  3 September 2008