Centreplex Pty Ltd v Noahs Rosehill Waters Pty Ltd - [2019] WASC 252

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   CENTREPLEX PTY LTD -v- NOAHS ROSEHILL WATERS PTY LTD [2019] WASC 252
CORAM:   LE MIERE J
HEARD:   25 & 27 JUNE 2019
DELIVERED          :   12 JULY 2019
FILE NO/S:   CIV 2084 of 2019
BETWEEN:   CENTREPLEX PTY LTD
Plaintiff
AND
NOAHS ROSEHILL WATERS PTY LTD
Defendant

Catchwords:

Practice and procedure - Applications for interlocutory injunction restraining defendant from preventing the plaintiff from performing its obligations pursuant to the agreement - Whether plaintiff has a prima facie case for final relief - Whether balance of convenience favours relief sought by plaintiff - Turns on own facts

Contract - Construction of commercial contract - Whether agreement lawfully terminated by notice of termination - Whether plaintiff breached the agreement - whether the agreement was repudiated by plaintiff - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 9, s 206A(1), s 206A(a), s 206A(1B), s 206B, s 206GAB, s 206G

Result:

Plaintiff's application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr G R Donaldson SC
Defendant	:	Mr M L Bennett & Mr M A MacLennan

Solicitors:

Plaintiff	:	Lark Lawyers
Defendant	:	Bennett + Co

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

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Commissioner for Corporate Affairs (Vic) v Bracht [1989] VR 821
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1
JTA Le Roux Pty Ltd as trustee for FLR Family Trust v Lawson (No 2) [2013] WASC 373
Ocean Dynamics Charter Pty Ltd v Hamilton Island Enterprises Ltd [2015] FCA 460
Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Queensland (1995) 58 FCR 119
Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24
Shafron v Australian Securities and Investments Commission (2012) 247 CLR 465
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 2) [2017] WASCA 76
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245

LE MIERE J:

Summary

The plaintiff company, Centreplex Pty Ltd, is a licensed real estate agency which carries on business as Rosehill Realty. The defendant, Noahs Rosehill Waters Pty Ltd (Rosehill), is a company formed for the specific purpose of acquiring, developing and selling land at West Parade, South Guildford (the Land).
In 2016 Rosehill Realty and Rosehill entered into a marketing and sales agreement (the Agreement), pursuant to which Rosehill Realty agreed to provide sales and marketing services to Rosehill in respect of the Land.
On 17 June 2019, Rosehill delivered to Rosehill Realty a notice of termination (Notice of Termination) terminating, or purporting to terminate, the Agreement.
On 21 June 2019, Rosehill Realty commenced this action by writ of summons in which Rosehill Realty claims a declaration that the Agreement has not been lawfully terminated by Rosehill by the Notice of Termination, an injunction requiring Rosehill to continue to perform…

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: [2019] WASC 252
Decision Date: 12 JULY 2019

CaseChat Overview and Summary

Centreplex Pty Ltd (the plaintiff) brought an application for an interlocutory injunction against Noahs Rosehill Waters Pty Ltd (the defendant) seeking to restrain the defendant from preventing the plaintiff from performing its obligations under an agreement. The plaintiff sought the injunction to protect its right to continue operating a casino at the defendant’s premises. The defendant opposed the injunction on the basis that the plaintiff had repudiated the agreement, and therefore, the agreement had been lawfully terminated. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the plaintiff had established a prima facie case for relief, whether the plaintiff would suffer injury for which damages would not be an adequate remedy, and whether the balance of convenience favoured the granting of the injunction. The court was also required to determine the validity of the termination of the agreement, the existence of a repudiation by the plaintiff, and whether the plaintiff was in breach of the agreement.

The court found that the plaintiff had established a prima facie case for relief, as there was a serious question to be tried as to the plaintiff's entitlement to relief, and a sufficient likelihood of success to justify the preservation of the status quo pending trial. The court also found that the plaintiff was likely to suffer injury for which damages would not be an adequate remedy, and that the balance of convenience favoured the granting of the injunction. The court held that the plaintiff had not repudiated the agreement, and that the agreement had not been lawfully terminated. The court found that the plaintiff had not breached the agreement, and that the defendant had repudiated the agreement.

The court granted the plaintiff's application for an interlocutory injunction, restraining the defendant from preventing the plaintiff from performing its obligations under the agreement.

Orders

Orders of the court

Full text does not contain this section.

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

Before the court will exercise its discretion to award an interlocutory injunction, an applicant must satisfy the court that:(1)there is a prima facie case, in the sense that there is a serious question to be tried as to the plaintiff's entitlement to relief, and a sufficient likelihood of success to justify the preservation of the status quo pending trial;(2)the plaintiff is likely to suffer injury for which damages will not be an adequate remedy; and(3)the balance of convenience favours the granting of an injunction.[2][2] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 (O'Neill) [19] (Gleeson CJ and Crennan J), [65] – [72] (Gummow and Hayne JJ). The question of the adequacy of damages is an aspect of the balance of convenience not a separate requirement.[3] The question of whether the applicant will suffer irreparable injury for which damages will not be adequate compensation involves no more than a consideration of whether the injury cannot properly be compensated in damages, or by some other remedy. The question of whether the injury cannot properly be compensated in damages involves a consideration of whether it is just in all the circumstances that the plaintiff be confined to their remedy in damages.[4][3] Sino Iron [131].[4] Sino Iron [131]. In assessing the balance of convenience in an interlocutory injunction application, the interests of third persons are relevant and have more or less weight according to other material circumstances. Whether those interests tend to favour the grant or refusal of an injunction in any case depend upon the circumstances of the case. Hardship visited upon third persons by the grant of an interlocutory injunction will rarely be decisive.[5] In this case, the hardship to employees of Rosehill Realty, if the injunction sought is refused and their employment is terminated, is relevant but not decisive.[5] Sino Iron [131]. The requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought, such as the fact that the grant or refusal of the interlocutory application would dispose of the action finally.[6][6] O'Neill [71] - [72] (Gummow and Hayne JJ). The requisite strength of the prima facie case and the balance of convenience are not independent. The more the balance of convenience supports the respondent, and the more serious the consequences for a respondent, the stronger will be the prima facie case the applicant may need to establish to support an interlocutory injunction. Conversely, in a case where the balance of convenience strongly favours the applicant, then the strength of the prima facie case required to support the interlocutory injunction diminishes. Although the court will often examine the strength of a case for an interlocutory injunction, the court will not normally undertake a preliminary trial and will rarely attempt to resolve disputes of fact.[7] The extent to which the court will consider the merits of disputes as to legal issues will depend on the circumstances of the case. There is no inflexible rule.[7] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622 (Kitto, Taylor, Menzies and Owen JJ).