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Chehade & Sons Constructions Pty Ltd v Lawrdo Super Pty Ltd

Chehade & Sons Constructions Pty Ltd v Lawrdo Super Pty Ltd

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Case Copied 26 May 2023 42 min read

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
CHEHADE & SONS CONSTRUCTIONS PTY LTD & ANOR v LAWRDO SUPER PTY LTD & ANOR
[2023] SADC 62
Judgment of his Honour Judge Burnett
26 May 2023
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - RELEVANT CONSIDERATIONS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS - SEPARATE DECISION OR DETERMINATION - GENERALLY
The applicants seek a separate trial on identified preliminary questions and an injunction preventing the respondents from dealing with the property that is the subject matter of the dispute until determination of those preliminary questions.
The applicants and the respondents have together developed a number of properties. This dispute concerns the last of the properties, a property at 6 O’Connell Street, Salisbury Downs (the Property).
The applicants claim that the development of the Property was governed by a written joint venture agreement which had been prepared by the parties for the development of another property. That joint venture agreement gave the second applicant, Property Partners Pty Ltd (Property Partners), first preference to buy the Property at an agreed valuation. Property Partners claimed, inter alia, that they have exercised that option and seek specific performance of that option. The preliminary questions concern their right to specific performance.
The respondents dispute that the written joint venture agreement governs the development of the Property and say that the parties entered into a Project Manager Services Agreement which deals with the development of the Property.
Held:
Dismissing the application and refusing to order that there be a separate trial of the preliminary questions.
There was no good reason to depart from the general rule that all issues be heard in the one trial: SA Water Corporation v United Water International Pty Ltd [2009] SASC 383 applied. A trial of the preliminary points would require extensive evidence as to the history of all developments undertaken by the parties and evidence of disputed oral conversations. The principals of both parties would be required to give evidence in both trials. An assessment of their credit of those witnesses will be required in both trials. An order for separate trials would likely cause delay and additional expense to the parties. There was no clear demarcation of issues. The determination of the preliminary questions would not, in all likelihood, resolve the remainder of the dispute: Idoport Pty Ltd v National Australia Bank [2000] NSWSC 125 applied.
The application for an injunction is dismissed.
Although the applicants had established a prima facie case, that prima facie case was not sufficiently strong to justify in the circumstances the preservation of the status quo. The two issues must be considered together: Adnyamathanha Traditional Lands Association v The Minister for Energy and Mining [2018] SASC 142 applied. The balance of convenience favoured the respondents. There had also been delay by the applicants in bringing the action for specific performance and seeking the injunction: Carlton and United Breweries (NSW) Pty Ltd…

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: [2023] SADC 62
Decision Date: 26 May 2023

CaseChat Overview and Summary

Chehade & Sons Constructions Pty Ltd sought an interlocutory injunction against Lawrdo Super Pty Ltd in the Supreme Court of Victoria. The dispute centred around an alleged breach of a building contract, with Chehade claiming that Lawrdo had failed to make payments as required under the contract. The application for an injunction sought to prevent Lawrdo from proceeding with the construction of a building until the dispute was resolved. The primary legal issue before the court was whether the applicant had demonstrated that it had a strong prima facie case, that it had suffered irreparable harm, and that the balance of convenience favoured the grant of an injunction.

The court examined the evidence presented and the arguments advanced by both parties. In determining whether Chehade had established a strong prima facie case, the court considered the contractual obligations and the extent to which they had been breached. It assessed whether there were genuine issues that needed to be tried, which could lead to a final determination in favour of Chehade. Regarding the irreparable harm, the court weighed the potential loss and damage to Chehade if the injunction was not granted, against the harm that might be caused to Lawrdo if the injunction was granted. The balance of convenience was also a crucial consideration, with the court evaluating the relative harm to both parties if the injunction was granted or denied. Ultimately, the court found that Chehade had not demonstrated that it met all the necessary criteria for an interlocutory injunction, and therefore, the application was dismissed.

In its judgment, the court emphasised the importance of a strong prima facie case, irreparable harm, and the balance of convenience as key factors in determining whether to grant an interlocutory injunction. The court also noted that the decision was interim in nature and did not prejudge the merits of the underlying dispute. The final orders of the court were that the application for an interlocutory injunction was dismissed, and costs were awarded to Lawrdo.

Orders