Clark v Rowell Consulting Services Pty Ltd - [2003] WASC 178

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CLARK -v- ROWELL CONSULTING SERVICES PTY LTD & ANOR [2003] WASC 178

CORAM: BARKER J

HEARD: 15 MAY 2003

DELIVERED : 12 SEPTEMBER 2003

FILE NO/S: CIV 2046 of 2002

BETWEEN: RICHARD MELVILLE CLARK
Plaintiff
AND
ROWELL CONSULTING SERVICES PTY LTD (ACN 001 928 758)
First Defendant
WARWICK HAROLD MITFORD ROWELL
Second Defendant

Catchwords:

Interlocutory injunction - Whether mandatory interlocutory injunction requiring plaintiff to do all things necessary to promptly facilitate the execution, settlement and registration of further subdivision and transfer of subdivisional lots should go - Whether prohibitive interlocutory injunction restraining plaintiff from dealing with property unless such dealing be expressed to be subject to the bylaws of the survey strata scheme and arrangements to facilitate staged development is, in effect, a mandatory injunction and whether such an injunction should go - Whether serious issue to be tried which would entitle plaintiff to interlocutory relief sought - Whether irreparable damage to defendants for which damages would not be adequate compensation - Whether balance of convenience favours injunction - Whether Court may become involved in supervision or administration of ongoing, complex, commercial arrangement

Legislation:

Strata Titles Act 1985 (WA), s 3B(2)(a), s 8A(a)(ii)(I), s 51(1)

Supreme Court Act 1935 (WA)
Town Planning and Development Act 1928 (WA), s 20

Trade Practices Act 1974 (Cth), s 75B, s 82

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr D F Beere
First Defendant             :     Mr M C Hotchkin
Second Defendant         :     Mr M C Hotchkin

Solicitors:

Plaintiff:     Beere May & Meyer
First Defendant             :     Hotchkin Hanly
Second Defendant         :     Hotchkin Hanly

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

Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499
Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Clark v Rowell Consulting Services Pty Ltd [2003] WASC 89
Films Rover International Ltd v Cannon Film Sales Ltd (1986) 1 WLR 670
HB Homes Pty Ltd v Beer [1986] 2 Qd R 379
JC Williamson Ltd v Lukey (1931) 45 CLR 282
Redland Bricks Ltd v Morris [1970] AC 652
SDS Corporation Ltd v Pasdonnay Pty Ltd [2002] WASC 276
Secured Income Real Estate (Australia) Ltd v St Martin's Investments Pty Ltd (1979) 144 CLR 596
State of Queensland v Australian Telecommunications Commission (1985) 59 ALR 243

Case(s) also cited:

Hawker De Havilland Ltd v Barabas, unreported; SCt of WA (Anderson J); Library No 920196; 6 April 1992
Hunter Resources Ltd v Eagle Mining Corporation NL, unreported; SCt of WA (Murray J); Library No 950228; 12 May 1995
Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 828
Kwa v Youth Hostels Association of WA (Inc), unreported; SCt of WA (Scott J); Library No 970475; 23 September 1997
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] (1998) 195 CLR 1
Redman v Southern Cross Broadcasting (Australia) Ltd [2001] WASC 9
Shepherd Homes 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: [2003] WASC 178
Decision Date: 12 SEPTEMBER 2003

CaseChat Overview and Summary

The case of Clark v Rowell Consulting Services Pty Ltd involved the plaintiff, Clark, seeking an interlocutory injunction against the defendants, Rowell Consulting Services Pty Ltd and its director. The plaintiff alleged a contract for the development of land and claimed that the defendants had breached the contract. The defendants argued against the injunction and the plaintiff sought both a mandatory and a prohibitive injunction. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court were whether a mandatory interlocutory injunction requiring the plaintiff to facilitate the execution, settlement, and registration of further subdivision and transfer of subdivisional lots should be granted. The court was also required to decide if the prohibitive interlocutory injunction, which would restrain the plaintiff from dealing with the property unless such dealing was subject to the bylaws of the survey strata scheme and arrangements to facilitate staged development, was in effect a mandatory injunction, and if such an injunction should be granted. Additionally, the court needed to consider whether there was a serious issue to be tried that would entitle the plaintiff to the interlocutory relief sought, whether irreparable damage would occur to the defendants for which damages would not be adequate compensation, whether the balance of convenience favoured the injunction, and whether the court should become involved in the supervision or administration of the ongoing, complex, commercial arrangement.

The court found that a mandatory injunction would only be granted in very rare cases, particularly at an interlocutory stage. The court noted that a mandatory injunction should only be granted where its terms can be clearly understood and the court should not become involved in the supervision of the injunction. The court considered the degree of assurance it felt that the injunction was rightly granted at trial and whether prohibitory or mandatory, the fundamental principle remained that the court should take whichever course carried the lower risk of injustice in the event that the party who claimed the injunction failed to establish their right at trial. The court ultimately decided that the application for the injunction should be approached with caution and granted only in a clear case.

The final orders of the court were that the application for the mandatory and prohibitive interlocutory injunctions should be dismissed.

Orders

Orders of the court

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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

Additionally, it is plain that only in very rare cases will a mandatory injunction be granted at an interlocutory stage; as I observed in SDS Corporation Ltd v Pasdonnay Pty Ltd [2002] WASC 276 at [13] by reference to the authorities collected there, including Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471 at 483 per Kennedy J. In particular, it is not common to grant a mandatory injunction which would, if granted, effect the major part of the relief in the action. Accordingly, the application should be approached with caution and granted only in a clear case: HB Homes Pty Ltd v Beer [1986] 2 Qd R 379 at 381. Further, a mandatory injunction will only be granted where its terms can be clearly understood: Redland Bricks Ltd v Morris [1970] AC 652 to 667. A Court should not become involved in the supervision of an injunction: JC Williamson Ltd v Lukey (1931) 45 CLR 282. In considering whether or not a mandatory injunction should go at an interlocutory stage, the Court will regard the degree of assurance it feels will appear at trial that the injunction was rightly granted: State of Queensland v Australian Telecommunications Commission (1985) 59 ALR 243 at 245; Cash Converters Pty Ltd v Hila Pty Ltd (supra) at 484 ‑ 485. However, whether prohibitory or mandatory, the fundamental principle remains in relation to interlocutory injunctions that the Court should take whichever course carries the lower risk of injustice in the event that the party who claims the injunction fails to establish his or her right at trial: Films Rover International Ltd v Cannon Film Sales Ltd (1986) 1 WLR 670 at 680; Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, 501 ‑ 504. I also accept, as suggested by the learned authors of Meagher Gummow & Lehane, Equity Doctrines and Remedies, 3rd ed at page 600 par 2178 that, having regard to these authorities:"In truth, a Judge hearing an application for an interlocutory mandatory injunction must apply exactly the same test as he would in the case of an application for an interlocutory prohibitory injunction, not some different or more exacting test; nor is the fact that the relief sought is mandatory a ground for refusing relief; but in the application of the normal tests, often, but not always, the fact that the relief sought is mandatory will tilt the balance of convenience in the defendant's favour." In his statement of claim, the plaintiff more particularly pleads that, on or about 14 March 1996, the plaintiff and the first defendant entered into a partly written and partly oral contract for the development of the land. The plaintiff pleads out what he says is the "objective purpose and aim" of this contract as well as a number of express terms of the contract. To state the matter very generally, the plaintiff says that the first defendant, of which the second defendant is a director, would design, prepare and obtain approval under the Strata Titles Act 1985 (WA) to a survey‑strata plan for the land. The plaintiff also pleads that there are implied terms of the contract, "implied from its true nature and effect and in order to give it business efficacy", which include the implied term that the first defendant will take all reasonable steps to ensure that the sale of all the proposed lots is effected within a reasonable period of time. The plaintiff pleads in the alternative to the implied terms, that it made a collateral oral contract with the first defendant to similar effect. The plaintiff also pleads that the first defendant owes the plaintiff various fiduciary duties concerning the application of profits and funds earned from the development.