Cooper v Moloney (No 6)

Case [2012] SASC 212

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Civil)

COOPER v MOLONEY (NO 6)

[2012] SASC 212

Judgment of The Honourable Justice Blue

15 November 2012

EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - INJUNCTIONS TO PRESERVE STATUS QUO AND PROPERTY PENDING DETERMINATION OF RIGHTS

EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - RELEVANT CONSIDERATIONS - BALANCE OF CONVENIENCE GENERALLY

PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - SOLICITOR AND CLIENT - ACTING AGAINST FORMER CLIENTS

PROCEDURE - COSTS - SECURITY FOR COSTS - OTHER REASONS FOR SECURITY

Hampden Park Pty Ltd (a Moloney company) sues Mr Cooper for trespass to land. Mr Cooper denies the claim on the basis and counterclaims for a declaration that he entered into a contract for a 10 year lease. Mr Cooper seeks an interlocutory injunction restraining Hampden Park evicting him before trial.

Mr Cooper sues Gortmore Proprietors (a partnership of the Moloneys) for work and labour allegedly performed pursuant to three contracts and the three Moloney land owners in restitution for $661,747 (the Debt Action). In October 2011, he lodged worker’s liens over the three titles to the land and in November 2011 he instituted the action claiming the monies said to be due by Gortmore Proprietors and the land owners. The land owners applied to the District Court to remove the liens from the titles on the ground that, in the action, Mr Cooper did not seek to enforce the liens within the meaning of s 15 of the Workers Liens Act 1893 (SA) within the requisite 14 days. Mr Cooper sought an interlocutory injunction restraining the Registrar-General from removing the liens before trial. A Master dismissed the application and Mr Cooper appeals against the dismissal. He also applies for a separate trial of the issue whether by commencing the action he sought to enforce the liens within the requisite 14 days.

The Moloneys seek an injunction restraining Camatta Lempens from acting as solicitors for Mr Cooper in the actions on the ground that they purportedly previously acted for Mr Moloney in relation to another matter.

The Moloneys seek security for costs in the Debt Action.

Held

Interlocutory injunction to restrain eviction

1. Mr Cooper has satisfied the agreed first limb of the criteria for the grant of an interlocutory injunction by making out a prima facie case (at [34] – [38]).

2. The grant of an interlocutory injunction would enable Mr Cooper to continue a use of the land which prima facie is contrary to section 44 of the Development Act 1993 (SA). The Court should not, by injunctive order, enable the continuation of an illegal activity (at [66], [77], [83]).

3. The balance of convenience favours not granting the injunction. The potential prejudice to the Moloneys outweighs the potential prejudice to Mr Cooper if the injunction is not granted (at [69] – [82]).

4.      Application for interlocutory injunction dismissed.

Separate trial of question whether action issued to enforce worker’s liens

5.      The enforcement action issue is…

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AGLC
Cooper v Moloney (No 6) [2012] SASC 212
Case
[2012] SASC 212
Decision Date

CaseChat Overview and Summary

Cooper v Moloney (No 6) involved a dispute between Brendan Moloney, Brian Moloney, Hampden Park Pty Ltd, and Mr Cooper, who had various dealings and communications between late 2009 and early 2011. The parties had conflicting views on the nature and terms of their agreements, with Mr Cooper alleging an oral contract for the lease of certain sheds on Hampden Park's land, while the Moloneys denied any such contract. The court had to decide several legal issues, including whether the Moloneys were entitled to an order for security for costs, whether an interlocutory injunction should be granted to restrain the Moloneys from evicting Mr Cooper and preventing access to the sheds, and whether an injunction should be granted to restrain Camatta Lempens from acting for Mr Cooper in the actions.

The court found that the Moloneys had not established any ground under rule 194 for an order for security for costs, and therefore dismissed the application. The court also concluded that the Moloneys had not met the onus of establishing that the balance of convenience favoured the grant of an interlocutory injunction to restrain them from evicting Mr Cooper and precluding access to the sheds. The court dissolved the interim injunction that had been granted previously. However, the court allowed Mr Cooper’s appeal against the order by the Master dismissing his application for an interlocutory injunction restraining the Registrar-General from making memoranda that the workers liens had ceased. The court also dismissed the Moloneys’ application for security for costs in the Debt Action.

The court dismissed Mr Moloney’s application for an injunction restraining Camatta Lempens from acting for Mr Cooper in the actions. The court found that there was no evidence to suggest that Camatta Lempens had acted in any way that would warrant an injunction. The court will hear the parties as to precise orders to be made.

Orders

Orders of the court

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Background

Background to the litigation

These reasons for judgment address those four applications.Background factsThe parties At material times, Brendan Moloney, Brian Moloney and Hampden Park Pty Ltd (“Hampden Park”) owned adjoining lots of farmland situated three kilometres out of Maitland, South Australia. The total area of the three lots (collectively “the Moloney land”) was approximately 550 hectares. Brian Moloney was the sole director of Hampden Park. Gortmore Proprietors was a partnership comprising Brian, Brendan and Helen Moloney. Gortmore Proprietors carried on the farming activities undertaken on the Moloney land, principally cereal and pulse cropping. Mr Cooper is involved in the repair, maintenance and manufacture of farming machinery and equipment. Prior to August 2009, he was trustee of the T & A Holdings Trust. On 26 August 2009, he was made bankrupt. Mrs Cooper replaced Mr Cooper as trustee around that time. As at September 2009, Mr Cooper was involved in a farming machinery and equipment workshop business in Moonta. This business was conducted by the trustee of the T & A Holdings Trust. There is a dispute whether Mr Cooper told Brendan Moloney (“Mr Moloney”) of this or whether Mr Moloney believed that Mr Cooper carried on the business in his own right under the name “T & A Holdings”.The dealings Mr Cooper and Mr Moloney had a number of communications and dealings between late 2009 and early 2011. There are fundamental disputes between them concerning the existence, nature and terms of the dealings and communications. There is a lack of clarity on the material before me as to the identity of the party or parties on each side of such dealings as did occur. Most contracts alleged by one side are denied by the other side. There is a lack of clarity whether any given contract was entered into by Mr Cooper on his own behalf or on behalf of the trustee of the T & A Holdings Trust or on behalf of Rothmore ALT Engineering. There is a lack of clarity whether any given contract was entered into by Mr Moloney on his own behalf or on behalf of Gortmore Proprietors or Hampden Park. I refer in neutral terms to “Mr Cooper” to designate Mr Cooper and/or any other persons or entities on his side and to “the Moloneys” (as above) to designate Mr Moloney and/or any other persons or entities on his side. In February 2010, Mr Cooper moved equipment and materials from the Moonta workshop to a shed or sheds on Hampden Park’s land. Mr Cooper’s case is that on 28 December 2009 he entered into an oral contract with Mr Moloney as agent for Hampden Park under which it was agreed that Hampden Park would lease to Mr Cooper the shearing shed, the storage shed and part of the machinery shed together with access to the adjoining yard on its land (collectively “the sheds”) for 10 years at a rent of $100 per week per shed. The Moloneys’ case is that there was no such discussion and no contract. Their case is that Mr Moloney told Mr Cooper that he could store items in the shearing shed on a temporary basis while he found premises to replace the Moonta workshop premises and that this discussion occurred in January 2010.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Moloneys have not established any ground under rule 194 for an order for security for costs. I dismiss the application for security for costs. Conclusion I dismiss the application for an interlocutory injunction restraining the Moloneys from evicting Mr Cooper and precluding access to the sheds (FDN 12 in the District Court). I dissolve the interim injunction granted on 24 February 2012. I allow Mr Cooper’s appeal against the order by the Master dismissing his application for an interlocutory injunction restraining the Registrar-General from making memoranda that the workers liens have ceased (FDN 53). I will make an order restraining the Registrar-General from so acting until further order. I dismiss Mr Moloney’s application for an injunction restraining Camatta Lempens from acting for Mr Cooper in the actions (FDN 11 in the Debt Action and FDN 2 in the Trespass Action). I dismiss the Moloneys’ application for security for costs in the Debt Action (FDN 11). I will hear the parties as to precise orders to be made.

Ratio Decidendi

Legal Principle Established

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