CROUCH DEVELOPMENTS PTY LTD -v- D & M (AUSTRALIA) PTY LTD [2008] WASC 151

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 151
Published:	23/07/2008
Case No:	CIV:1487/2008	Heard:	9 MAY 2008
Coram:	MARTIN CJ	Delivered:	9/05/08
No of pages:	9	Judgment Part:	1 of 1
Result:	Application dismissed with costs
Category:	B
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Parties:	CROUCH DEVELOPMENTS PTY LTD D & M (AUSTRALIA) PTY LTD
Catchwords:	Interlocutory injunction Building contract Weighing up probability of ultimate success Interlocutory injunction which would dispose of the action finally Effectively mandatory injunction Effectively specific performance of building contract
Legislation:	Nil
Case References:	Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories (1968) 118 CLR 618 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 Nepean-YKK Pty Ltd v Leighton Contractors Pty Ltd (Unreported, SC (Vic) (Phillips J), No 12178 of 1991, 24 October 1991) State Transport Authority v Apex Quarries Ltd [1988] VR 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CROUCH DEVELOPMENTS PTY LTD -v- D & M (AUSTRALIA) PTY LTD [2008] WASC 151 CORAM : MARTIN CJ HEARD : 9 MAY 2008 DELIVERED : 9 MAY 2008 PUBLISHED : 23 JULY 2008 FILE NO/S : CIV 1487 of 2008 BETWEEN : CROUCH DEVELOPMENTS PTY LTD

Plaintiff

AND

D & M (AUSTRALIA) PTY LTD

Defendant

Catchwords:

Interlocutory injunction - Building contract - Weighing up probability of ultimate success - Interlocutory injunction which would dispose of the action finally - Effectively mandatory injunction - Effectively specific performance of building contract

Legislation:

Nil

Result:

Application dismissed with costs

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr B P Wheatley

Defendant : Mr T O Coyle

Solicitors:

Plaintiff : Mossensons

Defendant : Lavan Legal

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

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories (1968) 118 CLR 618
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605
Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93
Nepean-YKK Pty Ltd v Leighton Contractors Pty Ltd (Unreported, SC (Vic) (Phillips J), No 12178 of 1991, 24 October 1991)
State Transport Authority v Apex Quarries Ltd [1988] VR 187

(Page 3)

MARTIN CJ

1 (This judgment was delivered extemporaneously on 9 May 2008 and has been edited from the transcript.)

2 The plaintiff, Crouch Developments Pty Ltd (the builder), applies for an interim injunction restraining the defendant, D & M (Australia) Pty Ltd (the owner), from acting upon or giving effect to either a notice of default or notice of termination, given by the owner to the builder, pursuant to provisions of the building contract which has been entered into by the parties.

3 The writ which commenced these proceedings carries an indorsement of the relief sought by the builder in the proceedings and the…

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.

Continue reading Crouch Developments Pty Ltd v D & M (Australia) Pty Ltd

Details

AGLC: Crouch Developments Pty Ltd v D & M (Australia) Pty Ltd [2008] WASC 151
Case: [2008] WASC 151
Decision Date: 9 MAY 2008

CaseChat Overview and Summary

In the matter of Crouch Developments Pty Ltd v D & M (Australia) Pty Ltd, the dispute arose out of a building contract. Crouch Developments, the applicant, sought an interlocutory injunction to restrain D & M (Australia) from completing a project without the applicant's consent, arguing that such an action would result in a breach of contract and significant financial loss. The case was heard in the Supreme Court of Queensland.

The legal issues central to the case involved whether the applicant could demonstrate a strong probability of success on the merits, the necessity of an interlocutory injunction to prevent irreparable harm, and whether granting the injunction would effectively mandate specific performance of the building contract. The court had to weigh these factors to determine if an interlocutory injunction was appropriate. Specifically, the court considered whether such an injunction would dispose of the action finally, effectively rendering it an order for specific performance.

The Supreme Court of Queensland dismissed the application for an interlocutory injunction. The court found that while the applicant had shown a probability of success on the merits, the balance of convenience did not favour granting the injunction. The court was concerned that the injunction would effectively compel D & M (Australia) to perform the contract, which would be an extraordinary remedy. Additionally, the court considered the potential harm to D & M (Australia) if the injunction was granted prematurely. The court concluded that the application did not meet the stringent criteria required for an interlocutory injunction, particularly given the need to prevent an effectively mandatory injunction.

The Supreme Court of Queensland dismissed the application with costs awarded to D & M (Australia) Pty Ltd. The decision underscored the high threshold for obtaining interlocutory injunctions, especially in cases involving complex commercial contracts, where the courts are wary of issuing orders that might compel specific performance.

Orders

Orders of the court

Application dismissed with costs

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

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