Dominion Nominees Pty Ltd v Coolmo Pty Ltd
[1999] WASC 199
DOMINION NOMINEES PTY LTD -v- COOLMO PTY LTD & ORS [1999] WASC 199
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 199 | |
| Case No: | CIV:1353/1999 | 7, 8 & 11 OCTOBER 1999 | |
| Coram: | McKECHNIE J | 11/10/99 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Interlocutory injunction granted | ||
| PDF Version |
| Parties: | DOMINION NOMINEES PTY LTD (ACN 067 100 056) COOLMO PTY LTD (ACN 060 038 066) KENNETH ROSS HAWKINS CARMELLA MARIA HAWKINS |
Catchwords: | Interlocutory injunction No new principles Vendor entering back into possession of land Criminal Code s 69 Reasonable apprehension of a breach of the peace Principles |
Legislation: | Criminal Code (WA), s 69 |
Case References: | Legione v Hateley (1983) 152 CLR 406 Prideaux v Director of Public Prosecutions (Victoria) (1987) 163 CLR 483 Stern v McArthur (1988) 165 CLR 489 The Queen v Child (1846) 2 Cox CC 102 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 55 ALJR 107 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing NSW Ltd (1987) 76 ALR 633 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Clarke Equipment Aust Ltd v Covcat Pty Ltd (1987) 71 ALR 367 Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 Glandore Pty Ltd v Elders Finance & Investment Co Ltd (1984) 4 FCR 130 Harvey v McWatters (1948) 49 SR (NSW) 173 HB Homes Pty Ltd v Beer [1986] 2 Qd R 379 Hytrac Conveyors Ltd v Conveyors International Ltd [1983] 1 WLR 44 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 Iron Mountain & Helena Railroad v Johnson (1887) 119 US 608 Locabail International Finance Ltd v Agroexport [1986] 1 WLR 657 London & Blackwall Railway Co v Cross (1886) 31 Ch D 354 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Oraka Pty Ltd v Leda Holdings Pty Ltd (1997) ATPR 41-558 Parker v Camden London Borough [1986] Ch 162 Petera Pty Ltd v EAJ Pty Ltd 7 FCR 375 R v Prideaux [1987] VR 375 Siskina, Owners of the Cargo on board the Siskina v Distos Companies Naviera SA [the Siskina] [1979] AC 210 The Westminster Brymbo Coal & Coke Co v Clayton (1867) 36 LJ Ch 476 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
COOLMO PTY LTD (ACN 060 038 066)
First Defendant
KENNETH ROSS HAWKINS
CARMELLA MARIA HAWKINS
Second Defendants
Catchwords:
Interlocutory injunction - No new principles - Vendor entering back into possession of land - Criminal Code s 69 - Reasonable apprehension of a breach of the peace - Principles
Legislation:
Criminal Code (WA), s 69
(Page 2)
Result:
Interlocutory injunction granted
Representation:
Counsel:
Plaintiff : Ms A J Robertson
First Defendant : No appearance
Second Defendants : Mr N J Mullany
Solicitors:
Plaintiff : Phillips Fox
First Defendant : No appearance
Second Defendants : Lawton Gillon
Case(s) referred to in judgment(s):
Legione v Hateley (1983) 152 CLR 406
Prideaux v Director of Public Prosecutions (Victoria) (1987) 163 CLR 483
Stern v McArthur (1988) 165 CLR 489
The Queen v Child (1846) 2 Cox CC 102
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Case(s) also cited:
Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 55 ALJR 107
American Cyanamid Co v Ethicon Ltd [1975] AC 396
Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing NSW Ltd (1987) 76 ALR 633
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Clarke Equipment Aust Ltd v Covcat Pty Ltd (1987) 71 ALR 367
Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670
Glandore Pty Ltd v Elders Finance & Investment Co Ltd (1984) 4 FCR 130
Harvey v McWatters (1948) 49 SR (NSW) 173
HB Homes Pty Ltd v Beer [1986] 2 Qd R 379
(Page 3)
Hytrac Conveyors Ltd v Conveyors International Ltd [1983] 1 WLR 44
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
Iron Mountain & Helena Railroad v Johnson (1887) 119 US 608
Locabail International Finance Ltd v Agroexport [1986] 1 WLR 657
London & Blackwall Railway Co v Cross (1886) 31 Ch D 354
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Oraka Pty Ltd v Leda Holdings Pty Ltd (1997) ATPR 41-558
Parker v Camden London Borough [1986] Ch 162
Petera Pty Ltd v EAJ Pty Ltd 7 FCR 375
R v Prideaux [1987] VR 375
Siskina, Owners of the Cargo on board the Siskina v Distos Companies Naviera SA [the Siskina] [1979] AC 210
The Westminster Brymbo Coal & Coke Co v Clayton (1867) 36 LJ Ch 476
(Page 4)
- McKECHNIE J:
Introduction
1 In October 1995 the plaintiff company, which is the trustee for the RJ & LM Ogden Family Trust, agreed to purchase from the defendants the Coolgardie Motel and Coolgardie Motor Inne. The purchase was a terms contract with the vendors retaining security of title until settlement in October 2000. I shall hereafter refer to the plaintiff and the Ogdens as the purchasers. I shall refer to the defendants as the vendors.
2 The parties entered into an agreement and a subsequent lease.
3 The agreement provided that for an initial payment of $175,000 on commencement, and payments of $4,160.66 for each month until 1 September 2000 and for the balance of the purchase price to be paid on 1 October 2000. The balance is somewhere in the vicinity of $925,000.
4 Regrettably, relations between the parties have soured. There have been a number of default notices issued by the vendors in respect of the agreement.
5 On Wednesday morning last, 6 October 1999, the vendors purported to re-enter the premises with security guards, change the locks and re-take possession.
6 As a result, Justice Parker, on 6 October 1999, on undertakings of the vendors, made preservation orders until the matter could be argued.
7 I commenced hearing the argument on Thursday 7 October 1999 and continued until late Friday 8 October. On the undertakings again being proffered and accepted, I reserved my decision.
Action is taken by the Purchasers
8 On 26 June 1998, the purchasers served on the first defendant an application for pre-action discovery. After serving letters on the vendors requesting inspection of accounts and receiving no reply, the purchasers obtained an order for discovery and inspection from Master Bredmeyer on 7 December 1998.
9 There was some delay in serving the notice. An appeal against this order was later refused.
(Page 5)
10 On 6 April 1999, the purchasers issued out of this Court a writ with an indorsement of claim against Coolmo Pty Ltd and Mr and Mrs Hawkins.
11 The claim sought damages for negligent misrepresentation as to the profits of the Coolgardie Motor Inne and Coolgardie Motel on the sale thereof by the vendors to the purchasers by the Deed of Agreement dated 10 October 1995.
12 Damages were also sought pursuant to the Trade Practices Act 1974 s 82 for misleading and deceptive conduct.
13 Alternatively, rescission of the agreement for misrepresentation pursuant to the Trade Practices Act s 87 was sought, together with a claim for interest.
14 There appears to have been some difficulty in service of the writ on the vendors. The writ was served on 1 September 1999 and a memorandum of appearance was entered on 7 September 1999.
15 At the first status conference on 5 October 1999, Registrar Dixon made orders, including an order that the plaintiff file and serve a statement of claim by 2 November 1999.
16 In the meantime default judgment for damages to be assessed was entered against the first defendant Coolmo Pty Ltd on 18 August 1999.
Notices of default are issued by the vendors
17 The first notice of default was issued by the vendors on 28 July 1998. More than 50 defaults were identified and the notice sought that they be rectified within 30 days.
18 The purchasers were put on notice that if not rectified, the vendors would exercise their contractual entitlements, including the right to demand the immediate payment of the balance of the purchase price with interest. Those notices were issued pursuant to cl 25 of the agreement which provided as follows:
"1. Notice must be given
Except as otherwise provided in this document
(a) neither the First Vendor nor the Second Vendor is entitled
(Page 6)
- (i) to receive or retain moneys paid by the Purchaser; or
(ii) to take or recover possession on the Assets;
- by reason of the Purchaser's failure to observe or perform the Purchaser's Covenants and
(b) neither the Second Vendor nor the Purchaser may terminate the Sale by reason of the failure of the other to observe or perform an obligation under this Document:
unless
(c) that Party has first given a notice to the other specifying the failure stating that the other must observe or perform the obligations the subject of the notice within TEN (10) business Days from the date of service of the notice and stating that if the obligations are not observed or performed within that time, the Party giving the notice may terminate the Sale, and
(d) the Party receiving the notice fails to observe or perform those obligations within the period stated in that notice."
19 On 22 July 1999, the vendors issued a second notice of default.
20 That notice asserted that the purchasers were in breach of s 2 of the agreement and Condition H, not to seek to remove the restaurant licence from the premises: Condition I, to conduct and maintain the business to the best commercial advantage and fullest potential of the business; Condition K, not to do or permit to be done any act which might cause the restaurant licence to be removed, suspended or cancelled; Condition L, to maintain the assets to the full value as at the date of the agreement; and Condition G, to comply with all local State and Federal statutory conditions and requirements applying to the assets.
21 The notice asserted that Mr Ogden had only three options:
(Page 7)
- "1. You have 30 days from the 23rd July 1999 to re-register the Coolgardie Motor Inne Restaurant licence with the Coolgardie Shire
or
2. Pay all outstanding monies to KR & CM Hawkins and Coolmo Pty Ltd
or
3. Remove Dominion Nominees and J & L Ogden from our establishments by Monday 23 August 1999.
If this breach has not been rectified by 24 August 1999 KR & CM Hawkins Coolmo Pty Ltd will take legal action to terminate the contract and take possession of both our establishments."
22 It should be noted that this second notice was issued after Mr Ogden had been convicted of failing to comply with relevant requirements under the Health Act 1911. This had occurred on 29 June 1999.
23 Furthermore, in April 1997 the purchasers had allowed the eating house licence to be cancelled, apparently at their request. This action puts into jeopardy the associated liquor licence.
24 The third notice of demand was issued on 31 August 1999.
25 This notice in somewhat less emotive terms, specified the faults as:
"(a) causing the Eating House Registration for the Coolgardie Motor Inne to be cancelled in breach of clause 15(2)(g) and/or 15(2)(k) of the agreement and
(b) causing or permitting a person to be convicted of failing to comply with a direction of the Shire of Coolgardie under the Health Act in relation to the conduct of the business associated with the assets in breach of clauses 15(2)(g) and/or 15(2)(i) and/or 15(2)(k) of the Agreement."
26 The notice demanded immediate payment of the balance of the purchase price under the agreement as at 31 August 1999 of $929,166.66 together with interest.
(Page 8)
Fourth notice of default
27 The vendors issued another notice of default on 3 September 1999 demanding again the balance of the purchase price be paid with interest within 28 days and putting the purchasers on notice that if this was not complied with they may elect to exercise their contractual entitlements including the right to repossession.
Response to the notices
28 The purchasers, through their solicitor, responded to the first notice of default on 14 August 1998. It is not necessary to examine in detail that response on this injunctive hearing.
29 More particularly, on 15 September 1999, the purchasers, through their solicitor, responded to the third and fourth notices of demand and default respectively. In the response they denied that they were in default and claimed:
"In any event, the breaches complained of, which are denied, were each caused by the misleading and deceptive conduct, alternatively misrepresentation of Coolmo Pty Ltd and Kenneth and Carmella Hawkins."
30 On 28 September 1999 the vendors, through their solicitors, wrote back to the plaintiffs' solicitors rejecting their contentions and advising that the default period would expire from 5 October 1999.
The events of 6 October 1999
31 In the early morning of 6 October 1999 the vendors entered the motel with security guards and purported to retake possession. The purchasers resisted. Locks were changed. The reservation books for the motel were seized by the vendors. This application for an injunction has resulted.
Is there a serious question to be tried?
32 In summary, the purchasers point to three matters which they say each disclose a serious issue to be tried.
33 Counsel also submits that the action is evolving.
34 In summary the three matters are:
(Page 9)
- 1. The claim for damages or rescission for negligent misrepresentation;
2. The invalidity of the demand notice;
3. A claim for relief against forfeiture for the breaches.
- 1. The claim for damages or rescission for negligent misrepresentation
35 The claim is mounted both at common law and under the Trade Practices Act 1974. Counsel for the defendants submits that the claim is for misrepresentation as to profits and points to the amount apportioned for goodwill in the agreement, a total of $180,000 only.
36 Counsel for the vendors draws considerable comfort from the terms of the agreement and in particular cl 33 which is an entire agreement clause.
37 That clause will represent a considerable hurdle for the plaintiff in its pursuit of damages for negligent misrepresentation at common law.
38 The clause may however have less than full effect if the Trade Practices claim is able to be pursued.
39 The vendors also submit that the claim under the Trade Practices Act 1974 is time barred. This plea may in the end have substance, but at this preliminary stage I am not prepared to rule on it. The claim is arguably not barred: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.
40 In support of the argument counsel for the purchasers referred to the affidavit of Mr Ogden sworn on 17 August 1998 in related proceedings.
41 The vendors argue that there has been delay in the action for negligent misrepresentation. I am unable to agree. There was some considerable delay in effecting service. Once an appearance was entered, a Registrar has commenced case management. A statement of claim is due by 2 November 1999. No doubt the particulars of the claim will then unfold. I note that the plaintiffs have obtained summary judgment against the first defendant. On the present material, I consider that the purchasers have established a serious question to be tried.
2. Invalidity of Default Notice
42 Counsel for the purchasers argues that the notice of default of 3 September 1999 is invalid.
(Page 10)
43 For present purposes, and without the benefit of full argument on the matter, I am unpersuaded that the notice is invalid.
44 The agreement is a standard terms contract.
45 Clause 15(2) sets out conditions that the purchase must meet between possession date and settlement in October 2000.
46 Clause 15(2)(i) provided that the purchasers shall conduct and maintain the business to the best commercial advantage and the fullest potential of the business.
47 It is arguable that the purchasers have not breached cl 15(2)(i). Until evidence is called and the matter is fully ventilated, it is impossible to do more than recognise that the purchasers have raised a serious issue to be tried that they are not in breach.
48 Clause 15(g) provides that the purchasers will comply with current relevant legislation applying to the assets. By the Health Act conviction, the purchasers appear to be in breach of this clause.
49 Clause 15(k) provides that the purchasers will not do or permit to be done, any act which might cause the restaurant licence to be removed, suspended or cancelled.
50 There is in my opinion, prima facie evidence that this clause has been breached. These breaches were specified in the notices of demand of 22 July 1999 and 31 August 1999.
51 The notices issued by the vendors complied with cl 25.
52 Clause 26(2) provides that upon a default by the purchaser, the unpaid portion of the purchase price will immediately become due and payable in full with interest.
53 On the basis of the limited material which has been presented, both by way of evidence and argument, I do not consider that the purchasers have established a serious question to be tried on the invalidity of the notice.
3. Relief against forfeiture
54 The purchasers argue that even if they are in breach of the agreement, the breach is not a breach of a primary obligation and they are continuing to make payment. The vendors' position remains protected.
(Page 11)
55 Therefore, it is asserted, equity will intervene to give relief against full forfeiture.
56 The purchasers point to the fact that they have paid a significant amount of money. The exact amount is in dispute.
57 The amount already paid includes $120,000 which was paid by way of deposit.
58 Taking a conservative view, the amount so far paid, excluding the deposit would seem to be around $460,000.
59 The vendors point to the lease agreement entered into for a period before the option to purchase and contrast the amount payable for rent under the lease compared with the lesser amount payable under that agreement.
60 Be that as it may, it is clear that under the agreement the purchasers have an equity in the business beyond that of a lessee.
61 In Stern v McArthur (1988) 165 CLR 489 the High Court considered the position of a purchaser who had been in default under a terms contract. The court divided with Mason CJ and Brennan J dissenting.
62 The decision of Legione v Hateley (1983) 152 CLR 406 was considered along with other authorities.
63 In their joint judgment, Deane and Dawson JJ, after noting that great weight will be given to the bargain which the parties have made for themselves and discussing circumstances where equity traditionally granted relief against forfeiture, said at 527 - 528:
"… the circumstances which will suffice to support its exercise despite the breach of an essential term are not confined. In particular, it is not necessary, in our view, for the party claiming relief to show unconscionable or unconscientious behaviour of an exceptional kind."
64 Gaudron J, who agreed that the appeal should be dismissed, noted that Legione v Hateley cannot be taken to have decided that specific performance can be granted to a purchaser in breach of an essential term only if the actions of the vendor amount to unconscionable conduct. Gaudron J then focused attention on the actions of the purchaser before concluding at 541 - 542:
(Page 12)
- "There remains the further question whether the conduct of the purchaser has been such as to effect a disentitlement from the grant of specific performance. In general terms that conduct will fall for assessment by reference to the breach giving rise to the right to rescind, including, (as stated in Legione) whether the breach was wilful and serious or inadvertent and trivial."
65 Leaving aside the question whether cl 15(2)(i) has been breached on the basis that it has arguably not been breached, the other breaches have the potential to cause damage to the vendor.
66 Whether they have done so at this stage is unclear.
67 The conviction has happened. The liquor licence is in jeopardy. However, Mr Ogden asserts on affidavit that problems with the kitchen will be remedied shortly and that when the restaurant is re-opened, the liquor licence will be renewed. The video in a small way supports the fact that work is being done. The defendants have provided an opinion from someone within the Shire of Coolgardie, apparently the financial controller, which disputes Mr Ogden's optimistic assessment.
68 In my judgment, the plaintiffs have at this stage established a serious issue, namely that at trial they will be able to establish that notwithstanding their breaches of some conditions, it would be unjust to visit upon them the legal consequences of the breaches. There is a serious issue whether equity would relieve the purchasers from forfeiture.
69 This serious issue being established, if the purchasers are ultimately successful, damages will not be an adequate remedy.
The entry into possession
70 The agreement by cl 26(4)(c) provides the vendors may take or recover possession of the stock and the assets in the event that the purchasers are in default.
71 In apparent exercise of this right, the vendors proceeded to retake possession on 6 October 1999. They were accompanied by security guards.
72 I have been given conflicting accounts as to the manner of repossession. However, I have also been provided by the defendants with a video tape.
(Page 13)
73 The Criminal Code s 69 provides:
"Any person who, in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, enters on land which is in the actual and peaceable possession of another is guilty of a misdemeanour. …
It is immaterial whether he is entitled to enter on the land or not."
74 It is not disputed that the vendors entered in order to take possession of the land: see The Queen v Child (1846) 2 Cox CC 102; Prideaux v Director of Public Prosecutions (Victoria) (1987) 163 CLR 483.
75 The Criminal Code s 69, as drafted by Sir Samuel Griffith, was intended to replace a line of statutes which began in the reign of Richard II.
76 The intent of the Criminal Code s 69 is the preservation of the peace. Even a person with a legitimate claim over land may not enter to enforce their claim if there is a risk of violence or a breach of the peace.
77 The section provides an objective standard to be judged not from the point of view of the enterer, but from the viewpoint of a reasonable bystander. I do not consider that the breach of the peace is limited to acts of the enterer. It may be that the manner of entry may cause a person in possession to breach the peace.
78 The intent of the section is to promote public safety. The law provides alternatives to self help in cases of doubt. A writ of possession may be invoked.
79 All the known circumstances should be taken into account when assessing whether the entry was likely to either provoke a breach of the peace or cause a reasonable apprehension of a breach of the peace.
80 In the present case the background circumstances include the following:
1. The purchasers have taken action against the vendors for negligent misrepresentation.
2. The action had been before a Registrar on 5 October 1999. Timetabling orders had been made. No hint was given that possession would be reclaimed.
(Page 14)
- 3. A notice of default had been served. The purchasers through their solicitors had strongly disputed the validity of the notice even though the vendors' solicitors disagreed.
4. No advance warning was given to the purchasers.
5. The purchasers live on the premises with presumably their possessions.
6. The principal business of the purchasers from which they draw their income is the motel business.
81 The actual circumstances of the retaking of possession are obviously relevant. I have watched the video. I am unconcerned with what it does not show. Notably, no police assistance was requested in advance by the vendors.
82 Mrs Hawkins says to a large security guard, standing adjacent to the reception counter behind which Mrs Ogden is dialling on a telephone:
"Please remove her."
Mrs Ogden: "I'm just trying to ring my husband up."
Mrs Hawkins: "I don't care. You're terminated. You're out … out … get your dog, your … person and out."
83 Mrs Ogden then departs to get her husband. While she is absent instructions are given to the guard:
"Guard this door here. Don't let anyone in or out."
84 Mr Ogden arrives by vehicle. He says: "What's happened? You are all trespassing. Get out."
85 Both of the purchasers make reference to the need for a court order.
86 Mrs Ogden then hits someone, probably Mrs Hawkins. The security guard says: "It's illegal to use any force." Presumably the guard was unaware of the provisions of the Criminal Code s 255 when he proffered that advice.
87 Mrs Ogden is restrained by a security guard.
88 Mr Ogden says: "You fuck off." The security guard then manhandles Mr Ogden. During these events Mrs Hawkins is shouting:
(Page 15)
- "Out of the property now. Off my property now" and "Take your husband, your dog and your mother and out."
89 When Mrs Ogden attempts to enter a building and says she wants her personal belongings she is apparently restrained.
90 Soon afterwards, two security guards forcibly eject Mr Ogden from the same building.
91 The events which take place in the open are in the yard of a motel, near to a main road.
92 I am not making any final judgment as to the lawfulness of the actions of the vendors. My enquiry is necessarily limited to ascertaining in a preliminary way such facts as are necessary to decide whether to exercise jurisdiction to grant an injunction.
93 For that limited purpose I reach the conclusion that the manner of entry in all the circumstances I have outlined, was highly likely to cause a breach of the peace. My conclusion is that the manner of entry into possession was unlawful.
94 This conclusion is a factor to be weighed in deciding whether to grant an injunction.
Balance of convenience
95 As previously expressed, I do not consider that damages would be a sufficient remedy to the purchasers if they were ultimately successful.
96 At this stage the loss which may flow to the vendors from the breaches of the contract is more potential than actual.
97 I consider the balance of convenience at present favours restoration of the purchasers back into the position before last Wednesday, 6 October 1999, to enable them time to complete the work to the kitchen and obtain a liquor licence. The purchasers continue to proffer the monthly repayments.
98 This is an application for an interlocutory injunction. If the loss to the vendors does become significant and such that damages will not be an adequate remedy then, at a future time, the vendors may apply for a discharge of the injunction or an order for possession.
(Page 16)
99 However, for now the balance of convenience at this stage favours the purchasers.
Undertaking as to damages
100 The plaintiff is a $2 company. Originally an undertaking, not under seal, was proffered by the company. Subsequently a sealed undertaking was proffered.
101 The prospect that an injunction would be granted on the undertaking of such a company with few, if any, retained assets is so remote as to be immeasurable. Almost always the court will require an undertaking from the persons who stand behind the plaintiff and are in reality the true litigants.
102 I have received undertakings from Mr and Mrs Ogden. Complaint is made about the adequacy of the undertakings.
103 However, I am of the opinion that, in all the circumstances, the undertakings are sufficient. Besides, the assets of the purchasers were apparently sufficient for the vendors to accept them as guarantors under the agreement.
Conclusion
104 I have been conscious that a volatile and unsatisfactory situation has developed in Coolgardie. Therefore I have dealt with this matter urgently.
105 Consequently, I have not addressed in these reasons all the arguments submitted by the vendors as to why an injunction should not issue.
106 Suffice it to say that none of them has carried sufficient persuasion at this time to cause me to refuse an injunction.
107 I do however note the vendors' concerns about future profitability. These concerns are disputed in material put forward by the purchasers. Without a full trial it is not possible to resolve those matters.
108 The act of repossession by the vendors has taken place against a background where the purchasers had already commenced action in this Court over the agreement.
(Page 17)
109 In my judgment, the interests of justice, including the need for the Court to protect its processes, require the grant of injunction to restore the parties to the position prior to the vendors' action to retake possession on 6 October 1999.
A comment to the parties
110 I would add this final comment directed to the parties. This is, or ought to be, nothing more than a commercial dispute.
111 On my present very limited snapshot of the issues, I have formed the view that there is something to be said for the contentions of both parties.
112 Litigation is very expensive and the outcome can seldom be predicted with any certainty.
113 There are rarely any true winners in a case.
114 Naturally, some heat and emotion has entered into the relations between the two sides. It would be well to consider the commercial realities of continuing this litigation. I strongly urge both parties to consider mediation.
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