DOMINION NOMINEES PTY LTD -v- COOLMO PTY LTD & ORS [1999] WASC 199

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 199
Case No:	CIV:1353/1999	Heard:	7, 8 & 11 OCTOBER 1999
Coram:	McKECHNIE J	Delivered:	11/10/99
No of pages:	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

CITATION : DOMINION NOMINEES PTY LTD -v- COOLMO PTY LTD & ORS [1999] WASC 199 CORAM : McKECHNIE J HEARD : 7, 8 & 11 OCTOBER 1999 DELIVERED : 11 OCTOBER 1999 FILE NO/S : CIV 1353 of 1999 BETWEEN : DOMINION NOMINEES PTY LTD (ACN 067 100 056)

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…

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: [1999] WASC 199
Decision Date

CaseChat Overview and Summary

Dominion Nominees Pty Ltd sought an interlocutory injunction against Coolmo Pty Ltd and others for their unlawful re-entry into possession of property which Dominion had under a terms contract. The Supreme Court of Western Australia was required to decide whether Dominion had established a serious question to be tried and whether the balance of convenience favoured Dominion. The Court held that Dominion had established a serious question to be tried on several matters, including the claim for damages or rescission for negligent misrepresentation, the invalidity of the default notice, and a claim for relief against forfeiture for the breaches. The Court also held that the balance of convenience favoured Dominion, as damages would not be an adequate remedy if they were ultimately successful, and the loss to the vendors from the breaches of the contract was more potential than actual. The Court granted the interlocutory injunction to restore the parties to the position prior to the vendors' action to retake possession on 6 October 1999. The Court urged both parties to consider mediation to resolve the commercial dispute.

Orders