Doradel Holdings Pty Ltd v Tiger Kart Club Incorporated - [2003] WASC 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DORADEL HOLDINGS PTY LTD -v- TIGER KART CLUB INCORPORATED [2003] WASC 221

CORAM: JOHNSON J

HEARD: 3 NOVEMBER 2003

DELIVERED : 10 NOVEMBER 2003

FILE NO/S: CIV 2193 of 2003

BETWEEN: DORADEL HOLDINGS PTY LTD
Plaintiff
AND
TIGER KART CLUB INCORPORATED
Respondent

Catchwords:

Interlocutory injunction - Lease agreement - Turns on own facts

Legislation:

Nil

Result:

Application for interlocutory injunction granted

Category: B

Representation:

Counsel:

Plaintiff: Mr C P Stevenson
Respondent: Mr S M Davies

Solicitors:

Plaintiff: Fearis Salter Power Shervington
Respondent: Arns & Associates

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

A v Hayden (1984) 56 ALR 73
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
American Cyanimid Co v Ethicon Ltd (1975) AC 396
Bava Holdings Pty Ltd v Pando Holdings Pty Ltd, (1998) NSW Conv R 55‑862
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Cayne v Global Natural Resources [1984] 1 All ER 225
Commonwealth v Antonio Giorgio Pty Ltd (1986) 67 ALR 244
Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349
Films Rover v Cannon Film Sales Ltd [1987] 1 WLR 670
McCaul ATC (Aust) Pty Ltd v Pitt Club Limited (1957) 76 WN (NSW) 72
Mott v Mount Edon Gold Mines (Australia) Ltd (1994) 12 ACLC 319
OD Transport Pty Ltd v WA Government Railways Commission (1986) 71 ALR 190
Phillips Fox (A Firm) v Westgold Resources NL & Ors [2000] WASCA 85
Photo Art & Sound (Cremorne) Pty Ltd v Cremorne Centre Pty Ltd (1987) 76 ANZ Conv R 347
Regent's Pty Ltd v Subaru (Aust) Pty Ltd (1996) ATPR 41‑463
State Transport Authority v Apex Quarries Ltd [1988] VR 187
Total Marine Services Pty Ltd v Waller and Anor [200] WASC 2000
Walton Stores (Interstate) Ltd v Maher (1986) 5 NSWLR 407
Waltons Stores(Interstate) Ltd (1988) 164 CLR 387

Case(s) also cited:

Nil

JOHNSON J: The plaintiff, Doradel Holdings Pty Ltd, seeks an interlocutory injunction restraining the defendant, the Tiger Kart Club (Incorporated), from interfering with the plaintiff's access to the property known as the Wanneroo Kart Racing Circuit ("the premises") and its buildings and associated facilities pending judgment in the action.
The precise terms of the orders sought are as follows:
1.The interim injunction granted by his Honour Pullin J on 3 October 2003 as extended on 8 October 2003 and 3 November 2003 be further extended to trial or further order.
2.The defendant be restrained and an injunction be granted restraining the Defendant by its servants, agents and employees from interfering with the plaintiff's access to the property known as the Wanneroo Kart Racing Circuit, buildings and associated facilities.
The plaintiff conducts a commercial kart hire business from the premises and has done so since 1990. On 3 October 2003 the plaintiff's staff were locked out of the premises when they arrived for work. The plaintiff's workshop and store‑yard where the karts for commercial hire are kept were also padlocked. A security guard in attendance advised that the locks had been changed by the defendant. This action was taken without notice to the plaintiff. On the same day the plaintiff sought, and was granted, an interim injunction restraining the defendant from interfering with the plaintiff's access to the premises.
The premises are leased by the defendant from the City of Wanneroo ("the Head Lease"). The defendant is a club incorporated pursuant to the Associations Incorporation Act 1987 and carries out its activities in accordance with its written Constitution. The defendant exists to facilitate the sport of sprint kart racing in Western Australia. The defendant occupies two international class raceways; one at Wanneroo and one at Cockburn. The plaintiff leases both premises. The plaintiff has carried on a business at the Cockburn premises since 1985. The plaintiff has carried on a business at the Wanneroo premises since 1990. During a period of approximately four years between the commencement of the plaintiff's business at the Wanneroo premises and the entry into a written lease in 1994, the plaintiff carried out its business pursuant to a verbal lease agreement with the defendant.
The club has approximately 320 members and its management is structured in the following way:
(a)There is a primary committee which constitute the president, two vice‑presidents and four ordinary committee members. There is also a treasurer and administrator. Those two positions do not hold voting rights.
(b)There are then two sub‑committees; one to manage the Wanneroo raceway and one to manage the Cockburn raceway.
The Head Lease over the premises was entered into on 1 December 1988. The purpose of the Head Lease was to provide a facility for the racing of karts under controlled and safe circumstances. On 14 October 1994 the plaintiff entered into a sublease agreement with the defendant and the City of Wanneroo which provided for rental payments of $1260 per month and an annual rent review (“the main sublease”). Clause 2.1 of the main sublease sets out its term. The lease commenced on 1 January 1994 to terminate on 31 December 96. Clause 2.1 provides for renewal of the lease in the following terms:
"… if the Lessee shall be desirous of continuing the tenancy hereby created for the further term or terms set out in Item 4 of the Schedule hereto the Lessee shall at least three (3) calendar months but not more than six (6) calendar months prior to the end of the term give to the Lessor written notice of such desire ...".
Item 4 allows for only one option to renew and extend the lease for a further term of five years, terminating on 31 December 2001. The lease also requires the lessee to have and keep in force relevant insurance policies: cl 5.1.
Clause 9.3 provides that, in the event that the lessee continues to occupy the leased premises beyond the expiration of the term with the consent of the lessor, he shall do so as a monthly tenant, such tenancy being determinable by one month's written notice by either party.
Clause 9.10 of the sublease requires the lessor to convene a Lease Agreement Committee ("the Lease Committee") to be responsible for commercial dealings between the lessor and the lessee. The clause further provides that the Lease Committee shall be taken and understood by the lessee to represent the lessor in dealings of and concerning the lease. The membership of the first Lease Committee is set out in the clause. Any change in the members, except for the position of the President, must be with the mutual consent of the lessor and lessee.
The reference in the sublease to the Lease Committee is consistent with rule 59 of the defendant's Constitution which provides that:
"Any lease entered into by the Club shall be handled by a Sub‑Committee of five (5) persons who shall remain the Club representatives for the term of the lease. These persons names are to be incorporated in the lease agreement."
On 12 March 1997 the parties and the City of Wanneroo executed a document described as an Annexure to Main Sublease ("the second sublease). Item 1 of the second sublease provides for an extension of lease commencing 1 January 1997 and terminating on 31 December 2001. Item 2 provides to the lessee an option to renew and extend the lease for a further term of five years from the date of termination in item 1 and terminating on 31 December 2006. Item 3 provides for the rate of annual rent.
On 4 July 2003 the plaintiff was served with a Notice of Determination of the main sublease ("the Notice of Determination") confirming that the term of the main sublease had expired on 31 December 2001 and that the plaintiff's tenancy under the main sublease was on a periodic basis since 1 January 2002. The plaintiff was next served with a Notice to Cease Operation and Take Repossession of Subleased Premises ("the Notice to Cease Operation") dated 22 August 2003. The basis of the Notice to Cease Operation is stated to be the failure to pay rent and the failure to provide evidence of a current insurance policy.
On 12 September 2003 the defendant's solicitors wrote to the plaintiff acknowledging that all required insurances under the determined sublease had been paid, but noting that rental and other payments were still in arrears. Nevertheless, a new sublease for the premises was enclosed for execution. The plaintiff declined to execute it and negotiations between the parties have not resulted in the execution of a new lease agreement.
In view of the content of cl 9.10 of the main sublease and rule 59 of the defendant's Constitution, it is significant to note that neither the Notice to Cease Operation nor the solicitor's letter identifies the entity which made the decision to take such action.
The plaintiff contends that it has a valid sublease for the purpose of conducting its business at the premises. It is clear from the above summary of events that the defendant disputes that there exists a valid sublease.
In his affidavits in support of the injunction application Michael Sully, a director of the plaintiff, alleges that from 30 June 2001 through to 30 September 2001 (being the period between 6 months and 3 months prior to the expiration of the lease) he verbally informed the defendant's Leasing Committee that the plaintiff would extend its lease. Mr Sully provides no details of his actions in so informing the Leasing Committee. He neither nominates the people he advised nor the occasion or occasions on which he did so. The consequence of that omission is that the defendant is unable to properly respond to this assertion.
Since that time the plaintiff has remained in possession of the premises conducting its commercial kart hire business. Although at times it has been in arrears in the payment of rent, at the time this application was heard all outstanding rent had been paid and all necessary insurances had been provided.
The plaintiff alleges that the defendant desires the plaintiff to enter into a new lease in terms that are significantly more favourable to the defendant, in particular, at a higher rental.
According to the affidavit evidence of Gregory Truscott, the defendant's current President, at no time between 30 June 2001 and 30 September 2001, or at all, did the defendant give to the club any written notice pursuant to the option to renew. Mr Truscott disputes that during that period Mr Sully advised the Leasing Committee that he would extend the lease. According to Mr Truscott, for the whole of that period he was a member of the Leasing Committee and attended all of its meetings.
Mr Truscott further deposes that in the early part of 2002 there were three Lease Committee meetings, all of which he attended. At the first of these he raised with Mr Sully the fact that the lease had expired and that they needed to negotiate a new lease. According to Mr Truscott, Mr Sully's response was to say that he had a lease. Mr Truscott then advised Mr Sully that he had not exercised the option so a new lease was required. Mr Sully maintained that he had a lease. Mr Truscott alleges that the same conversation occurred at the next two Lease Committee meetings.
Mr Truscott asserts in his affidavit that the Lease Committee has now been disbanded as a consequence of a resolution put to the defendant's members and has not operated since May 2002. From that time Mr Truscott has been in contact with Mr Sully with a view to negotiating a new lease. Mr Truscott alleges that the first occasion on which he became aware of an allegation that Mr Sully had verbally exercised the option to renew the lease was when he read Mr Sully's affidavit in these proceedings.
According to Mr Truscott, the defendant has had an expression of interest from a party interested in taking out a sublease of the Wanneroo Circuit on the following broad terms:
(a)The term of the sublease would be until the expiry of the defendant's Head Lease, being 30 November 2009;
(b)A higher level of rent than the defendant has been paying; and
(c)Better access arrangements to the circuit for club members.
In his affidavit in reply, Mr Sully disputes that the Lease Committee has been disbanded and states that he is unaware of any such resolution being put to the defendant's members. It is submitted that a resolution of this type would have to have been passed by way of special resolution at a general meeting. Mr Sully asserts, again without any particularity, that the members of the Lease Committee, other than Mr Truscott consider that the Lease Committee remains valid. It is further alleged that two meetings of the Lease Committee were held on 6 and 16 October 2003.
In relation to the extension of the lease, Mr Sully explains that no written notice was provided by the plaintiff or insisted upon by the defendant when the option under the main sublease was exercised. Further, the extension document was prepared and executed after the date of expiry of the initial term under the original sublease. On the basis of the long‑established relationship between himself and the defendant spanning some 23 years and in light of his experience in relation to the first extension, Mr Sully alleges that he understood the second extension of the sublease was to be carried out in the same way as the first; without formality and by verbally communicating the plaintiff's intentions to the Lease Committee.
Between January and June 2002 Mr Sully did not attend any meetings of the Lease Committee. He is unaware as to whether any were held. He did, however, attend the Lease Committee meeting in June 2002. He does not dispute the conversation related by Mr Truscott.
In support of his assertion that there has been a verbal exercise of the option to renew the defendant's lease, Mr Sully refers to various correspondence from the defendant's administrator, which include requests to the plaintiff for use of the track and requests for certificates of currency for the necessary insurance policies. However, in my view, this correspondence is equally referable to the fact that the plaintiff was entitled to continue as a monthly tenant until termination of the tenancy by written notice.
Mr Sully also maintains that in the period prior to 31 December 2001 he had numerous discussions with members of the Lease Committee where he made it clear that the plaintiff wished to extend its sublease.
Mr Sully agrees that he has been involved with negotiations for a new lease, but maintains that he did so without prejudice to the rights which he claims he has under the sublease which was verbally renewed.
In a further affidavit Mr Truscott explains his reference to the Lease Committee having been disbanded. Mr Truscott states that there was a meeting of the Committee of Management of the club held on 7 May 2002 at which he reported back to the Committee an acknowledgment on the part of the Lease Committee that it no longer existed due to there being no lease. In those minutes he was referring to a Lease Committee meeting that took place on 17 April 2002 which acknowledged that fact. A meeting of club members to make changes to the club's constitution was held on 4 July 2001. At that meeting a resolution was passed disbanding the Lease Committee and reconfiguring the Committee of Management which would be responsible, inter alia, for all issues relating to leases. Shortly after the meeting an application for amendment to the constitution was lodged with the Ministry of Fair Trading. It was not until late 2002 that Mr Truscott was contacted by a representative of the Ministry of Fair Trading who informed him that the decision had to be formally ratified at the 2003 Annual General Meeting.
It is against this factual background that the application for the grant of an interlocutory injunction falls to be considered. It is apparent that there is considerable dispute about whether there was a verbal exercise of the option to renew. There is also an issue as to the existence of the Lease Committee at a particular point in time. It is not for the Court on an application of this type to resolve factual disputes between the parties and I make no attempt to do so.
An applicant for an interlocutory injunction must demonstrate that:
(a)there is a serious question to be tried;
(b)the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation; and
(c)the balance of convenience favours the granting of the injunction: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153; ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 217 ‑ 218, per Gleeson CJ.
In considering the second of those factors, the test is not simply whether damages will provide the plaintiff with an adequate remedy but, rather, whether it would be just, in all the circumstances, to confine the plaintiff to that remedy: Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349; State Transport Authority v Apex Quarries Ltd [1988] VR 187.
The factors referred to by the High Court in Castlemaine Tooheys are not independent of each other. In considering whether to grant an interlocutory injunction the Court must have regard to the strength of the applicant's claim: Regent's Pty Ltd v Subaru (Aust) Pty Ltd (1996) ATPR 41‑463 at 41‑628; OD Transport Pty Ltd v WA Government Railways Commission (1986) 71 ALR 190 at 193.
The third of these factors is also referred to at the risk of doing an injustice: per May LJ in Cayne v Global Natural Resources [1984] 1 All ER 225 at 237. It is a fundamental principle in exercising the discretion to grant injunctive relief that the court should take whichever course appears to carry the lower risk of injustice: Films Rover v Cannon Film Sales Ltd [1987] 1 WLR 670 at 680; Total Marine Services Pty Ltd v Waller and Anor [2002] WASC 8, per Roberts‑Smith J at [72].
This case was argued before me on the basis that the two issues for resolution were whether there was a serious question to be tried and whether the balance of convenience favours the granting of the injunction. I do not, in any event, see the second of the factors in Castlemaine Tooheys to be an impediment to the granting of the injunction in the circumstances of this case.
Counsel for the plaintiff identified three triable issues:
(1)The proper construction of the option clause and whether it must be in writing;
(2)Estoppel by conduct; and
(3)Whether the action to determine the lease was lawfully taken in accordance with the terms of the lease and in accordance with the defendant's constitution.
In relation to the first issue, counsel for the plaintiff points out that the option to renew under the original sublease was not exercised in accordance with cl 2.1. The second sublease came into existence some time after the original sublease expired. It was submitted that the extension document itself was silent as to the manner in which the option to extend the sublease for a further term of five years from 31 December 2001 had to be exercised. The issue then arises as to what are the terms of the second sublease and, in particular, the renewal requirements. Presumably, the proposition being put is that cl 2.1 of the main sublease does not apply and written notice is not required.
In my view, the second sublease is obviously a document which was not intended to stand alone and would prove exceedingly difficult to construct if it did. It is entitled as an annexure to the main sublease and describes itself as providing for an extension of lease. In my view, any argument that there was a wholly separate agreement which contains no limitation on the manner in which the option to renew may be exercised is weak indeed. I would not be prepared to grant injunctive relief if that were the only issue to be tried.
Although the plaintiff has not descended to any particularity as to the verbal notification, the inference to be drawn was that it was made to the members of the Lease Committee at one or more meetings attended by Mr Sully. However, even if it were more detailed and the defendant was able to traverse the allegations, the only result would be a factual dispute requiring resolution. For the purpose of determining whether it is appropriate to grant injunctive relief, I am prepared to accept that verbal notice was indeed given.

On behalf of the defendant it is argued that oral notice would not be sufficient notice. In support of that proposition, the defendant cites Bava Holdings Pty Ltd v Pando Holdings Pty Ltd, (1998) NSW Conv R 55‑862 at 56‑760 and McCaul (Aust) Pty Ltd v Pitt Club Limited (1957) 59 SR 122.
As I understand the plaintiff's argument, it is accepted that, as a general rule and traditionally, an option must be exercised in strict compliance with the requirements set out for such exercise; that is, strictly within the time and in the form stipulated with the grantee having met any conditions precedent imposed: Bava HoldingsPty Ltdv Pando Holdings Pty Ltd at 56‑760. Courts will not find that an option has been exercised where there has been non‑compliance with obligations which the parties have agreed must be complied with to make the notice effective: Phillips Fox (A Firm) v Westgold Resources NL & Ors [2000] WASCA 85 at par 50, per White J.
However, the strict application of that principle does not preclude a party claiming that the other party is estopped from denying that there has been non‑compliance with the terms of the option. The plaintiff relies on the authority of Photo Art & Sound (Cremorne) Pty Ltd v Cremorne Centre Pty Ltd (1987) 76 ANZ Conv R 347 at 351 and Walton Stores (Interstate) Ltd v Maher (1986) 5 NSWLR 407 as authority for the proposition that a plaintiff may assert the existence of a contract as part of a claim against a defendant and succeed in obtaining judgment enforcing such a contract notwithstanding that it does not in fact exist, because the plaintiff is estopped from denying the existence of the contract. On appeal, the High Court did not confirm or reject the views of the Court of Appeal on this point: Waltons Stores(Interstate) Ltd (1988) 164 CLR 387.
The facts in Photo Art & Sound were that the lessee verbally advised the lessor's representative within the required time that he wished to extend his lease. He was advised by the representative that he need not at that time put his exercise of the option to renew in writing because the lease did not expire until a much later time. On the basis of that assurance he provided a written exercise of the option at a time outside that required under the lease. In the intervening period, relying on an assurance from another of the defendant's representatives that his lease would be renewed, the plaintiff incurred expense in adding to the fittings in the leased premises.
It can be seen from this recitation of the facts that there are a number of differences between the factual circumstances there applicable and that which affect the plaintiff in this case. For one, in Photo Art & Sound the lessee was expressly told that he did not need to provide a written exercise of the option until a time outside that required and, further, he had acted to his financial detriment.
Counsel for the defendant submits that the correspondence evidence, and references to discussions with Lease Committee members "in the period prior to 31 December 2001", cannot give rise to an estoppel because by 30 September the period within which the option was to be exercised had concluded and there was, therefore, no detriment to the plaintiff arising from the actions of the defendant. Certainly, if the only such conversation occurred between 1 October to 31 December, that would be the case. However, as I have already noted, I am prepared to accept, solely for the purposes of this application, Mr Sully's assertion in his first affidavit, that he verbally informed the Lease Committee of his intention to renew the lease in the period from 30 June to 30 September 2001. In considering the issue of estoppel, it is significant to note that there has been no correspondence or other evidence adduced to the effect that a request was made, or reminder given, for a written exercise of the option.
It is further submitted on behalf of the defendant that the material put before the Court does not meet the criteria for an estoppel; in particular it fails to meet the requirement that the party acted to his or her detriment in relying on the conduct of the plaintiff. Contrary to the position in Photo Art & Sound, there is no evidence that the plaintiff acted to his detriment by incurring costs. However, the detriment need not be financial. The detriment can be the failure to provide written notice, having been advised that such was not required or having been led to believe by other conduct that such was not required: see Commonwealth v Antonio Giorgio Pty Ltd (1986) 67 ALR 244 at 259 and Walton Stores, per Brennan J, at 428 ‑ 429. It is the case that the evidence of the circumstances surrounding the giving of the verbal advice is scant. However, in my view, the issue estoppel is arguable: see also Bava Holdings Pty Ltd v Pando Holdings Pty Ltd, above.
The final issue raised on the plaintiff's behalf is the validity of the termination of what is said to be a valid lease by reason of the holding over clause of the main sublease. Even the defendant acknowledges this to be the nature of the plaintiff's interest in the premises prior to the notice to determine. The issue of the status of the Lease Committee cannot, therefore, be brushed aside as the mere distraction described by counsel for the defendant and constitutes, in my view, a serious question to be tried
It is submitted that the fact that Mr Sully concedes his involvement in negotiating a new lease does not detract from his claim. He maintains that the negotiations have been entered into without prejudice to his position with respect to what he alleges is an existing lease. In my view, Mr Sully's participation in negotiations for a new lease is not necessarily inconsistent with the position taken by him in this application and I do not consider it to detract from his claim for injunctive relief.
Counsel for the defendant submits that the plaintiffs are required to establish more than an arguable case; they must satisfy the Court that there is some probability that at the end of the day they will be entitled to relief. The test in Castlemaine Tooheys Ltd v South Australia, at 153, is that there is a "serious question to be tried". In American Cyanimid Co v Ethicon Ltd (1975) AC 396 there is a suggestion that the phrase "serious question to be tried" means no more than that the claim is not frivolous or vexatious (per Lord Diplock at 407). In Mott v Mount Edon Gold Mines (Australia) Ltd (1994) 12 ACLC 319, at 321, Owen J observed that there has been considerable debate as to the meaning of the expression "serious question to be tried" and expressed a reticence to attempt a more intricate definition. His Honour referred to the words of Dawson J in A v Hayden (1984) 56 ALR 73, at 79:
"… a court ought not to be misled by an overstrict application of verbal formulae to depart from its primary duty to do complete justice in the case."
Having considered the various submissions, I am satisfied that there is a serious question to be tried.
The defendant submits that it is favoured by the balance of convenience. It is said that the plaintiff's case is weak and that, if the injunctions is granted, it is unlikely that a trial will take place for in excess of 12 months. That is said to cause significant prejudice to the defendant because it would be kept out of its property and also because of the expression of interest received from a party which is said to be interested in taking out a sublease on terms favourable to the defendant.
The plaintiff raises the legitimate concern that the defendant has not adduced any evidence of its ability, if any, to pay damages to the plaintiff for the loss of not operating its business from now to trial if the defendant is found liable for that loss. It is a not for profit organisation, although I am advised by counsel that it is currently in funds. The plaintiff further submits that the balance of convenience plainly rests with it because if the extension is not granted, the plaintiff will not be able to continue to operate its business and provide employment to permanent and casual staff. It is said that there is no real prejudice to the defendant if the injunction is extended. There is no suggestion made that the defendant will be prevented from exercising the access provided for in the sublease and the correspondence of the making of arrangements for use of the track supports that conclusion. The only matter relied upon by the defendant is an alleged expression of interest from an unidentified party to sublease the premises and therefore the possibility of receiving an increased rent. In my view, the detriment to the defendant of being unable to pursue this expression of interest is insufficiently certain to substantially influence the balance of convenience.
The defendant maintains that the plaintiff has failed to provide adequate evidence of the loss that it will suffer and averts to the fact that, as it operates the Cockburn premises, its operations could be transferred there. Whilst I agree that the evidence adduced in this regard is minimal, in my view, it is obvious that the plaintiff will lose the ability to operate its business north of the river and that there will be an inevitable commercial loss as not everyone would be prepared to travel to Cockburn to participate in the activity of go‑karting. However, the greater detriment will arise in the event that in the absence of injunctive relief the defendant will enter into a lease agreement with a third party, thereby precluding the plaintiff from resuming operation of the business even if it succeeds at trial. I consider this factor to firmly tip the balance of convenience in favour of the plaintiff.
The plaintiff maintains that justice requires that the status quo be preserved. Having considered the various submissions I am satisfied that there is a serious question to be tried. Having reached that conclusion, I have no hesitation in concluding that the balance of convenience firmly favours the plaintiff and the preservation of the status quo.
For the reasons given, I propose to grant interlocutory injunctive relief in the following terms.
Subject to the filing of an undertaking in the usual terms by the plaintiff, in addition to the undertaking already provided by Michael Sully, and conditional upon the plaintiff making all rental payments on time –
1.The interim injunction granted by his Honour Pullin J on 3 October 2003 as extended on 8 October 2003 and 3 November 2003 be further extended to trial or further order.
2.The defendant be restrained and an injunction be granted restraining the defendant by its servants, agents and employees from interfering with the plaintiff's access to the property known as the Wanneroo Kart Racing Circuit, buildings and associated facilities.