Dridi v Fillmore
[2000] NSWSC 175
•4 February 2000
CITATION: Dridi v Fillmore [2000] NSWSC 175 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 1101/00 HEARING DATE(S): 3 and 4 February 2000 JUDGMENT DATE: 4 February 2000 PARTIES :
Daniel Mourredine Dridi (P)
Donald Russell Fillmore (D1)
Warren John Marx (D2)
Hugh Hunter Jamieson (D3)JUDGMENT OF: Hamilton J
COUNSEL : Ms S Dowling (P)
D Perrignon (D1)
D L Davies SC (D2 & 3)SOLICITORS: C P White & Hetherington (P)
Gregory Falk & Associates (D1)
Makinson & d'Apice (D2 & 3)CATCHWORDS: EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Balance of convenience - Propriety of attempting to forecast ultimate result - Relevance of strength or weakness of plaintiff's case. LEGISLATION CITED: Property (Relationships) Act 1984
Supreme Court Rules, Part 60 r 1A(1)(c), Schedule D Part 3 cl 4(a)CASES CITED: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Muschinski v Dodds (1985) 160 CLR 583
Jacobs' Law of Trusts in Australia (6th Ed, 1997), [1310] [1311]
Meagher, Gummow & Lehane, Equity: Doctrines and Remedies (3rd Ed, 1992), [2169]DECISION: Application for interlocutory injunctive relief to permit plaintiff to reside in disputed property pending trial refused.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONHAMILTON J
FRIDAY, 4 FEBRUARY 2000
1101/00 DANIEL MOURREDINE DRIDI v DONALD RUSSELL FILLMORE & ORS
JUDGMENT
HIS HONOUR:
1 I have been dealing with an application in these proceedings for additional interlocutory relief made on behalf of the plaintiff. The proceedings are brought by the plaintiff against three defendants. The second and third defendants are sued as the trustees of the will trusts of John Sidney Aust. The first defendant has an interest in a residential property known as 36 Nobbs Street, Surry Hills (“the property”) as a beneficiary under those will trusts. There appears to be no doubt that the plaintiff and the first defendant lived together in a sexual and domestic relationship from about 1994 to late last year in the property. The first defendant's entitlement to live in the property arises from the terms of the will of the deceased, which deals with that property as follows:
“6(a) I GIVE my house at 36 Nobbs Street, Surry Hills ((‘my house’) to my Trustees UPON TRUST for the said RUSSELL DONALD FILLMORE for live he, in respect of my house:
(i) paying all rates and taxes and other outgoings;
(ii) keeping it in a good and habitable state of repair, fair wear and tear and damage by fire, lightning, flood, tempest and other inevitable accidents excepted; and
(iii) keeping it insured against fire, storm, tempest and other insurable risks.
(b) I DIRECT that upon the death of the said RUSSELL DONALD FILLMORE my Trustees will sell my house and hold the nett [sic] proceeds of sale after payment of any capital gains tax payable on the sale of my house UPON TRUST for such of the children of my nephews John Aust Jnr., Edward Robert Bruce and Ian Aust, and my nieces Lorraine Margaret Bruce and Jennifer Anne Bruce as survive me and if more than one equally between them.”
2 When the plaintiff and the first defendant ceased cohabitation late in 1999, the first defendant left the property. The plaintiff remained in residence until 14 January 2000, when, whilst away at work, he was locked out by the first defendant, and has since been excluded from the property. He has since that time been living in an hotel at a cost of $100 per day. That cost has not been borne by him personally, but by a friend.
3 The matter has previously been before the Court and there are operative orders made by Abadee J on 18 January 2000 in vacation restraining the defendants from parting with possession of the property. Although not expressly specified to be so, those orders have been taken by all the parties, as stated before me, to be made until further order. When the matter first came before me yesterday it was made plain that the defendants were prepared to maintain the title to the property in statu quo until the determination of the proceedings, although they indicated they would ask for permission to let the property during that time, so that income might be produced from it. It is plain from this, and common ground, that the first defendant did not resume occupation of the property after the eviction of the plaintiff on 14 January 2000 and, furthermore, that he does not intend himself to reside in the property pending the determination of these proceedings. That determination will be able to take place at an early time. The trial of the proceedings is estimated to take three days. It seems that the Masters in this Division have trial time available in April of which the parties will be able to avail themselves if they are able to have the matter prepared by then, which they certainly ought be able to do. The matter cannot be determined by a Master without reference by a Judge under SCR Part 60 r1A(1)(c) and Schedule D clause 4(a), since part of the claim is for the declaration of a constructive trust. However, all parties are prepared to consent to the matter being referred to a Master. The facts relating to the declaration of the trust are the same as, or closely entwined with, the claims made by the plaintiff under the Property (Relationships) Act 1984, and what is involved in the claim for the declaration of a constructive trust appears to me to be neither factually nor legally of any great complexity. In those circumstances, and particularly bearing in mind the consent of the parties, I propose to refer the whole of the trial in these proceedings to a Master.
4 The allegations to support the plaintiff's claims, as they are relevant to the application now made before me, appear as follows in the statement of claim:5 There was no affidavit evidence in support of the allegation in the statement of claim that a representation as to future residence in the property had been made to the plaintiff before he moved in to live in the property with the first defendant. However, leave was granted to lead oral evidence from the plaintiff during the hearing to this effect and, what is more, as a matter of general surprise, the plaintiff at that time also gave evidence that a document or documents had been brought into existence between the plaintiff and the first defendant relating to the first defendant's rights. Yesterday it was suggested that that document had disappeared, and it seemed that the Court was going to be asked to draw the inference that it had been destroyed by the first defendant. However, news was received overnight from France that a copy of one of the documents exists in France and is on its way to Australia, although it could not arrive today. Affidavit evidence was produced today by the plaintiff that the contents of that document (set out against bullet points) were as follows:
“16 The Plaintiff entered into the relationship with the First Defendant relying on and in the expectation of an enduring domestic relationship with the First Defendant and that the First Defendant would provide for the Plaintiff a place to live and a high standard of living until the First Defendant died.
Particulars
(a) Oral undertakings made by the First Defendant to the Plaintiff in June 1994 to the effect that the First Defendant would sponsor the Plaintiff’s application to reside in Australia and would provide for the Plaintiff a place to live and a high standard of living until the First Defendant died.
17 At the outset of the relationship, the First Defendant represented to the Plaintiff that the Plaintiff could live in the Premises and the Bilpin property as long as he wanted and whether or not they continued in a sexual relationship.
Particulars
The representations were oral and were made by the First Defendant to the Plaintiff in around May - July 1994.
18 To the knowledge of the First Defendant, the Plaintiff entered into the relationship relying on the said representations and in the expectation that the First Defendant would carry them out.
ParticularsWhat is now sought by the plaintiff by way of interlocutory relief, in addition to the relief granted by Abadee J as it will be modified by me, is, in effect, an injunction that will permit the plaintiff to reside in the property pending the determination of the proceedings.
From time to time during late 1994 the Plaintiff informed the First Defendant that the Plaintiff would not relocate to Australia unless the First Defendant was able to provide a stable domestic life and a place to live for the Plaintiff. The Statements were oral and were made during conversations between the Plaintiff and the First Defendant from time to time during late 1994.”
“ Russell will guarantee that he will not evict me from the house with force.
in case we break up, I have the right to stay in the house in a separate room.
we will both support financially each other if either of us need support.
when we spend money on the house we will record it in a ledger and both will sign.
we will make mutual wills and will be executors of each other’s wills.”
6 The evidence, so far as it goes, as to the financial circumstances of the parties is as follows. The plaintiff has no assets, but is employed at a gross wage or salary of $500 per week. The evidence as to the first defendant's financial state is exiguous. Where he is living does not appear, as his affidavits give as his address 36 Nobbs Street, Surry Hills, where he plainly is not living. He does not seek to enter into possession of the property pending the trial, and it has been indicated to the Court by his counsel that it has been undertaken on his part to the other parties that any income that is derived from the property pending the outcome of the proceedings may be held in an account to abide the further order of the Court. This certainly does not indicate that he has nowhere to live, or is extremely needy so far as money is concerned. On the other hand, it is quite plain (even leaving aside the fact that he is not paying for his present accommodation in an hotel) that the plaintiff, has sufficient income to find himself other accommodation if it is needed.
7 One characterisation of the function that I have to carry out in determining this interlocutory application is set out in the often cited passage from the judgment of the former Chief Justice of this Division in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 where McLelland J (as his Honour then was) said at 535-6:8 There has been a great deal of discussion of the effect of the decision in the Beecham case and other modern tests in relation to interlocutory injunctions. One statement of the effect of the Beecham case is contained in [2169] of Meagher, Gummow & Lehane, Equity: Doctrines and Remedies (3rd Ed, 1992) as follows:
“As I see it, the position is as follows. Where a plaintiff’s entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled: see, eg, Appleton Papers Inc v Tomasetti Paper Pty Ltd [1981] 3 NSWLR 208 at 216; A v Hayden (No 1) (1984) 59 ALJR 1 at 4-5; 56 ALR 73 at 79. Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg, A v Hayden (No 1) (at 4; 78); Cohen v Peko-Wallsend (1986) 61 ALJR 57 at 59; 68 ALR 394 at 397. If the Court does decide the question of law the uncertainty is to that extent removed.
Unless the plaintiff shows that there is at least a serious question to be tried which if resolved in its favour would entitle it to final relief, then the requirements of justice as between the parties will dictate that an interlocutory injunction should be refused: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283; 52 ALR 651; A v Hayden (No 1); Castlemaine-Tooheys Ltd v South Australia (1986) 60 ALJR 679; 67 ALR 533 and Cohen v Peko-Wallsend Ltd .
Ms Dowling, of counsel for the plaintiff, by reference to what his Honour said in that passage, put to me that in deciding this matter, because the claims were disputed and matters of fact underlying them also, I could not in any way take into account in determining this application the strength or weakness of the plaintiff's case. I do not agree with that proposition and I do not think that that was what was intended by his Honour in the passage cited above. His Honour referred to the judgment of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. The useful remarks of his Honour in the Kolback Securities case must be read in light of what the High Court said in Beecham , esp at 622.
Apart from this, although normally the Court ‘does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case’ ( Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622), there are some kinds of case in which for the purpose of seeing where lies the balance of convenience (or more specifically ‘the balance of the risk of doing an injustice’ - see per May LJ in Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 237, cf per Brennan J in Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983) 57 ALJR 288 at 292; 46 ALR 279 at 285), it is desirable for the Court to evaluate the strength of the plaintiff's case for final relief: see, eg, Brayson Motors Pty Ltd v Federal Commissioner of Taxation (at 292; 285); Castlemaine-Tooheys Ltd v South Australia at 682; 559. One class of case to which this applies is where the decision to grant or refuse an interlocutory injunction will in a practical sense determine the substance of the matter in issue: see, eg, NWL Ltd v Woods [1979] 1 WLR 1294 at 1306-1307; [1979] 3 All ER 614 at 625-626 per Lord Diplock; Cayne v Global Natural Resources plc .”
"What the plaintiff must prove is that he has a serious, not a speculative, case which has a real possibility of ultimate success and that he has property or other interests which might be jeopardised if no interlocutory relief were granted."
Those matters must, of course, be viewed in light of the balance of convenience and of surrounding circumstances, and a just result produced.
9 Mr Davies, of Senior Counsel for the second and third defendants, has put to me that the plaintiff has no interest to be protected because the interests he seeks will come into existence (if he be successful) only upon a final determination of these proceedings by way of an order under the Property (Relationships) Act 1984, or by way of the declaration of a remedial constructive trust. He and Ms Dowling debated this proposition by reference to dicta in Muschinski v Dodds (1985) 160 CLR 583 esp per Deane J at 614 and the exposition in the 6th Edition of Jacobs’ Law of Trusts in Australia [1310] and [1311]. I do not think there is any necessity for me to come to any conclusion as to this matter upon this application. The long and the short of the matter is that I do not see sufficient evidence of damage to any interest of the plaintiff if relief be not granted, taking into account all the circumstances, to justify the granting of an interlocutory injunction in the terms sought. I would come to this conclusion in any event, even if my view were totally neutral as to the plaintiff's prospects of success in obtaining, whether by way of constructive trust or by way of order under the Property (Relationships) Act 1984, an order the effect of which is that he be permitted to reside in the property during the lifetime of the first defendant. However, I should say that, if I did take into account the plaintiff’s prospects of success, the conclusion that I should come to is that, whilst it cannot be said that the plaintiff has no case at all for that relief, it seems to me, as the evidence stands at the moment, that the case for relief of that nature is not at all strong. I should say that that view is confined to relief of that nature; in my view the plaintiff has a stronger case for gaining some relief in the proceedings when the contest is fought out. For the foregoing reasons the plaintiff’s application for interlocutory relief to be extended so as to permit him to reside in the property pending the trial will be refused.
10 The other aspect of the matter that was before the Court yesterday was for relief relating to various personal property of the plaintiff that was removed from the property at the time of his ejectment on 14 January 2000. In relation to that matter also Abadee J made various orders on 18 January 2000. Whilst the sorting out of that aspect was not finalised until some time yesterday, when it occurred by agreement between the parties, it is correct to say that that matter was not argued before me. I did allow some evidence on that aspect in, so that it would be available if it became necessary to contest that matter, but that contest did not become necessary. Thus, there was no contest before me relating to the personal property. These last remarks are relevant to the question of costs. The plaintiff still maintains relief that will ensure that the title of the property is not disposed of, and that it will remain available to be the subject of or to satisfy any orders that he obtains at the hearing. Relief of that sort, however, he already had under the orders of Abadee J, and the defendants at no time sought before me to disturb appropriate protection in that regard. In those circumstances, the situation is that there was a contest before me as to only one kind of relief sought by the plaintiff, namely, such as would permit him to reside in the property, and in that contest the plaintiff failed. The defendants applied for an order that the plaintiff be ordered to pay the costs of the application before me and I propose to accede to that request. The defendants also applied for an order that the costs ordered in their favour be assessed and paid forthwith. I do not propose to accede to that application and it is refused.
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