JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HART-ROACH -v- CADY [No 2] [2011] WASC 266
CORAM: COMMISSIONER SLEIGHT
HEARD: 12 & 21 SEPTEMBER 2011
DELIVERED : 29 SEPTEMBER 2011
FILE NO/S: CIV 1578 of 2011
BETWEEN: RUTH MARY HART-ROACH
Applicant
AND
NEIL CADY
First RespondentJEWELL HOUSE (YMCA)
Second Respondent
FILE NO/S :CIV 1666 of 2011
BETWEEN :RUTH MARY HART-ROACH
Plaintiff
AND
RONALD MELL CEO, REPRESENTING YMCA PERTH
First DefendantNEIL CADY
Second Defendant
Catchwords:
Practice and procedure - Application to amend writ of summons - Application to join additional defendants to the writ of summons
Injunction - Interlocutory injunction - Claim under the Fair Trading Act 1987 - Whether the plaintiff has established a serious issue to be tried - Whether the balance of convenience favours the plaintiff - Turns on its own facts
Legislation:
Fair Trading Act 1987 (WA), s 74, s 76
Residential Tenancies Act 1987 (WA), s 3, s 5(1), s 5(2)(d) , s 12, s 12A, s 60(1)(a)
Result:
Application for leave to amend writ granted in part
Interim injunction set aside
Category: B
Representation:
CIV 1578 of 2011
Counsel:
Applicant: In person
First Respondent : Mr N D Billington
Second Respondent : Mr N D Billington
Solicitors:
Applicant: In person
First Respondent : Cahill Billington
Second Respondent : Cahill Billington
CIV 1666 of 2011
Counsel:
Plaintiff: In person
First Defendant : Mr N D Billington
Second Defendant : Mr N D Billington
Solicitors:
Plaintiff: In person
First Defendant : Cahill Billington
Second Defendant : Cahill Billington
Case(s) referred to in judgment(s):
American Cyanamid Co v Ethicon Ltd [1975] AC 396
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464
Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148
Commissioner for Fair Trading v Voulon [2005] WASC 229
Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49
Hart‑Roach v Cady [2011] WASC 90
Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1
Street v Mountford [1985] AC 809
Todd v Novotny [2001] WASC 171
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
COMMISSIONER SLEIGHT: Ms Hart‑Roach resides at Jewell House, an accommodation facility conducted by The Young Men's Christian Association of Perth Inc (the YMCA Perth). A dispute has arisen between Ms Hart‑Roach and the YMCA Perth which initially manifested itself in this court with Ms Hart‑Roach applying for an interim injunction in CIV 1578 of 2011 to prevent the YMCA Perth from evicting Ms Hart‑Roach. On 5 April 2011, an interim injunction was granted restraining the YMCA Perth from evicting Ms Hart‑Roach pursuant to an…
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- AGLC
- HART-ROACH v Cady [No 2] [2011] WASC 266
- Case
- [2011] WASC 266
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiff had not established proper grounds to maintain the interim injunction. Firstly, the plaintiff did not plead in the proceedings that the eviction notice was illegal or seek any remedy in relation to the purported eviction. Secondly, the claim by the plaintiff was for damages only and the interim injunction was not necessary to preserve any cause of action or relief sought. The court noted that the nature of a periodic licence suggests that the YMCA Perth is entitled to terminate the licence at the expiration of each period of the licence or after reasonable notice, which means that the plaintiff had little security of tenure. Lastly, the injunction only restrained the YMCA Perth from evicting the plaintiff pursuant to the eviction notice of 4 April 2011, and there was nothing to prevent the YMCA Perth from taking steps to evict the plaintiff by other lawful means.
The court concluded that the interim injunction granted on 5 April 2011 should be set aside. The reasons for this were that the plaintiff had not established a sufficient basis for allowing the injunction to continue to maintain the status quo or that the balance of convenience favoured the plaintiff. The court found that damages would be an adequate remedy for the plaintiff and that the YMCA Perth would be able to pay them. Accordingly, the court set aside the interim injunction.
The court ordered that the interim injunction granted on 5 April 2011 be set aside. The court also ordered that the YMCA Perth pay the plaintiff's costs of the application.
Orders
Orders of the court
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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
The power to grant an interim injunction under s 76(5) of FTA 1987 is not an unlimited right. As a general rule, the purpose of an interlocutory injunction is to keep matters in the status quo until the rights of the parties can be determined at the hearing. Preservation of the status quo means preservation of the remedy sought by way of final relief in the action. In other words, the plaintiff seeking an interlocutory injunction must be able to show sufficient relationship to the right contained in the final relief sought. Accordingly, it is necessary to identify the legal or equitable rights which are to be determined in respect of which the final relief is sought: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, 217 (Gleeson CJ), 240 ‑ 241 (Gummow & Hayne JJ), 312 (Callinan J); Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148, 153 (Mason ACJ). If damages will be an adequate remedy and the defendant will be able to pay them, an interlocutory injunction should not normally be granted: American Cyanamid Co v Ethicon Ltd [1975] AC 396, 408. I conclude that, in all the circumstances, the interim injunction granted on the 5 April 2011 should be set aside. The reasons for this are as follows.(1)Ms Hart‑Roach does not plead in CIV 1666 of 2011 that the eviction notice was illegal or seek any remedy by way of injunctive relief or otherwise in relation to the purported eviction.(2)The claim by Ms Hart‑Roach is for damages only and the interim injunction is not, in my opinion, necessary in order to preserve any cause of action or relief sought. Although one of the items of damage sought by Ms Hart‑Roach is an ex gratia payment of $50,000 to make it possible for Ms Hart‑Roach to move out of Jewell House and to rent alternative accommodation in the commercial market as a tenant, it is difficult to see how such a claim could succeed. Ignoring the description 'ex gratia payment', it is difficult to see how a claim of reliance upon the logo of the YMCA Perth could lead to a loss or damages in a form that would require the YMCA Perth to pay the costs of Ms Hart‑Roach moving to alternative premises, given that at any time she occupied the premises as a periodic licensee. The nature of a periodic licence suggests (without finally deciding the point) that the YMCA Perth is entitled to terminate that licence at the expiration of each period of the licence or after reasonable notice. Accordingly, there is little security of tenure and at any time Ms Hart‑Roach could be subject to incurring relocation costs.(3)The injunction only restrains the YMCA Perth from evicting Ms Hart‑Roach pursuant to the eviction notice of 4 April 2011 and there is nothing to prevent the YMCA Perth from taking steps to evict Ms Hart‑Roach by other lawful means. Taking these factors into account, I conclude that Ms Hart‑Roach has not established proper grounds to maintain the interim injunction, either because there is insufficient basis for allowing the injunction to continue to maintain the status quo or because, on the balance of convenience, I am not satisfied that the injunction should continue.