Hera Project Pty Ltd v Bisognin - [2016] VSC 591

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2016 03457

HERA PROJECT PTY LTD (ACN 163 685 041)	Plaintiff
v
GINO ANDREW BISOGNIN & LEAH JOAN BISOGNIN	Defendants

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2016
DATE OF JUDGMENT:	3 October 2016
CASE MAY BE CITED AS:	Hera Project Pty Ltd v Bisognin & Anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 591

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INJUNCTIONS — Contract for sale of land ― Purchaser sought interlocutory prohibitory injunction and specific performance, alternatively mandatory injunction — Prohibitory injunction sought to prevent termination of contract of sale for land ― Mandatory injunction sought to compel the vendor to take steps to execute the contract of sale — Order for specific performance not appropriate at an interlocutory stage ― Serious question to be tried ― Defence of hardship considered ― Balance of convenience did not favour mandatory injunction being granted — Continuance of prohibitory interlocutory injunction ordered — Consideration of sufficiency of the plaintiff’s undertaking as to damages ― Boyarsky v Taylor [2008] NSWSC 1415 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Pane QC with Mr J Whelen	Russell Kennedy
For the Defendants	Mr J Ribbands with Mr W Stark	TF Grundy

HIS HONOUR:

Introduction

Hera Project Pty Ltd (‘Hera Project’), the plaintiff, is the purchaser of an undivided parcel of land, to be subdivided from a larger parcel of land owned by the defendants, Gino and Leah Bisognin. On 26 August 2016, Hera Project commenced this action by writ. It sought declarations, injunctions (interim and permanent) to restrain the Bisognins from terminating the contract of sale of the land, and specific performance, alternatively injunctions (interim and permanent), requiring the Bisognins to take certain steps under the contract to achieve its completion.

Having issued the writ, Hera Project filed a summons for interlocutory relief. It is that summons that is currently before the Court. By that summons Hera Project applies for two types of relief:

(a) an interlocutory injunction to restrain the Bisognins from terminating the contract of sale; and

(b) specific performance, alternatively an interlocutory injunction, requiring the Bisognins to take the steps to execute the contract that are identified in the writ — in substance, those steps require compliance with the requirements of various public authorities to make payments and/or enter agreements in order to enable the registration of the plan of subdivision which will effect the sub-division of the land which has been sold.

As the judge sitting in the Practice Court, on 30 August 2016 I made an interim order, without opposition from the Bisognins, restraining them from terminating the contract of sale until further order of the Court. An undertaking as to damages was given by Hera Project in support of that interim injunction. Directions were then given to enable the Bisognins to file evidence in opposition to the application and fixing a date for its further hearing. On 13 September 2016, after the Bisognins had…

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: [2016] VSC 591
Decision Date: 3 October 2016

CaseChat Overview and Summary

Hera Project Pty Ltd sought an interlocutory prohibitory injunction and specific performance, or alternatively a mandatory injunction, to compel Bisognin to execute a contract for the sale of land. The case was heard in the Supreme Court of New South Wales. The primary legal issue was whether an interlocutory prohibitory injunction should be granted to prevent the termination of the contract for sale of land and whether a mandatory injunction should be granted to compel the vendor to take steps to execute the contract of sale.

The court found that an order for specific performance was not appropriate at an interlocutory stage. It considered whether there was a serious question to be tried and whether the defence of hardship was applicable. The balance of convenience did not favour granting a mandatory injunction. The court held that the plaintiff had established a serious question to be tried, but the balance of convenience did not favour the grant of a mandatory injunction. The court continued the prohibitory interlocutory injunction and ordered that the sufficiency of the plaintiff’s undertaking as to damages be considered in accordance with the principles outlined in Boyarsky v Taylor [2008] NSWSC 1415.

The court found that the plaintiff had established a serious question to be tried, particularly in relation to the issue of hardship. However, the court did not find that the balance of convenience favoured the grant of a mandatory injunction. The court continued the prohibitory interlocutory injunction and ordered that the sufficiency of the plaintiff’s undertaking as to damages be considered in accordance with the principles outlined in Boyarsky v Taylor.

The final orders included the continuation of the prohibitory interlocutory injunction and the requirement for the plaintiff to provide an undertaking as to damages.

Orders