HZD Pty Ltd v McInnes & Ors
[2007] QSC 213
•17 August 2007
SUPREME COURT OF QUEENSLAND
CITATION:
HZD Pty Ltd v McInnes & Ors [2007] QSC 213
PARTIES:
HZD PTY LTD AS TRUSTEE FOR THE ADMIRALTY TRUST
(applicant)
V
DUNCAN IAN ROBERT MANNING MCINNES
(first respondent)
AND
ZHI JUN ZHAO AND JING FENG
(second respondent)
AND
GALCOAST PTY LTD TRADING AS RAY WHITE BROADBEACH
(third respondent)
AND
KOLLOSCHE ENTERPRISES PTY LTD
(fourth respondent)
AND
MICHAEL KOLLOSCHE
(fifth respondent)
AND
GARY CANNON
(sixth respondent)
FILE NO/S:
BS5684 of 2007
DIVISION:
Trial division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
17 August 2007
DELIVERED AT:
Brisbane
HEARING DATE:
31 July 2007
JUDGE:
Daubney J
ORDER:
1. That Caveat No 710639589 registered over the property described as Lot 1 on SP 170343, County of Ward, Parish of Gilston, Title Reference 50522963 be removed.
2.The applicant’s application for an interlocutory injunction otherwise be dismissed.
3.The applicant pay the respondents’ costs of and incidental to the application for removal of the caveat and the appearance of all parties on the return of the originating application on 31 July 2007, to be assessed on the standard basis.
CATCHWORDS:
CONVEYANCING – LAND TITLE UNDER TORRENS SYSTEM – CAVEATS AGAINST DEALINGS – LAPSE, REMOVAL OR WITHDRAWAL – application by the first respondent to remove a caveat lodged by the applicant – where applicant sought interlocutory injunction to restrain the disposition of the property - whether caveator has established a serious question to be tried.
Fair Trading Act1989 (Qld)
Land Titles Act 1994 (Qld) s 127
Property Law Act1974 (Qld) s 59
Property Stock and Business Agents Act 2002 (NSW) reg 18
Trade Practices Act 1974 (Qld) s 51AA, s 52, s 75B, s 87
AGC (Advances) Ltd v McWhirter (1977) 1 BPR 1, cited.
Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457, considered.
Butcher v Lauchlan Elder Realty Pty Ltd (2004) 218 CLR 592, cited.
Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 209, cited.
Johnston v Ball [2002] QSC 110, cited.
McConville v Australian Telecommunications Commission (1992) ANZ Conv R 67, cited.
Re Burman’s Caveat [1994] 1 Qd R 123, cited.
Seivewright v Brennan (2005) 12 BPR 2, considered.Yorke v Lucas (1985) 158 CLR 661, cited.
COUNSEL:
GC Lindsay SC with GR Coveney counsel for the applicant.
W Sofronoff QC with J Otto counsel for the first respondent.
G Handron counsel for the second respondent.J Sweeney counsel for the fourth and fifth respondents.
SOLICITORS:
Bell Legal Group for the applicant.
Hopgood Ganim for the first respondent.
Hickeys Lawyers for the second respondent.
Carter Newell for the third and sixth respondents.HW Litigation for the fourth and fifth respondents.
Introduction
DAUBNEY J: The first respondent (the Vendor) is the registered proprietor of the property at 70 Admiralty Drive, Paradise Waters (Lot 1 on SP 170343, County of Ward, Parish of Gilston, Title Reference 50522963) (the Property).
The Vendor wishes to sell the Property. He has a contract to sell it to the second respondents, which is due to settle on 24 August 2007. He has contracted to buy another property and, whilst that contract was not due to settle until 30 November 2007, he has negotiated an early settlement date for that contract on 24 August 2007, subject to the sale of the Property to the second respondents also settling on that date, and with a reduction in the purchase price of $25,000.00 for the early settlement.
On 31 May 2007, Caveat No. 710639589 was lodged over the Property, and was registered on the same day. The caveator is specified in Item 1 of the caveat as ‘HZD Pty Ltd (Helen Dimitrijevski)’. Mrs Dimitrijevski’s signature appears at the foot of the caveat over the heading ‘Caveator’s or Solicitor’s Signature’, and handwritten under that heading are the words ‘Director of HZD Pty Ltd ACN 099 901 649’.
It seems clear that it was intended that HZD Pty Ltd (HZD) be the caveator. The parties have argued the matter on that basis.
The interest claimed by HZD in Item 3 of the caveat is ‘purchaser in fee simple and equitable interest in the land’.
The grounds of that claimed interest are set out in Item 4 and Annexure A of the caveat:
Pursuant to contract of sale dated 26.05.07 between caveator and registered owner (see Annexure A).
[Annexure A]
In addition the Caveator claims it has an equitable interest in the property described in Section 2 above pursuant to a contract, comprising of the conditions of sale by public auction for real property in QLD and the contract of sale for House and Land presented at auction by the registered owner. The parties to that contract include the Caveator and the registered owner.
The Vendor has applied for an order pursuant to s 127 of the Land Titles Act 1994 (Qld) that the caveat be removed. In such an application, the position of HZD as caveator is as if it were applying for an interlocutory injunction to restrain the disposition of the Property: Re Burman’s Caveat.[1] Indeed, Mr Lindsay SC who led for HZD, when confronted in the course of argument with a potential difficulty in connection with the form of the caveat, applied instanter for an interlocutory injunction. In accordance with the principles recently restated by the High Court in Australian Broadcasting Corporation v O’Neill,[2] it was therefore for HZD to persuade me that:
[1] [1994] 1 Qd R 123.
[2] (2006) 229 ALR 457.
(a) there is a serious question to be tried, being one which carries a sufficient likelihood of success to justify in the circumstances the preservation of the status quo; and
(b) the balance of convenience favours a restraint on disposition of the Property, either by retention of the caveat or by interlocutory order.
HZD’s claim to restrain the Vendor’s disposition of the Property arises out of events which occurred in connection with an auction of the Property on 26 May 2007.
The Auction on 26 May 2007
Ray White Broadbeach had some 18 properties up for auction at the Gold Coast Convention and Exhibition Centre on Saturday, 26 May 2007. The Property was the first lot, with its auction scheduled to commence at 10.00am.
There are some differences between the Vendor’s version of events on that day and HZD’s version, but it is possible to distil a basic factual matrix.
It is common ground between the parties that the auction was governed by the written ‘Conditions of Sale by Public Auction for Real Property in Queensland’ (Auction Conditions), which had been advertised prior to the commencement of the auction. These Auction Conditions provided as follows:
1. Any person intending to bid should register their interest before making a bid, and upon making a bid the bidder must clearly display the bidder number assigned to the4m by the auctioneer as bids will only be accepted from registered bidders.
2. The highest approved bidder shall be the buyer subject to the Seller’s approval and the reserve price, if any.
3. The Auctioneer may at his discretion refuse to accept any bid from any person, and no bid if accepted may be retracted without the consent of the Auctioneer. No bidder shall advance a less sum or percentage at any bidding than the Auctioneer is willing to accept.
4. A bid shall be deemed to be accepted unless the Auctioneer forthwith after it has been made declares his non acceptance or dissent.
5. If any dispute or difference shall arise as to the highest bidder the Auctioneer may reopen the bidding and resubmit the property commencing with the highest amount previously bid for the same or he may decide on the highest bidder in such other manner as he in his absolute discretion shall deem fit and his decision shall be final.
6. Immediately upon the fall of the hammer the bidder of the highest bid accepted shall sign the se conditions of sale and purchase and forthwith pay the deposit required and shall thereupon be deemed to be the Buyer, otherwise the property may be resubmitted at his or her risk and expense or submitted afresh to Public Auction as if the property had never before been submitted.
7. The right to bid by or on behalf of the Seller is expressly reserved.
8. The Seller and the Buyer agree to do all necessary acts and to sign all documents and papers for the purpose of transferring the property to the Buyer. They also appoint the Auctioneer as their Agent and grant him an irrevocable authority to sign all documents and papers necessary to form the agreement for sale and purchase of the property.
9. A bidder shall be deemed to be acting on their own behalf unless, prior to bidding he/she has given the Auctioneer a copy of a written authority to bid for, or on behalf of, another person.
10. The conditions then to apply are as contained in the Real Estate Institute’s copyright form of Contract and Terms of Contract for Houses and Land Fourth Edition, Units and Townhouses second, third and/or fourth edition, and/or any other contract of sale that has been on display prior to the auction. Clause 3, the finance clause, does not apply and Clause 4, the Building or Buyers Inspection Clause does not apply.
All Bidders at this Auction and, more particularly, the successful bidder shall be deemed to have been given, and to have read and acknowledged the “Contract Warning” and the “Disclosure Statement” under the Body Corporate and Community Management Act 1997 which are annexed to the contract of sale by virtue of the fact that they have been on display prior to this Auction.
TERMS:10% DEPOSIT ON THE FALL OF THE HAMMER AND THE BALANCE IN CASH IN 30 DAYS, OR ANY OTHER SUCH DATE OR TEMS AS SPECIFIED BY THE AUCTIONEER PRIOR TO AUCTION.
N.B:IN ACCORDANCE WITH THE TERMS OF AUCTION NO COOLING OFF PERIOD WILL APPLY.
N.B:The auctioneer may, at his/her discretion during the in-room auctions, elect to pause an auction and continue in the order. All auctions will be re-opened to the public and either sold or passed in, prior to the closing of the auctions.
Before starting the auctions, the auctioneer (who is the sixth respondent in these proceedings) read out the Auction Conditions to the crowd gathered for the auctions. When introducing the auction of the Property, he advised the crowd that, for that particular sale, a 5% deposit and a settlement period of up to 90 days would be accepted, provided that the deposit was released to the Vendor after 30 days.
Mrs Dimitrijevski, who is the sole director and shareholder of HZD, attended the auction with her husband, Mr Zivko Dimitrijevski, and Kylie and Jason Wade. Mr Dimitrijevski registered as the bidder on behalf of HZD for the auction of the Property, and he was assigned the ‘Bidders Registration Number’ of ‘92’, he having apparently provided the auctioneer with a copy of the written authority he held to bid on behalf of HZD[3] in compliance with clause 9 of the Auction Conditions.
[3] Exhibit “HD2”.
The auction of the Property opened with a bid of $6.5 million. HZD asserts that a number of bids were made on its behalf in the bidding which followed, but this is not presently clear on the affidavits read on this application. The Vendor expressly deposes to bids being made by Mrs Dimitrijevski, who was not registered to bid on behalf of HZD. Indeed, by clause 9 of the Auction Conditions, any bids by Mrs Dimitrijevski would have been deemed to have been made on her own behalf, and not on behalf of HZD. This aspect is not assisted by Mrs Dimitrijevski’s affidavit, in which she states:
The bidding continued between myself and an Asian party who I now know to be Zhi Jun Zhao and Jing Feng, who were seated directly behind me. Zhi Jun Zhao and Jing Feng made a bid at $7.530 million. We then placed our bid of $7.535 million … I then said “No stop, this is illegal”. I was referring to the fact that my bid had been increased by the unregistered bidders. Had they not bid, as they were not entitled to do, the Property price would have been lower than my last bid of $7.535 million.
(Underlining added)
Counsel for HZD urged me not to construe literally these references to Mrs Dimitrijevski being the one doing the bidding, but rather to take them as her referring generally to bids made on behalf of her company, HZD. I note that there is no reference at all in her affidavit to Mr Dimitrijevski doing the bidding on behalf of HZD, that Mr Dimitrijevski has not sworn any affidavits in which he confirms that he was the one who was actually bidding, and that the only express assertion to that effect was by way of statement from the bar table. For the reasons set out below, however, it is not necessary for me to make a finding on this issue of fact for the purposes of determining this application.
The bidding, which had started at $6.5 million, progressed to $7.5 million, at which point the auctioneer announced that the Property was ‘on the market’, ie that a purchase price in excess of that figure would be acceptable to the Vendor. The second respondents, Zhi Jun Zhao and Jing Feng, then purported to bid $7.525, and Mrs Dimitrijevski says, ‘we then placed over a bid of $7.535 million.’ In fact, the auction records make it clear that this bid was for $7.530 million. At this point, there was some slight delay, apparently caused by language difficulties with the second respondents and their need to make a phone call to Hong Kong. When the second respondents then purported to bid $7.535 million, the auctioneer asked for their bidding number, and it emerged that they were not, in fact, registered bidders at that time. By reference to the transcript of the auction,[4] it appears that the auctioneer then reverted to the figure of $7.53 million, and after calling that number for a second and third time, announced that he was going to ‘hold it over’. The auction was then stood down, and the auctioneer moved immediately to the auction of the next lot.
[4] Exhibit “JMG.04”.
When it became apparent that the second respondents were not at that stage registered bidders, Mrs Dimitrijevski, as noted in the passage quoted above, demanded that the auction stop because ‘this is illegal’.
Mrs Dimitrijevski deposes to discussions she then had with various people, including the fifth respondent, Mr Kollesche, who was the agent who had originally shown the Property to Mrs Dimitrijevski. She says that Mr Kollesche took her outside the auction room because she was emotional, and asserts that he assured her ‘it would all be rectified’. She then says that she waited ‘in the foyer and just outside the auction room for 10 minutes in full view of all other personnel and staff’, that Mr Kollesche checked with her between auctions to ensure she was alright, and that she then went outside to smoke. Mrs Dimitrijevski says that ‘we waited’ (I was told from the bar table that this was a reference to her and her husband) outside until she was told, at about 11.10am, by a business associate that the Property had been sold to the second respondents.
During Mrs Dimitrijevski’s absence from the auction room, the auctioneer had proceeded with several other auctions. While he was conducting these other auctions, the second respondents were registered as bidders for the Property. The Vendor deposes to the following occurring:
The auctioneer then announced to the audience that all bidding registrations were now in place with the vendor’s approval and verbal confirmation from prospective bidders present, that the auction would recommence at the last bid of $7.535 million in favour of Zhao and Feng. The auctioneer informed the audience that all previous bidders, with the exception of the Applicant’s representative were present in the room. He further advised that Michael Kollesche had made endeavours to communicate with the Applicant’s representative (Helen Dimitrijevski).
Michael Kollesche then addressed the auctioneer and the audience and confirmed they had left the building and were unreachable on their mobile phone. The auction then restarted at $7.535 million and as there were no higher bids, the Property was sold under the hammer to Zhao and Feng. I subsequently signed a contract of sale for $7.535 million shortly thereafter.
Much of the finer detail of the events which occurred at and after the auction is disputed between the parties and not amenable to final findings being made on an application such as this. The followings facts are, however, beyond argument:
(a) The Property was not ‘knocked down’ to HZD at any time in the auction on 26 May 2007; and
(b) There is no written contract dated 26 May 2007 for the sale of the Property by the Vendor to HZD.
No Contract of Sale
The fact that the Property was never ‘knocked down’ to HZD at the auction is, in my opinion, decisive of the present application.
Even accepting, on HZD’s version, that it was the only relevant registered bidder, and indeed the highest registered bidder, the fact that its bids had been accepted by the auctioneer for the purpose of running and advancing the auction did not mean that a contract of sale of the Property automatically emerged with the acceptance of its highest bid. The highest offer bid at an auction is only accepted in a contractual sense when the property is ‘knocked down’ – the ‘fall of the hammer’ referred to in clause 6 of the Auction Conditions is the auctioneer’s communication of contractual acceptance of the highest bid. The provision in clause 2 of the Auction Conditions that ‘the highest approved bidder shall be the Buyer subject to the Seller’s approval and the reserve price, if any’ does not affect the general proposition that unconditional contractual acceptance of the highest bid only occurs when the hammer falls.
In Seivewright v Brennan,[5] Young CJ in Eq considered the circumstances of a mortgagee sale. Regulation 18 made under the Property Stock and Business Agents Act 2002 (NSW) prescribed conditions applicable to the auction, including a condition that ‘the highest bidder is the purchaser, subject to any reserve price’. His Honour referred to the judgment of Holland J in AGC (Advances) Ltd v McWhirter,[6] and particularly a passage in which Holland J had said that:[7]
… no contract can come into existence unless and until his bid is accepted, usually, by the fall of a hammer. In my opinion, this is still the law of auctions and was not affected in the present case by the announcement at the auction that the highest bidder should be the purchaser and that no bidding should be retracted or by the announcement to the effect that the sale was no longer subject to a reserve price. This means that it is open to the vendor to withdraw the property from sale at any time before a bid has been accepted or, as in this case, to decline to accept a bid from the party with whom the vendor does not wish to contract.
[5] (2005) 12 BPR 98, 22,979.
[6] (1977) 1 BPR 1.
[7] Ibid, 9457.
Young CJ in Eq then made the following observations,[8] which I consider directly apposite to the present case:
It seems to me that on the proper construction of Reg 18, where it says “the highest bidder is the purchaser”, the words of Holland J make it clear that to his Honour’s eyes the old condition in contract law, as is set out at 9455 of the report, that the highest bidder shall be the purchaser, did not change the general law of auctions, and that is that it was only when the hammer fell that there was a concluded deal, up until that time, any bid that is “accepted” does not give rise to the formation of a contract. If it did, every time a higher bid was put in there would be some sort of breach of contract, and that cannot be the law. There must be some sort of conditional offer, or conditional acceptance in the making of a bid at an auction up until the time that the hammer falls. In my view, until that time it is open to the auctioneer to make a decision, even if he has previously indicated that a bid is accepted, that a bid will not be considered when he brings down the hammer. In my view, Reg 18(1)(c) does not, on its proper construction, alter that position.
[8]Seivewright v Brennan (2005) 12 BPR 98, 22,982-2 [31].
The present case is not like that considered by Muir J in Johnston v Ball.[9] In that case, the property in question had been knocked down at auction to a bidder. His Honour considered a condition of auction which provided:[10]
1. The highest bidder will be the buyer subject to:
(a) The reserve price; and
(b) The seller’s approval.
[9] [2002] QSC 110.
[10] Ibid, 44.
His Honour said that clause 1(b) does not state, nor is it implicit, that the vendor’s approval may only be given by the signing of a contract by the vendor, and that the approval was communicated when the auctioneer announced that the property was on the market for a specified price. Applied to the present case, it could therefore well be said that the Vendor’s approval for the purposes of clause 2 of the Auction Conditions was communicated when the auctioneer declared the Property to be ‘on the market’ when the bidding reached $7.5 million.
But even on HZD’s evidence, at no time did it become the ‘Buyer’ under the Auction Conditions. Clause 6 of the Auction Conditions requires three things to occur before the highest bidder is deemed to be the Buyer, namely:
(a)The fall of the hammer;
(b)The signing of the conditions of sale and purchase by the bidder; and
(c)Payment of the required deposit.
None of these requirements were fulfilled in relation to HZD on 26 May 2007, and it therefore never became the ‘Buyer’ under the Auction Conditions.
In view of the foregoing, it almost goes without saying that there is no contract between the Vendor and HZD for the sale of the Property which satisfies the requirements of the Statute of Frauds.[11]
[11]Property Law Act1974 (Qld) s59.
HZD, however, seeks to cast its net wider than this for the purposes of seeking to restrain the Vendor from disposing of the Property. In its statement of claim, HZD seeks to advance a case that the Vendor, the real estate agents, the auctioneer, and all persons intending to bid at the auction were:
bound, by contract (“the Auction Contract”), to accept that, insofar as they participated in the Auction, their prospective dealings with the Property, and their respective relationships with each other in and arising from such dealings, were (and remain) governed by:
(i)The stipulation that all prospective bidders would be required to register as bidders before the start of the Auction;
(ii)The stipulation that only bids from registered bidders would be accepted by the auctioneer;
(iii)The stipulation that all registered bids would be accepted; and
(iv)The Auction Conditions.
HZD contends alternatively that an estoppel by convention arose between the parties such as to cause their dealings with the Property and with one another to be governed by similar terms.
The third of these stipulations, namely ‘that all registered bids would be accepted, is alleged to be sourced in a statement made by the auctioneer in the course of his introduction to the auction. The transcript of his introduction records him saying, ‘All bids will be accepted from a bid of registered bidders’. HZD would seek to elevate this statement by the auctioneer to be a promise enforceable by contract or in equity that a bid at the auction made by a registered bidder would be ‘accepted’ in the sense of contractual acceptance of the offer constituted by the bid.
There are two difficulties with this notion.
First, it is, to my eye, clear that the auctioneer was at this point in his introductory remarks either reading or paraphrasing the printed Auction Conditions. The sentence in the transcript on which HZD relies needs to be read with the sentence immediately preceding it – read together, those two sentences in the transcript effectively replicate clause 1 of the Auction Conditions.
The second difficulty, of course, is that adverted to by Young CJ in Eq in Seivewright v Brennan.[12] It defies common sense to suggest that the parties to an auction would be bound by contract or in equity by a promise that all registered bids would be unconditionally ‘accepted’ in a contractual sense – such a notion is directly contrary to the inherent competitive nature of the auction process.
[12] (2005) 12 BPR 98.
Accordingly, in my view, no circumstance arose on 26 May 2007 which imposed an obligation at law or in equity on the Vendor to enter into a contract to sell the property to HZD for $7.53 million.
I should note that this is not to say that HZD may not have legitimate complaints about the way in which the auction was conducted – whether the auctioneer complied properly with the Auctioneering Practice Code of Conduct in relation to the registration of bidders, whether there was a breach of the Auction Conditions in the way in which the auction proceeded, and whether there was a breach of the Auction Conditions by permitting the second respondents to become registered bidders after the auction had commenced. None of these potential causes of action, however, give rise to an entitlement on the part of HZD to demand conveyance to it of the Property, and any remedies would sound in damages.
Similarly, to the extent that it is asserted by HZD that the auctioneer was under an obligation to sign a contract as agent for the Vendor, such an obligation would only arise if the Vendor himself was under an obligation to enter into a contract of sale of the Property with HZD. In the circumstances described above, no such obligation arose.
A further case sought to be advanced by HZD is that the parties were bound by an:
implied covenant … that upon the highest registered bidder becoming entitled to purchase the Property from the Vendor, no party bound by the Auction Contract or the Auction Convention (including the Vendor and the second respondents as pleaded in this statement of claim) would induce, or attempt to induce, a breach of, or an interference with, the successful bidder’s entitlements to purchase the Property.
For the reasons given above, even if HZD was the ‘highest registered bidder’, it did not become ‘entitled to purchase the Property’ because the Property had not been knocked down to it.
HZD further asserts that the contractual relationship of the parties to the auction was governed by an implied term that they would act in good faith. The implication of a term of good faith in commercial contracts has had varying degrees of judicial acceptance in New South Wales. It is unnecessary for me to determine whether the law of Queensland implies such a term because, even if it did, the breach of such a term would not give rise to an entitlement on the part of HZD to compel conveyance of the Property, but would sound in damages.
HZD makes further claim for relief under the Trade Practices Act 1974 (Qld) (TPA) and the Fair Trading Act1989 (Qld). Reliance on the Fair Trading Act1989 (Qld) is, with respect, misconceived, because on no view could it be said that HZD is a ‘consumer’ for the purposes of that Act. The cases under the TPA assert various representations, express and implied, by the auctioneer and real estate agents, which are alleged to have been misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the TPA or unconscionable in contravention of s 51AA of the TPA. The only allegation made against the Vendor in that regard is a bare recitation of the elements of s 75B of the TPA, namely that the Vendor ‘aided, abetted, counselled and procured’ and ‘was knowingly concerned in, and party to’ each of the alleged contraventions of the TPA. It is, of course, possible that HZD may at trial establish cases of misleading and deceptive conduct or unconscionability arising out of representations made by the real estate agents and/or the auctioneer. But it is not enough, for the purposes of the accessorial liability provisions in s 75B merely to assert the elements of the section. Before a person can be held liable under s 75B, it must be shown that the person was ‘an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention’: Yorke v Lucas;[13] Butcher v Lauchlan Elder Realty Pty Ltd.[14]
[13] (1985) 158 CLR 661, 670.
[14] (2004) 218 CLR 592, 60.
In the present case, there is no pleading and no evidence put before me to associate the Vendor with the alleged misrepresentations such as to found a case of accessorial liability against him under the TPA.
In any event, I very much doubt that, in the circumstances of this case, a court would exercise its power under s 87 of the TPA to compel the Vendor to sign a contract of sale to HZD or to compel a conveyance of the Property. No authority to support the making of such an order was cited to me on behalf of HZD, and indeed there is authority to support the doubts I have in this regard: Futuretronics International Pty Ltd v Gadzhis;[15] McConville v Australian Telecommunications Commission.[16]
[15] [1992] 2 VR 209.
[16] (1992) ANZ Conv R 67.
Accordingly, HZD has not satisfied me that there is a serious question to be tried, being one which carries a sufficient likelihood of success to justify in the circumstances the preservation of the status quo.
Balance of Convenience
In view of my conclusion as to the first element, it is unnecessary for me to express a concluded view on the question of balance of convenience. It is appropriate for me to record, however, that, having regard to the detriment which would be suffered by the Vendor if his sale of the Property to the second respondents was delayed, and also having regard to the fact that, in my view, any remedies which might be pursued by HZD sound appropriately in damages, I consider the balance of convenience in the present case would have favoured the Vendor.
Conclusion
Accordingly, I order:
(a) that Caveat No 710639589 registered over the property described as Lot 1 on SP 170343, County of Ward, Parish of Gilston, Title Reference 50522963 be removed;
(b) the applicant’s application for an interlocutory injunction otherwise be dismissed;
(c) the applicant pay the respondents’ costs of and incidental to the application for removal of the caveat and the appearance of all parties on the return of the originating application on 31 July 2007, to be assessed on the standard basis.
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