Kevin Cahill Nominees Pty Ltd v Austral Piling and Construction Pty Ltd
[2001] VSC 460
•26 November 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 8402 of 2001
| KEVIN CAHILL NOMINEES PTY. LTD. | Plaintiff |
| v | |
| AUSTRAL PILING AND CONSTRUCTION PTY. LTD. | Defendant |
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JUDGE: | BEACH, J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 NOVEMBER 2001 | |
DATE OF JUDGMENT: | 26 NOVEMBER 2001 | |
CASE MAY BE CITED AS: | KEVIN CAHILL NOMINEES PTY. LTD. v. AUSTRAL PILING AND CONSTRUCTION PTY. LTD. | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 460 | |
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CATCHWORDS: Interlocutory injunction – No serioius issue to be tried – Delay.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. J.D. Mattin | Macpherson & Kelley |
| For the Defendant | Mr. M.D. Mulvaney | Lennon & Settle |
HIS HONOUR:
The defendant in this proceeding, Austral Piling and Construction Pty Ltd, is the owner of 2.023 hectares of land at Hallam Valley Road in the Dandenong area, being the land described in Certificate of Title Volume 10230 Folio 166.
The plaintiff is a company controlled by Kevin Thomas Cahill. It would appear from the material before the court that Mr Cahill is the proprietor of other companies, one in particular being Cahill Heavy Haulage Pty Ltd. That company carries on business as a haulage transport operator.
In September of 1996 Mr Cahill had a conversation with an employee of the defendant named Peter Slack. He told him that the plaintiff, that is, Kevin Cahill Nominees Pty Ltd, had been negotiating to purchase some land in Officer, but that the deal was going sour. Slack informed Mr Cahill that the defendant had recently purchased the land at Lot 1, Hallam Valley Road, Dandenong, and that it wanted to sell part of the land, that part of the land which was still being used as a cow paddock, an area which had not been hard filled, but was grassed. Mr Cahill informed Slack that he was interested. The next day he inspected the land and shortly thereafter spoke with the proprietor of the defendant, Robert Lindsay McDowell.
On 17 September 1996 Mr Cahill and Mr McDowell met at the defendant's premises at Malvern. It is the case for the plaintiff that it was agreed at that meeting that the plaintiff would purchase from the defendant approximately two acres of the land. The price that was proposed to be paid by the plaintiff was $140,000. The land, of course, would require subdivision and Mr Cahill has sworn that it was agreed by the parties that the costs of the subdivision would be met 50/50 as between the plaintiff and the defendant.
Subsequently, Mr McDowell wrote on a copy of the title plan the notation, "$140,000 for 2 acres, Austral go halves subdivision costs", and the plan with that notation is now before me, being Exhibit KTC 1 to Mr Cahill's affidavit sworn 20 November last.
Steps were then taken to have the land sub-divided, but without success, basically because of the exorbitant costs of doing so. As Mr McDowell has sworn in paragraph 8 of his affidavit of 23 November 2001, in 1997, it was estimated that the costs of subdivision would be $175,000, having regard to the extensive capital works that would have been required by the appropriate authorities, together with the compulsory levies which were involved in such a subdivision.
At all events, no subdivision occurred in 1996 or 1997, and in August of 1998 Cahill Heavy Haulage Pty Ltd moved into occupation of the portion of the land it was to buy and thereafter carried out significant improvements on the land.
On 4 March 1997, the defendant's solicitors had sent a contract of sale in respect of the land. The contract shows the defendant as vendor and Cahill Nominees Pty Ltd or Kevin Cahill Nominees Pty Ltd as purchaser, although the word "Kevin" has been inserted in ink at some stage after the actual contract was typed.
The land referred to in the contract is described as Lot 1 on proposed plan of subdivision No.406907K and being part of the land described in Certificate of Title Volume 10230 Folio 166. The price is shown as $140,000. No deposit was payable under the contract. The residue, which would, of course, have been the whole of the purchase price, was to be paid on 15 April 1997, or 21 days after the approval of the plan of subdivision at the Land Titles Office, whichever occurs first.
The plaintiff did not execute the contract and on 9 April 1997 the defendant's solicitor sent a letter to the plaintiff's solicitor which reads:
"I refer to my letter of 22 March 1997 and would appreciate receipt of a contract of sale signed by your client. I advise that the plan of subdivision has now been lodged with the Land Titles Office".
The plaintiff, however, declined to sign the contract. That aspect is dealt with in paragraph 36 of Mr Cahill's affidavit, which reads:
"36.On 4 March 1997 Australs' then solicitor, Joseph Rose, forwarded to the plaintiff a contract of sale. I then sought advice from Mr Fletcher, a partner in the firm of Macpherson & Kelley. By letter dated 22 March 1997 Joseph Rose forwarded to Mr Fletcher a copy of the town planning permit. By further letter dated 9 April 1997 he advised that the plan of subdivision had now been lodged at the Land Titles Office. Also he sought receipt of a contract of sale signed by the plaintiff. However, Mr Fletcher advised that the contract of sale as forwarded ought not to be signed at that time as there were issues which he needed to clarify. For example, the name of the purchaser was incorrect. Also the payment of residual was either on 15 April 1997 or 21 days after the approval of the plan of subdivision in the Land Titles Office, whichever occurs first".
On 2 June 2000 the defendant's solicitors sent the following letter to Cahill Heavy Haulage Pty Ltd:
"Dear Sirs.
Re Austral Piling and Construction Pty Ltd proposed subdivision.
We act on behalf of Austral Piling and Construction Pty Ltd, the owners of the land upon which you conduct your business. We are instructed by our client that you entered into occupation of the premises with a view to the land being sub-divided and upon completion of the subdivision you entering into a contract with our client to purchase the land. It has now become evident that the costs of such subdivision are prohibitive as the requirements of the authorities would mean that substantial works would need to be carried out for the subdivision to be approved. Further, despite investigations or alternatives by yourselves, nothing has eventuated. Nor has any approval been obtained from the relevant authorities to such proposals. In view of the above, our client believes that it is not possible to proceed with the subdivision. However, our client is anxious that your occupation of the land be clarified and secured. Accordingly, our client is prepared to offer you a long term lease of up to 10 years with an option to renew for a further 10 years at a market rental to be determined by agreement or, failing agreement, by a valuer agreed between the parties or appointed by the President of the Real Estate Institute of Victoria. Our client recognizes the improvements that you have made to the land, but we note that no rental has been paid for the period that you have been in occupation of the premises, which we understand commenced in early 1997. We note that you did contribute to the rates for the year ending 30 June 1999 but that no contribution has been made for rates and outgoings for the current year. We are instructed by our client that it is anxious to regularise the position and, accordingly, the offer to grant a lease will remain open for a period of one month from the date hereof. If the offer is not accepted, our client will have no alternative but to require you to vacate the premises as it is clearly not possible for your ongoing occupation of the premises to continue without our client obtaining return on its investment.
Yours faithfully."
On 28 June 2000 the plaintiff's solicitors wrote to the defendant's solicitors a letter which contains the following paragraphs:
"Our client insists on proceeding with a subdivision. Our client does not propose to enter into any lease with your client in relation to the subject land."
On 7 August 2001 the defendant's solicitors served a demand for possession upon Kevin Cahill, Cahill Nominees Pty Ltd and Cahill Heavy Haulage Pty Ltd. The demand required that those three parties deliver up possession of the land to the defendant on or before the expiration of one month from the date of the demand, which actually was 3 August 2001.
On 3 September 2001, the plaintiff's solicitors sent a letter to the solicitors for the defendant which contained the following paragraphs:
"We note that our client received your client's notice for possession on or about 8 August 2001. Therefore we assume that no steps will be taken to act on the notice for possession before 8 September 2001. Should any steps be taken to the detriment of our client prior to 8 September 2001, and our client is forced to seek injunctive relief from the court against your client, we will produce this letter on the question of costs."
On 7 September 2001 the defendant's solicitors sent a letter to the plaintiff's solicitors which contained the following paragraphs:
"Our client is prepared to undertake and offers to undertake that, pending the commencement of the proceeding by your client by no later than 14 September 2001, at the hearing and determination of an interlocutory application to be filed by your client in the proceeding forthwith upon its commencement, our client will not, whether itself or by any of its servants or agents, act in any manner which
(a)interferes with or disturbs the possession or present use and occupation by your client of the land, or
(b)interferes with or disturbs the present enjoyment of your client of the land, or
(c)interferes with any of the services now being enjoyed by your client at the land.
In essence, our client's offer is that it will not disturb the status quo until your proceedings are commenced and the interlocutory application is determined by the court."
On 1 November 2000, Cahill Nominees Pty Ltd lodged a caveat in the Victorian Land Titles Office claiming an interest in the land "as purchaser under contract of sale from Austral Piling and Construction Pty Ltd dated 17 September 1996".
On 16 November last, the defendant entered the property and took possession of it.
Later that day, the plaintiff made an urgent application to the court seeking injunctive relief in the matter. Although the defendant was represented by counsel at the hearing, counsel was in no position to offer any real defence at that time to the plaintiff's application, although he did raise the question of delay in the making of the application as one of the grounds upon which the defendant would rely at the hearing of an application for interlocutory relief.
Accordingly, to preserve the status quo, I made orders that day restraining the defendant from entering the premises upon which the plaintiff was conducting its business as Cahill Heavy Haulage until this day. I also made orders restraining the defendant from in any manner obstructing or interfering with the conduct by the plaintiff of its business.
On 20 November, the plaintiff filed a writ in the court by which it seeks a declaration that the contract of 17 September 1996 was, and is, valid, subsisting and binding upon the defendant and an order that the defendant specifically perform its obligations under the terms of the contract and an injunction restraining the defendant from dealing or disposing with the allotment upon which the plaintiff is presently conducting its business or from entering on to the allotment or from obstructing or interfering with the proper conduct by the plaintiff of the business.
A summons seeking similar injunctive relief was filed in the court that same day, and it is that summons which is presently before me.
I have considered the material placed before the court by the parties including the numerous exhibits to the affidavits.
Having done so, I am not persuaded that there is a serious issue to be tried in this proceeding. I consider that it is strongly arguable that there was never any concluded agreement between the parties concerning the sale of the land. It would seem that the actual purchaser has never been identified. In that respect, I refer to the fact that, although Kevin Cahill Nominees Pty Ltd is the plaintiff, Cahill Nominees Pty Ltd is the corporate body which lodged the caveat on 1 November 2000, and much of the correspondence passing between the parties is directed to Cahill Heavy Haulage Pty Ltd. Indeed, when the defendant sought to have the plaintiff sign the contract in 1997, it was the plaintiff's own solicitor who advised the plaintiff or, more accurately, Mr Cahill, not to sign the contract because "there were issues which he needed to clarify", one of which being of course the actual identity of the purchaser.
Further, the costs of the proposed subdivision were quite unknown to the parties at the time Mr Cahill and Mr McDowell had their discussion on 17 September 1996. Nor was there any agreement as to the time at which the settlement of any such sale was to take place.
The fact is that, here we are, five years down the road, and there has still been no subdivision of the land, and the parties seem no nearer to achieving that end. Yet, the plaintiff has been in occupation of the land since August 1998 and has paid no rental in respect of its occupancy.
Indeed, is it the plaintiff that is in fact in occupation or is it Cahill Nominees Pty Ltd or is it Cahill Heavy Haulage Pty Ltd?
There is a further reason why I would refuse injunctive relief, and that is because of the delay which has occurred since the plaintiff was served with the demand for possession. That, as I have already pointed out, occurred on 7 August last. Thereafter, the defendant gave the plaintiff every opportunity to institute the proceeding it had threatened to institute seeking to enforce its claim, yet it failed to take any step towards doing that until the defendant regained possession of the land on 16 November last. Mr Cahill has proffered an explanation for the plaintiff's failure in that regard, citing matrimonial problems he has experienced over recent months. In the circumstances of this case, it is difficult to see how those problems could have over shadowed the immediate threat to either the plaintiff, Cahill Nominees Pty Ltd or Cahill Heavy Haulage Pty Ltd, following the service of the demand for possession.
It is a clear principle so far as the grant of injunctive relief is concerned that, where a party chooses not to avail itself of its rights but, rather, to sit back and take no step until it is literally forced to do so, in the absence of any satisfactory explanation for such behaviour, the courts will simply not grant injunctive relief.
If I could revert to one matter I overlooked mentioning when I spoke about whether or not there was ever any concluded contract between the parties, whoever those parties might have been. So far as the plaintiff's side of the equation is concerned, I meant to draw attention to the letter of 23 November 1999 from the defendant to Cahill Heavy Haulage Pty Ltd, which is Exhibit KTC 22 to Mr Cahill's affidavit.
The letter contains the following paragraphs which read:
"Attention Kevin Cahill.
Dear Kevin,
Proposed two lot Subdivision of Lot 1 Hallam Valley Road Hampton Park, and subsequent sale of Lot 1 of proposed plan of subdivision as per Plan of Subdivision PS 406907K.
Prior to proceeding with appropriate legal documentation to enable the subdivision and sale to proceed the following outstanding issues need to be agreed.
We have chosen to put these issues in writing to allow a clear cut agenda to be discussed and agreed.
Choice of Development Consultant
The proposed use of KLM Development Consultants needs to be agreed and a newly costed proposal obtained. Their attitude towards the alternative 'rainwater collection and wastewater treatment and disposal preliminary design' as proposed by J.E. Stronwell and Associates needs to be explored.
Use of Body Corporate
The use of a Body Corporate in order to take advantage of the KLM proposal of 16th July 1998 needs to be agreed. This will necessitate the re-drawing of the Plan of Subdivision to include a common property.
Joint Venture Agreement
The use of a formal Joint Venture Agreement to Subdivide, specifying that each party nominated in the Contract of Sale is responsible for 50% of the subdivision costs, needs to be agreed.
Contract of Sale
The name of the actual purchaser of the land needs to be clarified.
Contribution in lieu of Rental
An amount needs to be agreed to formalise the various conversations which have occurred between Robert McDowell and Kevin Cahill since the verbal agreement to this proposed sale. By way of a guideline a fair market rental for Lot 2, as occupied by Austral, was obtained from Jones Lang Wootton in May '98 at $17,500 per annum. Your contribution towards rates and taxes over this period would be offset against an agreed amount.
Pending the resolution of these matters your cheque for $15,000 (Fifteen thousand dollars) has been returned herewith.
Please advise myself when you have clarified your position on the various issues, and I will facilitate a joint discussion between yourself and Robert McDowell. It would probably be beneficial if you were to include Bernadette Cahill in the discussion to ensure that an accurate linkage to the KLM draft proposal is obtained.
Yours faithfully,
John M Angus
Business & Finance".
On its face, that would indicate, certainly so far as the defendant is concerned, that as at 23 November 1999 there was no concluded agreement between the parties in relation to the proposed sale of the proposed Lot 1. Indeed, the fact that there was no concluded agreement at that time would tend to be confirmed by the fact that the plaintiff's solicitors made no response to the letter. If it was their case as at that time that there had been a concluded agreement arrived at by the parties on 17 September 1996, one would have expected a reply to the letter along the lines of, "What on earth are you talking about? There is already a concluded agreement on foot between the parties".
Finally, I consider this to be no more than a commercial dispute between the parties. It is my opinion that if the plaintiff is ultimately successful at trial, it would be adequately compensated by an appropriate award of damages.
Accordingly, the summons filed in the court on 20 November 2001 will be dismissed with costs to be taxed, including reserved costs.
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