Kiama Development v Wilcox - [1999] NSWSC 3

CITATION: KIAMA DEVELOPMENT v WILCOX [1999] NSWSC 3

CURRENT JURISDICTION: EQUITY DIVISION

FILE NUMBER(S): 3483/98

HEARING DATE(S): 5 January 1999

JUDGMENT DATE:
5 January 1999

PARTIES :

KIAMA DEVELOPMENT CO PTY LTD v ROSSANA WILCOX & ORS

JUDGMENT OF: Bryson J at 1

COUNSEL : PLAINTIFF: DOUGLAS KNAGGS SOLICITOR
DEFENDANT: MR R J BROMWICH

SOLICITORS: PLAINTIFF: DOUGLAS KNAGGS SOLICITOR
DEFENDANT: MARTINS

CATCHWORDS: COURTS and JUDGES; PRACTICE and PROCEDURE; judgment reserved; fresh interlocutory application; on the facts the Court declined to re-open existing interlocutory restraints while judgment remained reserved.

ACTS CITED: Crown Lands Consolidation Act 1913 s226

DECISION: SEE PARAGRAPHS 15-18

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J

TUESDAY, 5 JANUARY 1999

3483/98
KIAMA DEVELOPMENT CO PTY LTD v ROSSANA WILCOX & ORS

JUDGMENT
1 HIS HONOUR : These proceedings relate to shop premises on the Kiama Harbour Wharf which the defendants have subleased from the plaintiffs.
2 The plaintiffs make many claims in the proceedings relating to allegations that the defendants have engaged in unfair conduct in trade, and they also claim to establish that there have been breaches of covenants of the sublease, and attack the defendants' entitlement to continue in possession. The proceedings went to trial before Young J, who reserved judgment on 2 December 1998 and has not yet determined the matter.
3 The defendants apply by notice of motion dated 24 December 1998, but not actually filed until today, for orders which would overcome some conduct of the plaintiffs in the period since judgment was reserved. Their claim is that the plaintiffs changed the locks on the defendants' shop premises and should restore the keys and should be restrained by injunction from changing the locks again or interfering with quiet enjoyment.
4 The application came before the court in circumstances of great urgency on 24 December and again on 29 December. Consent orders were made with effect for a short time, which required the plaintiffs to restore the keys and restrained them from changing the locks or interfering with quiet enjoyment, and after further adjournment on 29 December those arrangements have effect until today only.
5 The defendants' counsel's position is that the restraints in orders 2 and 3, that is the injunction, should be continued in effect until judgment is given by Young J, and he continues to offer the usual undertaking as to damages upon which the earlier orders were based.
6 The plaintiffs' solicitor's position, however, is that I should hear the notice of motion at length during vacation and should now give directions to bring that about.
7 The defendants' prima facie position in support of their having the interlocutory relief claimed is very strong. An interlocutory arrangement was made, recorded in a form of memorandum of agreement, during proceedings before Cohen J on 6 and 7 October 1998, which regulated what the parties were to do about possession pending decision of the case, on a basis which clearly shows that both parties were to continue in…

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: [1999] NSWSC 3
Decision Date: 5 January 1999

CaseChat Overview and Summary

Kiama Development, the plaintiff, brought a case against Wilcox, the defendant, regarding a dispute over the enforcement of certain contractual provisions. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the existing interlocutory restraints should be re-opened while the judgment remained reserved, following a fresh interlocutory application by the defendant.

The legal issues for the court to consider included the principles surrounding interlocutory applications and the appropriate circumstances under which a court may decide to modify or maintain existing restraints. The court needed to balance the rights and obligations of both parties, while considering the potential impact of the decision on the overall progress of the case. The court also had to examine the merits of the fresh application and assess whether it provided sufficient grounds to warrant a change in the existing restraints.

In its reasoning, the court held that on the facts presented, the existing interlocutory restraints should not be re-opened while the judgment remained reserved. The court found that the fresh application did not provide compelling reasons to alter the existing arrangements. It was noted that the case involved complex contractual disputes, and maintaining the status quo would ensure that the case could proceed in an orderly manner. The court emphasised the importance of allowing the judgment to be delivered before considering any further changes to the restraints. Ultimately, the court declined to re-open the existing interlocutory restraints until the judgment was handed down.

In light of the court's decision, no immediate orders were made to modify the existing restraints. The case will continue to be heard, with the final judgment to be reserved pending the outcome of the proceedings. The court's decision underscores the importance of maintaining procedural fairness and ensuring that the resolution of complex contractual disputes is conducted in an orderly and efficient manner.

Orders