Leese v Shire of Harvey
[2021] WASC 478
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: LEESE -v- SHIRE OF HARVEY [2021] WASC 478
CORAM: SMITH J
HEARD: 21 DECEMBER 2021
DELIVERED : 22 DECEMBER 2021
PUBLISHED : 22 DECEMBER 2021
FILE NO/S: CIV 2383 of 2021
BETWEEN: HAROLD LEESE
Plaintiff
AND
SHIRE OF HARVEY
First Defendant
BINNINGUP NOMINEES PTY LTD
Second Defendant
MIRVAC (WA) PTY LTD
Third Defendant
Catchwords:
Interlocutory injunction - Urgent application by plaintiff heard ex parte for prohibitory and mandatory injunctive orders - Whether serious question to be tried - No undertaking as to damages provided
Legislation:
Associations Incorporation Act 1987 (WA)
Planning and Development Act 2005 (WA), s 74(b)
Result:
Application for injunctive orders dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr BL Dawkins |
| First Defendant | : | |
| Second Defendant | : | |
| Third Defendant | : |
Solicitors:
| Plaintiff | : | Mr BL Dawkins |
| First Defendant | : | |
| Second Defendant | : | |
| Third Defendant | : |
Cases referred to in decision:
Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Kerridge v Foley [1968] 1 NSWR 628
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
National Bank Australia Ltd v Joyce [2012] WASC 224
Ooranya Pty Ltd v ISPT Pty Ltd [2018] WASC 256
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76
Theobold v Rebel Converting Pty Ltd [2008] WASC 85
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Wellard Land Holdings (WA) Pty Ltd v Barker Mortgages Pty Ltd [2018] WASC 27
SMITH J:
This is an ex parte application brought by summons by the plaintiff, Harold Leese for injunctive orders, the first is prohibitory, and the second is mandatory. The interlocutory orders sought by the plaintiff are as follows:
(a)to prohibit the first defendant, the Shire of Harvey, from voting to rescind Town Planning Scheme No 12 (TPS 12); and
(b)to appoint a nominated arbitrator under cl 7.5 of TPS 12.
After hearing counsel for the plaintiff, the application for injunctive orders was dismissed. I was not satisfied on the material before the court that the plaintiff had made out a prima facie case for interlocutory injunctive relief. In any event, no undertaking as to damages had been given by the plaintiff.
These are my reasons for dismissing the application.
Background
The writ of summons filed on 21 December 2021 incorrectly named the plaintiff's legal representative, Benjamin Letts Dawkins, as the plaintiff in these proceedings.[1]
[1] An order was made on 21 December 2021 to correct the name of the plaintiff.
The indorsement on the writ states that it is a representative action (brought pursuant to Order 18, rule 12 of the Rules of the Supreme Court 1971 (WA)) by Mr Leese. Mr Leese claims to apply on behalf of approximately 170 property owners who own land within the scheme area of TPS 12.
Mr Leese is aggrieved by:
(a) a proposal by the second defendant, Binningup Nominees Pty Ltd, to transfer Community Open Space Land to the Shire, and for the Shire to agree to the transfer to it of this land;
(b)a proposed resolution by the Shire to repeal TPS 12, which resolution is to be considered by the Shire Council at its meeting commencing at 4.00pm 21 December 2021; and
(c)a decision made by the Shire on 27 July 2021 to impose a 'specified area rate' on property owners within the TPS 12 scheme area for landscaping maintenance.
Limited material before the court was filed in support of the application for interlocutory orders.
Mr Leese in his affidavit in support of the application states as follows:[2]
[2] Affidavit of Harold Leese, sworn on 21 December 2021.
1.Shire of Harvey Town Planning Scheme12 was gazetted in GG no 98 dated 2/10/1987 at pages 3791 to 3794 inclusive see HL - 1 attached. The Scheme is a guided development scheme which sets out how the Lakewood Shores Golf Course Estate is to be developed. Key aspects of this are the 18-hole golf course, the management and ownership of the Community Open Space and arbitration rights under the Town Planning Scheme for individuals within the Estate.
2.During the period 2000 to 2020 I purchased 6 lots of land in the Golf Course Estate on the assumption that the Golf Course would remain. I still own 5 lots today including my own home.
3.On or around March 2020 the 9-hole golf course closed. I felt pain and loss when this happened.
4.On 28th July 2020 the Shire of Harvey voted to acquire Community Open Space lots promised to the Lakewood Shores Community (of which I am a part) under the Town Planning Scheme 12 - see attached HL 2.
5.On 27th July 2021 the Shire of Harvey approved the imposition of a Specified Area Rate payable by me on 5 lots. The rationale given for the Specified Area Rate was to recoup maintenance costs on the Community Open Space which the Town Planning Scheme requires must be paid by the Developer not the individual land owners - see attached HL - 3.
6.My pro bono Solicitor, Ben Dawkins has requested arbitration under the Town Planning Scheme from all other parties but this has not been agreed to by the other parties.
7.Ben Dawkins has also, as far as I am aware, tried to address these issues in SAT, including the Specified Area Rate, this has also been unsuccessful.
8.Tonight at 4pm the Shire will vote to rescind Town Planning Scheme 12 which I see as the abolition of all of my rights to enforce the liveability and amenity of the area in which I own multiple lots, an area myself, my children and my wife absolutely love living in.
TPS 12 came into effect on 18 August 1987 and provided for the subdivision and development of land in the scheme area known as Lakewood Shores Guided Development Scheme.
Part VI of TPS 12 provides for the development of an 18-hole golf course by the developer, and Part IV provides for a Community Association (which is defined in cl 1.7 as the Peppertree Lakes Community Association or any other name and incorporated under the Associations Incorporation Act 1987 (WA)) which, pursuant to cl 4.1 of TPS 12, is to take and hold the title to the estate in fee simple of Community Open Space Land in the scheme area. Clause 4.2.1 of TPS 12 also specifically provides that the title of the estate in fee simple in all Community Open Space Land shall be vested in the Community Association. Pursuant to cl 4.3.1, every owner of land within the scheme area has a responsibility to contribute to the cost of maintaining the areas of Community Open Space within the scheme area.
Despite the fact that TPS 12 has been in existence since 1987, it appears that the Community Open Space Land has not been transferred to the Community Association.
In minutes of the Council of the Shire dated 28 July 2020, it is recorded that:[3]
(a)the golf course remains the owner's responsibility and all public open space has been ceded to the Shire as recreation reserves;
(b)the Community Open Space was never transferred to the Community Association and has remained the responsibility of the owner. Further, it is understood the transfer did not occur due to the problematic scheme provisions associated with the collection and enforcement of levies and restriction of access;
(c)the Shire became aware in early April 2020 that the owner was ceasing the management of the Community Open Space and golf course;
(d)the owner no longer wishes to manage the Community Open Space and has offered to gift the land to the Shire;
(e)the Shire's draft 2020 - 2021 budget has listed for consideration an allocation of $20,000 towards the maintenance of the subject lots (Community Open Space).
[3] Affidavit of Harold Leese, sworn on 21 December 2021, Attachment HL 2.
In the minutes of the Council of the Shire dated 27 July 2021, it is recorded that motions were passed that:[4]
(a)the general rates for the Shire of Harvey for the 2021 - 2022 financial year would be 8.8742 cents in the $ on gross rental valuations and 0.5476 cents in the $ on unimproved valuations; and
(b)that there would be a number of specified area rates, which included a specified area rate for the Lakewood Shores Landscaping Maintenance of 1.1175 cents in the $ on gross rental valuations on properties within the Lakewood Shores Estate with the condition that Council conduct a community consultation with the ratepayers of Lakewood Shores Estate in the 2021 - 2022 year to consider if the rate should be ongoing.
[4] Affidavit of Harold Leese, sworn on 21 December 2021, Attachment HL 3.
Relevant principles - the grant of an interlocutory injunction
The principles in relation to interlocutory injunctions are well known, and were summarised by Beech J in Twinside Pty Ltd v Venetian Nominees Pty Ltd.[5] They are:[6]
(a)whether there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be entitled to relief;
(b)whether the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and
(c)whether the balance of convenience favours the granting of an injunction.
[5] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110.
[6] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [11].
The question of adequacy of damages is an aspect of the balance of convenience, not a separate requirement.[7]
[7] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [131] (Buss P, Murphy JA and Beech J).
Where a party is seeking in effect what is a mandatory injunction, no more stringent or different legal test is to be applied than that which is applicable in seeking a prohibitory injunction.[8]
[8] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [76] - [85] (Newnes JA; McLure P and Corboy J agreed); see also Ooranya Pty Ltd v ISPT Pty Ltd [2018] WASC 256 [85] (K Martin J).
In Mineralogy Pty Ltd v Sino Iron Pty Ltd, Newnes JA relevantly observed:[9]
The principles to be applied on an application for an interlocutory injunction are well-known and were not in dispute. The two main enquiries that arise are whether the plaintiff has made out a prima facie case and whether the balance of convenience favours the grant of the injunction. The first inquiry as to a 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks. The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. Whether an applicant for an interlocutory injunction has made out a sufficient prima facie case and whether the balance of convenience favours the grant of such relief are related, not independent, questions: Warner-Lambert Co LCC v Apotex Pty Ltd [2014] FCAFC 59 [70].
[9] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87] (Newnes JA; McLure P and Corboy J agreed).
Where a plaintiff seeks to invoke equity's auxiliary jurisdiction to protect what it says of its enjoyment of its rights in equity, the following principles apply:[10]
Where equity's jurisdiction is invoked in an application for an interlocutory injunction, it is necessary to identify the legal or equitable rights which are said to be determined at trial and in respect of which final relief is sought. The power to grant an interlocutory injunction is not to be exercised by reference to unconstrained notions of what appears to be just: it must be exercised by reference to the rights claimed by the applicant in the proceedings. The final relief itself need not be injunctive in nature in this connection: Lenah. An interlocutory injunction in the auxiliary jurisdiction can only lie in order to protect an equitable or legal right which the plaintiff might enforce by final judgment: Lenah. The usual form of the interlocutory injunction in this court is 'until after judgment in this action, or further order' The usual form of the order, as well as the purpose of the order, indicates that there is no 'free-standing' right to an interlocutory injunction: Lenah. The first question to be answered by the plaintiff in seeking an interlocutory injunction is, 'what is your equity?'
The parties to this appeal did not take issue with the observations made in Mineralogy Pty Ltd v Sino Iron Pty Ltd as to the general principles to be applied in the exercise of the power to grant an interlocutory injunction. Those observations proceed, at least implicitly, on the basis that the question of adequacy of damages is an aspect of the balance of convenience, not a separate requirement. We will also proceed on that basis. Three further points should, however, be observed. First, in an interlocutory injunction application in equity's exclusive jurisdiction, the question of whether damages or other remedies at law are adequate does not arise: Heavener v Loomes. Secondly, in equity's auxiliary jurisdiction, the question of whether the plaintiff will suffer irreparable injury for which damages will not be adequate compensation involves no more than a consideration of whether the injury cannot properly be compensated in damages, or by an order for accounts or some other interim remedy. The question of whether the injury cannot properly be compensated in damages involves a consideration of whether it is just in all the circumstances that the plaintiff be confined to their remedy in damages. See R v MacFarlane; Ex parte O'Flanagan and O'Kelly; Action Cycles Pty Ltd v Ross; Meagher, Gummow & Lehane. Thirdly, as the Full Court of the Federal Court observed in Samsung Electronics Company Ltd, in assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; whether those interests tend to favour the grant or refusal of an injunction in any given case depends upon the circumstances of the case; and hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive.
[10] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [130] - [131] (footnotes omitted).
Where a plaintiff seeks a mandatory injunction, the court must examine the form of the mandatory injunction sought, which may seek to do more than to establish the status quo. The court in these circumstances must look at the nature of the injunction sought by the plaintiff and the practical consequences of the orders sought.[11]
[11] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [12] (Beech J); see also Wellard Land Holdings (WA) Pty Ltd v Barker Mortgages Pty Ltd [2018] WASC 27 [9] (Chaney J).
In assessing the balance of convenience, it is ultimately a question as to what is the balance of the risk of injustice.[12] First of all, it is an established principle that a plaintiff must show sufficient likelihood of success to justify the status quo being preserved until trial. How strong the probability of success that a plaintiff must show depends upon the rights asserted by the plaintiff and the practical consequences that might flow from the orders the plaintiff seeks.[13]
[12] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [12] (Beech J); see also National Bank Australia Ltd v Joyce [2012] WASC 224 [43] (Edelman J).
[13][13] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 82 (Gummow & Hayne JJ); see also Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622 (Kitto, Taylor, Menzies & Owen JJ).
Edelman J pointed out in National Bank Australia Limited v Joyce:[14]
Although the purpose of interlocutory injunction is often said to be to preserve the status quo until the hearing of the main action and although the status quo is the situation immediately before the issue of the writ seeking the permanent injunction, it has also been emphasised that the status quo can be disturbed by an interlocutory injunction and that 'the truth of the matter is that no real principles can be laid down'.
[14] National Bank Australia Ltd v Joyce [2012] WASC 224 [88] applying the principle enunciated by M Leeming, R Meagher, D Heydon, Equity Doctrines and Remedies (4th ed, 2002) 774 - 775.
Prima face case for relief not made out
The indorsement of claim on the writ of summons claims that Mr Leese, among the other owners of the land within the scheme area of TPS 12, has a cause of action in proprietary estoppel as a beneficial owner of the Community Open Space. However, there is no right of title conferred by TPS 12 in respect of this land on individual owners. The only person who may be capable of making such a claim, the prospects of success of which I make no judgment about, is the Community Association incorporated under the Associations Incorporation Act 2015 (WA).
At the hearing of the application for urgent injunctive relief, counsel for the plaintiff made it clear to the court that he did not have instructions to act on behalf of the Community Association.
Although it appears that the Shire is to vote on a resolution to repeal TPS 12 on 21 December 2021, sometime after 4.00pm, a resolution to this effect does not itself effect repeal of the planning scheme.
Pursuant to s 74(b) of the Planning and Development Act 2005 (WA), a repeal of a local planning scheme takes effect once an instrument of repeal, prepared by the local government, is approved by the Minister, and published in the Gazette. Consequently, there is scope for representations to be made to the Minister, and for properly qualified advice to be obtained about whether it is open to challenge any decision made by the Shire on 21 December 2021, or any subsequent decision by the Minister, in the event, the Minister approves the repeal of TPS 12.
Although Mr Leese complains in his affidavit about the imposition of a specified area rate for landscaping on the basis that such rates must be paid by the developer of the land not individual landowners, there is nothing in TPS 12 that supports this proposition. To the contrary, there are provisions in TPS 12 that arguably require individual owners to pay for the maintenance of the Community Open Space.
Insofar as Mr Leese complains about the closure of a 9-hole golf course, in the absence of full argument on the issue in a trial of the action, there appears to be nothing in the scheme that prohibits the closure of this course. As to the requirement on the developer to develop an 18-hole golf course in TPS 12, there is insufficient evidentiary material before the court about this issue, and for the reasons I give below, in the absence of any undertaking as to damages, the balance of convenience does not favour making any ex parte injunctive order.
As to the mandatory arbitration order generally, there is insufficient evidential material before the court as to what would be the issues to be determined by an arbitrator. In any event, in submissions before the court, counsel for the plaintiff indicated that the Shire's legal representative had in fact indicated that the Shire was willing to engage in arbitration, and that the only real issue in dispute was who should be the arbitrator, which was a matter capable of agreement between the plaintiff and the Shire.
Undertaking as to damages
No undertaking as to damages has been given by the plaintiff. The giving of an undertaking as to damages is a very important, if not essential, means of preventing injustice before the rights of parties have been finally determined.[15] It is the price of the injunction.[16] However, there are cases where an undertaking is not required.[17]
[15] Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249, 311 (Gibbs J).
[16] Kerridge v Foley [1968] 1 NSWR 628, 630.
[17] See for example Theobold v Rebel Converting Pty Ltd [2008] WASC 85.
In the circumstances of this matter where the application is made ex parte, is purported to be a representative action, and concerns directly or indirectly the transfer of land, the absence of an undertaking weighs strongly against any injunctive orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
Associate to the Honourable Justice Smith
22 DECEMBER 2021
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