Littore v Rabobank Australia Limited
[2016] NSWLEC 37
•19 February 2016
Land and Environment Court
New South Wales
Medium Neutral Citation: Littore and Anor v Rabobank Australia Limited and Ors [2016] NSWLEC 37 Hearing dates: 17 and 19 February 2016 Date of orders: 19 February 2016 Decision date: 19 February 2016 Jurisdiction: Class 2 Before: Moore J Decision: See [15]
Catchwords: INJUNCTION – interim injunction granted ex parte – further consideration of whether the injunction should be continued – appropriate remedy in damages available – injunction discharged Legislation Cited: Water Management Act 2000 Category: Procedural and other rulings Parties: David Littore (First Applicant)
Vincent Littore (Second Applicant)
Rabobank Australia Limited (First Respondent)
Stewart McCallum (Second Respondent)
Ryan Eagle (Third Respondent)
John Hart (Fourth Respondent)Representation: Counsel:
Solicitors:
Mr M Astill, barrister (Applicants)
Mr E Muston SC (First to Fourth Respondents)
Robert James Lawyers (Applicant)
Minter Ellison (First to Fourth Respondents)
File Number(s): 20115 of 2016 Publication restriction: No
EXTEMPORE Judgment
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HIS HONOUR: Earlier this week I dealt with an urgent ex parte application brought on behalf of the applicants in these proceedings seeking a restraining order to prevent the first to fourth respondents to the Notice of Motion from dealing with six water access licences granted under the Water Management Act 2000 (the Water Management Act) as a result of failure to set aside default notices that had been served pursuant to s 71X(1) of that Act.
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On that occasion, I was satisfied, on the basis of the material put to me by Mr Eastman of counsel for the Applicants on that occasion in these Class 2 proceedings, that it was appropriate to issue an interim restraining order.
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I also indicated that, consistent with the requirements of the Court's Practice Note for Urgent Applications under the circumstances, although Mr Eastman did not have any affidavit evidence and was obliged to provide me with information given to him on proper instructions, as I observed during the course of the proceedings, I would proceed to deal with the matter in the absence of that evidentiary material.
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I did however indicate that it was appropriate to permit the existence of such a restraint only for a short period of time in order to enable a further examination of it.
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I now have before me an affidavit of Vincent John Littore filed in Court this morning, dated 18 February 2016, which sets out a wide range of matters, some of which have been objected to by Mr Muston SC, senior counsel for the First to Fourth Respondents, but which objections I rejected. I indicated I would deal with the objected matters as to questions of what weight should be given to them in my determination as to whether or not I should continue the interim injunction for a further short period of time - having indicated that a judge would be available in the middle of next week if I were to do so.
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I have considered the material and the submissions that have been made, together with the authorities to which I have been taken. I am prepared, for the purposes of what follows, to assume that the first of the tests that I am obliged to consider sequentially in determining whether to continue the injunction - that is, whether there is a serious question to be tried - taking Mr Littore's affidavit material, is able to be satisfied by virtue of the terms of paras 6(i) and 7 and 8 and 9 of a letter from Minter Ellison, Mr Muston's instructing solicitors, dated 8 December 2015, to the Littores' legal representative.
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I indicate that, for the purposes of what I am now saying, I am taking that at its highest in order to turn to the next question - that is, the question of whether or not damages provide an adequate remedy that would still remain available to the Messrs Littore if the water licences that are the subject of this application were permitted to be transferred.
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It is in this context that there are two matters of relevance. The first is the existence, in s 71X(6) of the Water Management Act, of a statutory right to seek compensation if, as is here asserted, the security holder has failed to take all reasonable steps to secure the highest possible amount by sale, that being one of the obligations of the security holder under s 71X(1)(e) of that Act.
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There is no doubt that that statutory right exists and indeed, although it was not disclosed to me by Mr Eastman - and I make no criticism of him in making this observation, as he was here before me on short notice and on limited instructions - proceedings in Class 3 of the Court's jurisdiction, being matter 16/30116, were commenced, as can be seen from the number of these proceedings being 16/30115, in effect simultaneously with the proceedings in Class 2 seeking the relief pursuant to s 71X(6), that is, to order that the licences not be transferred.
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There is no reason, based on the other material that is before me contained in Exhibits 2 and 3 tendered by Mr Muston on behalf of the first to fourth respondents, that would cause me to be satisfied that there is not an adequate remedy in damages.
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This is revealed in my assessment by the confirmation contained in para 22 of Mr Littore's affidavit. Mr Littore's affidavit asserts that he believes that the highest bidder submitting an expression of interest for the vineyard assets was $33 million, that is, some several million dollars, in his expectation, higher than that which is the understood sale price of $31 million, subject to adjustment.
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Whilst, at the conclusion of Mr Muston's submissions, there was some discussion about what might be the total realisable value (and he postulated it might be higher as a consequence of Mr Eastman informing me that the water licences comprised approximately 70% of the assets of the vineyard parcel and I concurred), a further reading of para 22 of Mr Littore's affidavit makes it clear that the $31 million is for the totality of the vineyard assets - being land and water licences, as a package - so that whatever might be the alleged deficiency by virtue of the breach of s 71X(1)(e), the amount that is in dispute is some $2 million.
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There is, as a consequence of it dealing with the totality of the vineyard assets, no possibility of realisation of any greater amount than that $2 million or so, the evidence contained in Exhibit 2 demonstrating that the indebtedness as at 23 July 2012 with respect to some of the water licences - and only some of them - was of the order of $88 million.
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I am satisfied, on the question of whether or not damages provide an adequate remedy, that the answer to that question should be in the affirmative and that there is therefore no proper basis to continue the restraining order.
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It seems to me therefore that the orders of the Court must be:
The order made by Moore J on 17 February 2016, being order (3) of those orders, restraining the transfer of Water Access Licences 5232, 9315, 9316, 30005 and 3715 is discharged; and
That the Amended Notice of Motion (for which amendment was permitted on 17 February 2016) is dismissed.
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Decision last updated: 07 April 2016
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