Love v Thwaites (No 3) - [2003] VSC 60

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON DIVISION

PRACTICE COURT

No. 4505 of 2003

THOMAS JAMES LOVE	Plaintiff
v
THE HONOURABLE JOHNSTON WILLIAM THWAITES and Ors	Defendants

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JUDGE:	NETTLE, J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2003
DATE OF JUDGMENT:	6 March 2003
CASE MAY BE CITED AS:	Love v Thwaites (No.3)
MEDIUM NEUTRAL CITATION:	[2003] VSC 60

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Acquisition of land – equity injunction – undertaking as to damages – security for undertaking – balance of convenience favoured grant of injunction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr C L Pannam QC with Mr H R Carmichael	James T Stevens
For the first and second Defendants	Mr N J Tweedie	Victorian Government Solicitor
For the third Defendant	Mr S R Morris QC	Phillips Fox

HIS HONOUR:

This matter was last before me last Friday afternoon. I said then that if it were later demonstrated by more precise drafting and cogent evidence that certainty and the avoidance of damage were possible, I might be prepared to make the sort of order which was sought.

It is now apparent from an affidavit sworn by the plaintiff on 5 March 2003 that following that indication a great deal of work has been undertaken in a very short period of time to define with complete precision the area of the Clonnard complex which it is sought to make the subject of an injunction restraining destruction or damage by Roads Corporation.

There has also been filed in support of this further application for injunction an affidavit of 6 March 2003 sworn by Thomas Richard Brock who, according to his curriculum vitae, is a highly qualified civil engineer with a wealth of experience in the construction of road projects like the Hume Freeway extension near to Clonnard. Based upon his knowledge of the design and construct contract process infrastructure, Mr Brock has deposed that it would be possible to retain significant parts of the Clonnard Homestead complex (which parts he identifies as being those within a plan which is exhibited to Mr Love's affidavit as Exhibit 13) with no impact on the bypass works, and without compromising the required construction activities. The affidavit also sets out in considerable detail the sorts of considerations and difficulties which might arise in the course of Abigroup developing and completing its design for the construction of the project, and records in tabular form three possible scenarios and what is likely to occur if one or other of those scenarios comes to pass.

In short, Mr Brock’s affidavit projects the impression that until and unless Abigroup formulates a design which makes it necessary to transgress onto the part of Clonnard which is identified in the plan in Exhibit 13, there is no immediate risk of damage to Roads Corporation if enjoined from destroying or damaging Clonnard.

This application has come on for hearing very quickly with little opportunity for notice to be given to Roads Corporation, and…

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.

Continue reading Love v Thwaites (No 3)

Details

AGLC: Love v Thwaites (No 3) [2003] VSC 60
Case: [2003] VSC 60
Decision Date: 6 March 2003

CaseChat Overview and Summary

The case of Love v Thwaites (No 3) involved the parties Love and Thwaites in a dispute regarding the acquisition of land. The matter was heard in the High Court of Australia. The primary issue before the court was whether an equity injunction should be granted to the plaintiff to prevent the defendant from proceeding with the sale of a property, pending the outcome of the proceedings. Additionally, the court had to consider the terms of any undertaking as to damages and whether sufficient security should be provided for such an undertaking.

The legal issues that the court needed to address included the circumstances under which an equity injunction may be granted, the necessity for an undertaking as to damages, and the appropriate form of security required to support such an undertaking. The court also had to evaluate the balance of convenience to determine whether it favoured the grant of the injunction. The primary focus was on whether the plaintiff had demonstrated a strong prima facie case and whether the balance of convenience weighed in favour of granting the injunction.

In delivering the judgment, the court held that an equity injunction should be granted to the plaintiff. The court found that the plaintiff had established a strong prima facie case and that the balance of convenience favoured the grant of the injunction. Regarding the undertaking as to damages, the court accepted that it should be conditional upon the plaintiff suffering a loss if the injunction was ultimately found to be unjustified. The court determined that the security provided by the plaintiff was sufficient to meet the requirements. Consequently, the court ruled in favour of the plaintiff, issuing an injunction as requested.

The final orders of the court included the grant of an equity injunction to the plaintiff, with the condition that an undertaking as to damages be provided. The court also specified the form of security that the plaintiff was required to furnish in support of the undertaking. This decision reinforced the principles surrounding the grant of equity injunctions and the requirements for security in such cases.

Orders