LSR Developments Pty Limited v K and M Developments Pty Limited

[2005] NSWSC 862

CITATION:	LSR Developments Pty Limited v K & M Developments Pty Limited [2005] NSWSC 862
HEARING DATE(S):	29/07/05
JUDGMENT DATE :	29 July 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Einstein J
DECISION:	Injunctive relief refused.

CATCHWORDS:	Interlocutory Injunction - Vendor - Purchaser
LEGISLATION CITED:	Conveyancing Act 1919 Real Property Act
CASES CITED:	Apple v Thompson (1983) 3 NSWLR 208 Lohar Corporation Pty Limited v Dibu Pty Limited (1976) 1 BPR 9177
PARTIES:	LSR Developments Pty Limited (Plaintiff) K & M Developments Pty Limited (Defendant)
FILE NUMBER(S):	SC 4086/05
COUNSEL:	Mr D Allen (Plaintiff) Mr MJ Cohen (Defendant)
SOLICITORS:	J Kekatos Lawyers (Plaintiff) D La Rosa, Izzo & Co Lawyers (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Einstein J

Friday 29 July 2005 ex tempore
Revised 29 August 2005

4086/05 LSR Developments Pty Limited v K & M Developments Pty Limited

JUDGMENT

1 There is before the Court an application for interlocutory relief pursued by LSR Developments Pty Limited [“the vendor”] against K & M Developments Pty Limited [“the purchaser”].

2 The amended notice of motion pursued by the purchaser seeks an injunction restraining the vendor from entering into a contract for the sale of land, being lots 12, 20, 30 and 42 in deposited plan 806499, deposited plan 843931, deposited plan 717374, deposited plan 733681 and deposited plan 843930, respectively.

3 The background to the proceedings as outlined in the many affidavits which have been filed is that the parties having executed a put and call option deed relating to the sale of the subject land back in late July 2003, the vendor exercised the put option available to it under the deed and on 3 February 2004 a form of contract for the sale of land in the 2000 edition was entered into and executed by the parties.

4 That contract was varied shortly thereafter and the position by 19 March 2004 was regulated by a deed of variation of that date and the contract as originally signed was, pursuant to the deed of variation, amended in handwriting.

5 Nothing turns on these inception events but it should be noted that the contract in its varied form [“the contract”] provided for a purchase price of $3,600,000 and payment of a deposit of $140,000. It should also be noted that the original date for completion of the 3 February 2004 contract before it was varied, was simply 42 days after the date of contract but the varied date, as agreed in the deed of variation of 19 March 2004 and as then handwritten into the contract, became 2 August 2004. As will appear from what follows, a great deal of the issues presently before the Court concern the communications between the parties in relation to completion dates.

6 There is a vast amount of evidence and a deal of it being contested as to exactly what occurred thereafter. It is not practicable on an occasion for an application for interlocutory relief for the Court to chronicle each of the events which occurred.

7 It is common ground that on an application for interlocutory relief a court cannot and will not determine disputed questions of fact. What the Court is about, on an application for interlocutory relief, is consideration of the degree of probability or likelihood of success necessary to sustain an interlocutory injunction, that being simply the likelihood of success which the Court thinks sufficient in the particular case to warrant preservation of the status quo. The guiding principle is that one looks at the question of the balance of convenience.

8 Having said that, it is convenient to note that insofar as there are conflicts on the affidavits which have been read, the Court infers that it is likely that at a final hearing the trial judge would be vastly assisted by the actual correspondence and communications in writing which passed between the parties or their respective solicitors where as here, there are many claims by the purchaser to have reached oral agreements of one type or another on particular occasions for particular expectations. Where there are, as here, many occasions where evidence is contested, the Court infers that the balance of probabilities will usually favour the version given by such deponent or witness as is most consistent with the documents of or at or about the time when disputed conversations are said to have taken place.

9 In my view that general touchstone being the materials in the affidavits here makes plain that the plaintiff, the purchaser, is likely to have considerable difficulty in persuading a court on the final hearing that the occasions in respect of which extensions are said to have been sought, and the terms in respect of which extensions are said to have been granted, in fact took place, either at all, or in the precise terms for which the plaintiff’s witnesses contend.

10 A short thumbnail sketch of some of the material before the Court includes the following:

· on 28 July 2004 the vendor, by their solicitor’s letter, confirmed that the vendor agreed to a completion date of 21 October 2004.

· on 28 October 2004 the vendor consented to the contract being completed on 13 December 2004, by their solicitor’s letter of 28 October 2004.

· on 1 February 2005 the vendor served a notice to complete the contract under cover of their instructing solicitor’s letter, which required completion on or before 3 pm on 18 February 2005.

· on 4 February 2005 the purchaser’s solicitors acknowledged receipt of the vendor’s notice to complete and advised that he had informed them that upon expiration of the notice to complete, the vendor was prepared to extend the settlement date by a further six weeks and sought clarification of that.

· on 8 February 2005 the vendor’s solicitors responded, advising that their client had not agreed to extend the settlement date.

· on 8 March 2005 a letter was sent by the vendor’s solicitors to the purchaser setting out some of the background facts, referring to extensions of time to complete sought by the purchasers in December and again in January and referring to a conversation which the vendor’s solicitor said occurred on 21 January 2005 wherein he said that a representative of the purchaser had telephoned him and requested to pay $2.1 million and the balance over a number of months, secured by second mortgage. The vendor’s solicitor said in his letter that he had advised that this was not agreed to. He said in his letter that on 21 January the purchaser had requested a further four to five weeks to obtain a further valuation and made the point that that also was not agreed to and that a notice to complete had been served dated 1 February providing for completion by 18 February, which completion had not taken place. He then added:

“Our client feels he has been patient enough. Completion should have taken place but for ... numerous extensions ... and the price has been lowered $600,000 without any legal liability issue. The vendor has now instructed us to terminate this contract with you. Notice of termination will be sent to you later this week.”

11 On 21 March 2005 the vendor served a notice of termination of the contract. On 21 March 2005 the purchaser purported to lodge caveat number AB361245Y upon the title. That caveat purported to indicate as a legal and equitable interest, “Contract for sale of land dated 2 March 2005.” Plainly that date was incorrect and it does not seem that there is any evidence of how it could have been that the caveat claimed that form of interest. Arguably this was simply a mistake by someone in propounding the caveat.

12 The vendor gave notice of lapsing to the plaintiff in respect to that caveat and on 24 April 2005 that first caveat lapsed by operation of the vendor’s application and without any application being made by the purchaser to the Court for an extension of its operation.

13 Notwithstanding the provisions of s 74 O of the Real Property Act which deals with further caveats having no effect without Court order, the purpose of the section being to prevent persons lodging a succession of bad caveats, this purchaser went about lodging a further caveat in exactly the same form and that caveat was lodged on 10 June 2005.

14 The vendor notified the purchaser that this amounted to an abuse of process and sought removal of the caveat.

15 On 1 July 2005 the Registrar General wrote to the purchaser, notifying that unless an order of a court or notice of the registered proprietor’s consent to the second caveat was received within a nominated time, the caveat would be lapsed and the Court has been informed that the caveat is no longer on foot, it being believed that the caveat was withdrawn on or about 27 July, two days ago.

16 In the chronology which I have given up to this point in time it has been unnecessary to refer to the detailed affidavit evidence filed by the respective deponents concerning conversations and denials of conversations about agreed extensions. As I have said, it is unnecessary to chronicle all that in detail but a few examples may suffice.

17 Mr Pasquale Cannizzaro on 26 July 2005 in his affidavit deposed that at some time after he ascertained that there had been a notice to complete issued (which presumably is a reference to some time after 1 February 2005), he had a meeting with a solicitor, the solicitor for the vendor and Mr Zanardo, a director of the vendor. Mr Cannizzaro has deposed that he said he needed an extension of the settlement. He needed up to six to twelve weeks and that Mr Zanardo said, “We can probably go to six weeks” and that he said, “Six weeks is really not enough but if that is what it is, we will start with that,” and that Mr Zanardo had said, “Six weeks at this stage.” That evidence is denied by the solicitor, Mr Izzo, and it is denied also by Mr Zanardo.

18 A later occasion where there is a difference of recollection concerns Mr Cannizzaro’s evidence of a conversation of 18 April 2005 which he says he had with Mr Zanardo set out in paragraph 9 of his affidavit. His version of it was that Mr Zanardo had abused him for lodging the caveat, that he had said, “I put it on to protect my interest” and that Mr Zanardo had said, “I have been losing money on the property. I have lost interest.” Mr Cannizzaro then deposes that he said that the best he could do would be, “to give you $50,000 to cover some of the money you have lost. That won’t come off the purchase price,” and that Mr Zanardo had said, “That does not cover all of the interest” but that he said, “This is the best I can do. I need extra time with the CC and I will have a bank cheque by Friday” and that Mr Zanardo said, “Okay.”

19 Mr Zanardo, in relation to that particular conversation, gives evidence that he denies so much of the conversation as includes that he said “Okay” to the proposition which was put to him. On his evidence he said he would have to speak to his solicitor.

20 In any event, there is no dispute between the parties but that in fact an additional $50,000 was actually paid to the vendors on or about this occasion. An indication of the contemporaneous documentary evidence is to be found in the letter from the vendor’s solicitors to the purchaser’s solicitors of 21 April 2005, only a few days thereafter, responding to a letter of 19 April from the purchaser’s solicitors. The vendor’s solicitors curtly said:

“Our client has agreed to allow your client to complete the contract with our client as if it had not been terminated, strictly on the following conditions:

(a) Your client pay by way of additional consideration a sum of $50,000 representing interest our client has lost by way of bank cheque at the latest by 4 pm tomorrow, 22 April.

(b) Your client complete on or before 20 May 2005, time to be of the essence.

(c) The lapsing notice be allowed to lapse.

(d) If the completion does not take place by 20 May the $50,000 and all other moneys paid by your client are forfeited.

If your client agrees to all these conditions please confirm in writing and let us have a bank cheque for $50,000 by tomorrow at 4 pm. No variation to these conditions will be entertained.”

21 The balance of Mr Cannizzaro’s affidavit of 26 July includes other alleged conversations and other alleged claims to being offered extensions of time.

22 In relation to the issue of the amount of the deposit which was actually paid and released to the vendor on the occasion of the contract for sale originally being entered into, it seems that an amount was either $240,000 or $250,000 and the respective instructing solicitors have not been able to be contacted sufficiently quickly to determine that issue. Nothing on this interlocutory application will really turn on whether it is $240,000 or $250,000, the Court being confident that the parties will be able shortly to indicate exactly what the precise amount was.

23 I turn then to the questions of principle and applications of principle which arise. In approaching an interlocutory application, the principles which govern the Court’s approach to the question are those generally dealt with and set out in Apple v Thompson (1983) 3 NSWLR 208.

24 Importantly, the degree of probability or likelihood of success to be demonstrated is that which the Court thinks sufficient in the particular case to warrant consideration of where the balance of convenience lies. Lord Diplock in American Cyanide said:

“My Lords, when application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff’s legal right is made upon contestant facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when “x” hypothesises the existence of the right or the violation of it or both is uncertain and will remain uncertain until final judgment is given in the action.

It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction. But since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff has not been entitled to restrain the defendant from doing what he was proposing(?) to do. The object of the interlocutory injunction is to protect the plaintiff from ... ... any damages recoverable in the action if the uncertainty was resolved in his favour at the trial, but the plaintiff’s need for such a protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial.”

25 Turning next to the prima facie or serious case issue, to my mind on the evidence presently before the Court, it being clear as I have said that the Court cannot decide disputed questions of fact, nonetheless it has to be said that the purchaser cannot be said to have a strong case. Whether the purchaser’s case is sufficient to justify the description ‘serious and not speculative case’ or ‘real possibility of ultimate success’ is a difficult question to answer but doing the best that I can in terms of all of the materials which are presently before the Court, to my mind it could not be said in this case that the purchaser in these circumstances has a serious or particularly strong case. To say that the purchaser has no case would be impossible because it is not presently known which witnesses may or may not be ultimately believed.

26 More importantly these applications are usually determined by the balance of convenience and the question of hardship and it is to that matter that I now turn.

27 The evidence generally before the Court is to the effect that the purchaser has spent a large sum in and in relation to obtaining various development approvals which are apparently, however, personal to the applicant. Further, the evidence is, as I have said, that the purchaser has paid to the vendor and released to the vendor whatever the deposit actually was, $240,000 or $250,000, as well as the other $50,000 amount which, it seems to me on the balance of probabilities, was not paid as a deposit but as some sort of acknowledgement that the vendor had suffered loss by reason of the many and continued failures of the purchaser to complete.

28 The vendor, inter alia, relies upon the question of the bona fides of the purchaser. In the purchaser’s evidence there is a sentence in Mr Cannizzaro’s affidavit of 26 July 2005, para 19, which reads, “The plaintiff is able to complete the contract.” In relation to that sentence, the vendor issued a notice to the purchaser to produce all documents, letters of offer, commitment, lender’s offers of finance or other binding commitments by commercial lenders or other lenders or other providers of financial accommodation which formed the basis for that evidence in that sentence.

29 The response to that notice to produce (which has been MFI D1) includes two relevant documents, one dated 26 May from Secured Mortgage to Mr Poulos, purporting to be an offer subject to all sorts of conditions but inviting an acceptance and the offer is not accepted. It had a provision for signature which has not been executed. The other document produced is one from, we will call it Kingsford, N & L Financial Services. It has a date, 28 July, and it confirms a request for a loan of $700,000 and requires various guarantees and the like, including mortgages.

30 It has to be said at once that this answer to the notice to produce strongly suggests that the purchaser has not had or endeavoured to have, during the pendency of the contract, arrangements for the purposes of being in a position to meet the purchase price here. There was only limited evidence given in terms of an endeavour to prove that the purchaser has real substance in terms of the amounts here being referred to. Such material as there is in the evidence in relation to the purchaser’s financial wherewithal is entirely insufficient to satisfy the Court, on the interlocutory application, that this is an entity which either has itself or has made concerted attempts to and been in a position to set up a circumstance to permit it to complete as and when required.

31 The position in terms of the balance of convenience from the vendor’s side of the Bar table is somewhat awkward. The matter is squarely outlined in the affidavit by Mr Izzo of 29 July 2005.

“3. In October 2004 the plaintiff obtained a development approval from the Sutherland Shire Council after litigation in the Land & Environment Court.

4. After the Development Approval had been granted the plaintiff was required to obtain a construction certificate (“CC”). The CC contains the technical aspects of the development and had to be obtained after the Development Approval. I am informed by Greg Catterin, Surveyor engaged by the plaintiff, that the CC will be issued by Sutherland Shire Council within the next few weeks.

5. The plaintiff has spent over $250,000 obtaining the Development Consent and the CC.

6. Exhibited hereto and marked “PC 2” is correspondence between the parties from 21 July 2004 to the commencement of these proceedings.

7. I refer to PC 2- 13 . I do not recall when I found out that there was a notice to complete. After I found out I had a meeting with John Izzo and Nat Zanardo at Nat Zanardo’s car yard on Canterbury Road, Canterbury.


I said, “I need an extension of the settlement, I need up to 6 to 12 weeks.”
Zanardo said, "We could probably go to 6 weeks.”

I said, “6 weeks is really not enough, but if that is what it is we will start with that.”

Zanardo said “6 weeks at this stage.”


8. I refer to PC 2-21. I did not accept the termination. . I thought the plaintiff still had a contract with the defendant. I continued with the application for a CC. I then had a caveat lodged over the property.

9. On 18 April 2005 I had a conversation with Nat Zanardo. He telephoned me and abused me for lodging the caveat.


After that I said, “I put it on to protect my interest.”

He then said, “I have been losing money on the property. I have lost interest”
I said, “The best I can do is to give you $50,000 to cover some of the money you have lost. That won’t come off the purchase price.”
He said, “That doesn’t cover all of the interest.”
I said, “This is the best I can do, I will have a bank cheque by Friday and I need extra time for the CC.”
He said, “Okay.”


10. The plaintiff then paid $50,000 to the defendant.

11. On 24 May 2005 I telephoned John Izzo and said to him, “I need extra time for the CC and after that to get the finance in place.”


He said, “We will give you the extra time about 4 weeks, but this will probably be the last.”

I said, “Hopefully the CC should be out by then and we can settle.’

He said “Okay”


12. I refer to PC2-30. During the conversation with John Izzo neither of us mentioned 7 June 2005.

13. On 10 June 2005 I had lodged a second caveat on the property.

14. On 12 June 2005 I received a telephone call from John Izzo complaining about the second caveat. I said to him, “I will tell Jim to withdraw it I know that it was lodged but I thought it had been withdrawn.”

15. On 16 June 2005 I was telephoned by Nat Zanardo who complained about the second caveat. He did not say to me words to the effect, “That is the end of the sale to LSR Developments.”


I did say, “I need more time for the CC, we are almost there. We need the extra time.”

He said, “I am not happy with it, I am disappointed in you.”

I said, ` “We are almost there, just bear with me and we will definitely settle on the property.”

He said, “I will talk to John Izzo. It is up to him. Whatever John wants to do he does.”

16. On 23 June 2005 I had a conversation with Nat Zanardo. I telephoned him and said,


“We need some extra time to complete as the Council has not released the CC yet.”

He said, “We have been going through this since last year and time is running out. I have someone else to buy the property but I want you to have the land as you have spent so much money and been going this whole time.”

I said, “I need at least 4 to 6 weeks to get the CC from Council, it is beyond my control I need the extension until issue of the CC.”

He said, “We have been going around in circles and circles since we have exchanged.”

I said, “Look I am prepared to pay an extra $250,000 at the end of the development which compensates you for loss of interest etc.”

He said, “I am happy to help you out, but it will be up to John Izzo.”

I said, ‘Okay.”

He said, “I want the for sale signs removed.”

I said , “Remove what? There are no ‘ for sale signs’.”

He said “Okay”

There was no mention of the need to remove the caveat.

17. Nat Zanardo telephoned me back the next day.

He said, “We agree to the extension.”

I said, “Thank you, I appreciate it.”
18. On 18 July I had a conversation with John Izzo. I telephoned him. I had the phone on loud speaker. Sonia Bandel was with me.

I said, “We are still having trouble with the CC it should have been out on Friday, Council has been messing us around and I need the time till the CC is approved.”

He said, “I cannot do anything for you.”

I said, “Look, my surveyor says it should be out in 14 days. The Council has given my surveyor 14 days to comply with the 11 points, so I need that time.”

The conversation continued and then I said

“I don’t need one week, I don’t need two weeks, I need the time until the CC is approved. That is what I need.”

He said, “I can give you two weeks.”

I said, “John I need time until the CC is approved, not the two weeks, otherwise we are going around in circles.”

He said, “Then Okay we will give you the time until the CC is approved and can you settle straight away.”

I said, “How are you going to settle straight away. We need at least 14 to 21 days for the documents for the finance to be finalized.”

He was silent for a while and said, “Okay”

I said, “About the $250,000 extra we have promised that is to be delivered after the development is completed and there is no way around it.”


19. The plaintiff is able to complete the contract. “

32 The matters to which Mr Izzo has deposed can be understood. The extent to which the exercise of the Court’s discretion can take into account those matters is entirely another matter. The defendant is a corporate entity and quite likely the principled approach to these discretionary matters is to note them but to give them, if any, not major weight in this application.

33 What then is the principled exercise of the Court’s present discretion? The amended summons does seek a declaration that the purchaser is entitled to the return of moneys paid pursuant to the contract in equity or pursuant to s 55(2)A of the Conveyancing Act 1919. One of the matters which seemed to me to be of relevance was whether or not the vendor was in a position to obtain instructions to pay into Court the whole of the moneys which had been paid by the purchaser up to this point in time, to be held pending the final resolution of the proceedings and in particular the s 55(2)A Conveyancing Act application.

34 For the reasons given in Mr Izzo’s affidavit, it appears that the vendor is unable to give any such undertaking to the Court and that these funds are effectively locked up by reference to the forms of security which have had to, in the circumstances described by Mr Izzo, be provided to the administrator or Public Trustee to hold on account of the interests of these infant children.

35 Another parameter of the hearing concerns the open offer made in court which, for the purposes of identification, is marked exhibit P2. That is an offer by the defendant, without admission of any liability in respect of the matters in dispute in the proceedings, which reads as follows:

“1. The defendant forthwith will complete the contract for sale of land - and it is identified.

2. Completion of the contract of sale will occur pursuant to the terms of the notice to complete dated 1 February 2005 as contained within annexure L to Mr Izzo’s 26 July affidavit, save that the time required thereby for the payment of the balance of purchase moneys shall be extended to midday on 5 August 2005.”

36 I interpolate that during the course of argument from the Bar table the question has been raised as to whether or not the notice of termination in terms of a prima facie case is, on the balance of probabilities, likely to have been held to have been valid back on 21 March 2005 and alternatively, whether or not by reason of some of the inter-parties’ communications.

37 Notwithstanding that, as I see it, the balance of probabilities does favour an ultimate finding that the notice of termination of March 2005 was valid, whether or not the later communications amount to some form of further agreement. My own view is that it is extremely unlikely, on the balance of probabilities, that on the evidence a court, on a final hearing, would hold that there is an extant contract. More likely the offers which have been made, including the one now the subject of the open offer, fall into the category of a situation described by Glass JA in Lohar Corporation Pty Limited v DibuPty Limited (1976) 1 BPR 9177 where a notice to complete having been given, a purchaser not having completed, thereafter the vendor having given the purchaser a notice claiming that without prejudice to the continued assertion that the contract was at an end, the enclosed notice to complete was held to have been given on the basis that if the notice to complete be complied with and the purchaser turned up at settlement and settlement took place, the content of the offer amounted to an offer to start up again on the same terms. That is likely, it seems to me as a matter of legal evidence, what this defendant’s open offer now in evidence amounts to.

38 To my mind the clear balance of convenience here is to refuse the application for injunctive relief sought by the plaintiff, provided that the vendor is in a position to extend its open offer or vary it by giving to the purchaser not one week in which to complete but three weeks in which to complete. The whole of the background of the matter suggests that this is a circumstance in which, on the balance of probabilities, a Court on a final hearing will find that the purchaser has been stringing the vendor along, arguably the purchaser having its own difficulties in terms of trying to obtain development consents and finance but nonetheless simply not being in a position to fairly treat the contractual commitment that it entered into.

39 The nature of the current open offer, if varied in the fashion to which I have referred, is a last chance, in colloquial terms, for this particular purchaser to retain the possibility of acquiring this property on a contract for sale. Where the purchaser has complained at the steps apparently being taken or about to be taken by the vendor to endeavour to resell, that form of complaint in terms of real merit and balance of convenience ultimately has really very little weight if, in a circumstance such as a contested interlocutory injunction, the amount of funding paid by the parties to their solicitors in terms of the interlocutory application be taken into account.

40 In all the circumstances the holding is that conditional upon the defendant extending its open offer in the fashion to which I have indicated, the proper exercise of the Court’s discretion is to dismiss the application made in the amended notice of motion for the injunction in paragraph 5. I apprehend that the position from the Bar table is that it will be necessary for the defendant to obtain instructions on extending that offer and for those reasons it is inappropriate for me presently to make any order. In the event that the instructions do come forward, I can make an order. If they do not come forward, I will have to determine the fate of the injunction.

(Mr Cohen indicated he had instructions to give an undertaking in the terms contemplated by his Honour in the reasons for judgment and that undertaking was offered to the Court.)

41 In those circumstances, the current position being that the purchaser has accepted the necessity for it to extend the open offer for a three-week period, the orders of the Court are as follows:

1. The Court notes that K & M Developments Pty Limited, by its counsel, has given an undertaking to the Court to vary its open offer made today in court by altering so much of paragraph 2 of that offer as referred to “Friday 5 August 2005” and in its place inserting “Friday 19 August 2005”.

2. I dismiss the amended notice of motion insofar as it seeks an order pursuant to paragraph 5 thereof.

42 The issue of costs has arisen. The purchaser’s counsel has submitted that the appropriate order is that the Court reserve costs pending the final hearing of the proceedings. In my view the position is quite clear. The principled exercise of the Court’s discretion in relation to costs is to order that the plaintiff pay the defendant’s costs of and occasioned by the motion and I so order.

43 I have taken into account in the consideration of the balance of convenience, the question of the likelihood that the proceedings could receive an early final hearing and, more importantly, that the parties’ legal rights in relation to the contract could be identified shortly.

44 The parties have applied for expedition to the Expedition List judge and that application is to come before that judge next week. While of course the Equity duty judge cannot telegraph what the position as to the expedition judge’s list may be, the past history suggests that it would be extraordinarily unlikely to find that a purchaser/vendor suit such as this would receive expedition of an immediacy nature. Even if somehow, through expedition or settlement, these proceedings were able to be given for example a hearing date before the end of this year or the commencement of next year, one then has to keep in mind the time in which the first instance judge would take to produce a judgment and then one would also have to factor in the possibilities of an appeal and the amount of time it would take for the matter to get to the Court of Appeal and the amount of time before the Judge could deliver a judgment. None of that seems to me to augur well in terms of any suggestion that the pendency of the injunction, had it been granted, would have been of a reasonably limited or short time.

I certify that paragraphs 1 - 44
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 29 July 2005 and
revised 29 August 2005

___________________
Susan Piggott
Associate

29 August 2005