MADAFFARI & ANOR -v- LABENAI NOMINEES PTY LTD [2002] WASC 67

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 67
Published:	04/04/2002
Case No:	CIV:1271/2002	Heard:	22 MARCH 2002
Coram:	PULLIN J	Delivered:	22/03/02
No of pages:	8	Judgment Part:	1 of 1
Result:	Injunction granted
Category:	B
PDF Version

Parties:	ANGELO MADAFFARI RAINEE INVESTMENTS PTY LTD (ACN 094 975 658) LABENAI NOMINEES PTY LTD (ACN 008 848 744)
Catchwords:	Interlocutory injunction Turns on own facts
Legislation:	Nil
Case References:	Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Esther Investments Pty Ltd v Cherrywood Park Pty Ltd [1986] WAR 279 Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 Todd v Novotny [2001] WASC 171 Westbrook Holdings Pty Ltd v Roseramble Pty Ltd (1994) 13 WAR 273 Beswicke v Alner [1926] VLR 72 Mott v Mount Edon Goldmines (Australia) Ltd (1994) 12 ACSR 658 Total Marine Services Pty Ltd v Waller & Anor [2002] WASC 8

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MADAFFARI & ANOR -v- LABENAI NOMINEES PTY LTD [2002] WASC 67 CORAM : PULLIN J HEARD : 22 MARCH 2002 DELIVERED : 22 MARCH 2002 PUBLISHED : 4 APRIL 2002 FILE NO/S : CIV 1271 of 2002 BETWEEN : ANGELO MADAFFARI

RAINEE INVESTMENTS PTY LTD (ACN 094 975 658)

Plaintiffs

AND

LABENAI NOMINEES PTY LTD (ACN 008 848 744)

Defendant

Catchwords:

Interlocutory injunction - Turns on own facts

Legislation:

Nil

Result:

Injunction granted

(Page 2)

Category: B

Representation:

Counsel:

Plaintiffs : Mr I Weldon

Defendant : Mr A J Prentice

Solicitors:

Plaintiffs : Bruce Havilah & Associates

Defendant : Mossensons

Case(s) referred to in judgment(s):

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Esther Investments Pty Ltd v Cherrywood Park Pty Ltd [1986] WAR 279
Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49
Todd v Novotny [2001] WASC 171
Westbrook Holdings Pty Ltd v Roseramble Pty Ltd (1994) 13 WAR 273

Case(s) also cited:

Beswicke v Alner [1926] VLR 72
Mott v Mount Edon Goldmines (Australia) Ltd (1994) 12 ACSR 658
Total Marine Services Pty Ltd v Waller & Anor [2002] WASC 8

(Page 3)

1 PULLIN J: I have before me applications for injunctions by the plaintiffs and the defendant, details of which I will refer to later in these reasons. The defendant is the registered proprietor of land at 299 Victoria Road, Malaga. On the land, there is a building set up as an indoor sports centre. Pursuant to a lease dated 16 April 1997, an assignment of lease dated 15 July 2001, and a deed of variation of assignment dated 27 July 2001, the defendant leased the premises to the plaintiffs. The term was for 10 years with options, and at present the rent is $11,000, payable on the first of each…

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: [2002] WASC 67
Decision Date

CaseChat Overview and Summary

The case before the Supreme Court of Western Australia concerns an application for an interlocutory injunction in a dispute between Angelo Madaffari and Rainee Investments Pty Ltd (the plaintiffs) and Labenai Nominees Pty Ltd (the defendant). The plaintiffs are the lessees of a property owned by the defendant, which operates as an indoor sports centre. The dispute centres on the plaintiffs' suspension of rent payments due to alleged damage to the premises caused by leaks, and the defendant's subsequent demand for payment and threat of re-entry. The plaintiffs sought an injunction to prevent the defendant from re-entering or taking possession of the premises, while the defendant sought an injunction to allow it to retake possession. The court was required to decide whether there was a serious question to be tried regarding the plaintiffs' claims of damage and entitlement to suspend rent, and whether the balance of convenience favoured granting an injunction to either party.

The court found that there was a serious question to be tried regarding the plaintiffs' claims of damage to the premises and their entitlement to suspend rent. The court noted that while there was evidence of damage to the premises, the quantum of the rent suspension was a matter for the trial. The court also found that there was a serious prospect of the plaintiffs gaining relief against forfeiture, as they had an arguable basis for suspending payment. However, the court was not satisfied that the plaintiffs' undertaking as to damages was adequate to compensate the defendant if the plaintiffs' claim ultimately failed. Despite this, the court found that the balance of convenience favoured granting an injunction to the plaintiffs, as there was a greater risk of injustice if the injunction was not granted and the plaintiffs later succeeded in their claim.

The court granted an injunction to the plaintiffs, continuing it until 3 April 2002, and thereafter until trial or final determination, subject to the plaintiffs paying the defendant the moneys constituting the amount of rent and outgoings they had failed to pay since September 2001. The court also ordered that the plaintiffs pay the defendant the rent and outgoings due on the first day of each month thereafter, without deduction, and that the defendant had liberty to apply to discharge the injunction if the plaintiffs failed to pay the rent or outgoings. The court further ordered that the defendant file an undertaking to repay any moneys the court determined the plaintiffs were entitled to deduct pursuant to the lease provisions.

Orders