Madison Lifestyle Communities Pty Limited v Land Development Agency

[2005] ACTSC 37

Madison Lifestyle Communities Pty Limited v Land Development Agency
[2005] ACTSC 37 (8 April 2005)

Ex Tempore Judgment

No. SC 182 of 2005

Judge:  Higgins CJ
Supreme Court of the ACT
Date:            8 April 2005

IN THE SUPREME COURT OF THE  )
  )  No. SC 182 of 2005
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:MADISON LIFESTYLE COMMUNITIES PTY LIMITED ACN 101 149 759

Plaintiff

AND:LAND DEVELOPMENT AGENCY

Defendant

ORDER

Judge:  Higgins CJ
Date:  8 April 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. Application for interim injunction refused.

1. Undertaking as to entering into contracts is discharged

1. Costs reserved.

1. For reasons I do not intend to elaborate upon, as I am not going to go into the issues which are involved in the case, I will simply say that there do seem to be arguable propositions which the plaintiff could advance which might lead to a favourable decision on the question as to whether there has been a breach of at least an agreement that might be inferred from the terms of the invitation to tender and the surrounding correspondence. 

1. I will say no more than that at this point.  It would be inappropriate I think to do so.  It does not mean that any of those points are unanswerable but it certainly does not mean that they are unarguable. 

1. The real question is to balance the several questions that then arise. First of all, are damages a sufficient remedy?  Secondly, how to balance the public interest between the convenience to the defendant in having this project brought through to fruition, with the inconvenience done to the plaintiff and, of course, one must always count the successful tenderer, as well, as being a person whose interests are potentially affected. 

1. The matter urged by Mr Flick is important too, and that is the vindication of public tender processes and their fairness.  In my opinion, there is nothing which has been indicated which suggests that damages are not readily assessable in the circumstances if a breach is made out. 

1. There is a strong public interest in the completion of the proposed facility if it is to be erected in a timely way.  I am not persuaded that expedition of the proceedings would effectively be an adequate remedy for that.  I am satisfied that any breach that emerges from public tender processes, if one ultimately does, can be adequately sanctioned by whatever reasons are given in due course and by the award of damages. 

1. So it seems to me that in those circumstances, the injunction should not be granted and I do not require the undertaking not to enter into the contractual arrangements to be continued. 

1. The propriety of the agency’s procedures is still an open question and so long as that remains open it would be appropriate to reserve the question of costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 8 April 2005

Counsel for the Plaintiff:  Mr G Flick SC

Solicitor for the Plaintiff:  S & T Lawyers

Counsel for the Defendant:  Mr P Hanks QC and Mr D O’Donovan

Solicitor for the Defendant:  Australian Government Solicitor

Date of hearing:  1^st and 8^th April 2005

Date of judgment:  8 April 2005