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Mendonca v Mason

Mendonca v Mason

Case [2013] VSCA 280 4 October 2013

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0149

LAURIANO QUEROBINA MENDONCA	Applicant
	v
SUZANNE MASON	Respondent

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JUDGES	PRIEST and SANTAMARIA JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 October 2013
DATE OF JUDGMENT	4 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 280
JUDGMENT APPEALED FROM	Mendonca v Mason [2013] VSC 516, Macaulay J

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PRACTICE AND PROCEDURE – Interlocutory injunction – Whether judge misapplied the principles governing the grant of interlocutory injunctive relief – Whether the judge erred in concluding that damages would be an adequate remedy to compensate for the loss of a proprietary interest – Whether the judge’s consideration of the ‘balance of convenience’ and the ‘lower risk of injustice’ was vitiated by a number of adumbrated matters – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J M Selimi
For the Respondent	Mr W G Stark	Moores Legal

PRIEST JA:

Introduction

For over 20 years, the appellant, Lauriano (‘Larry’) Mendonca, has resided at premises at level 1, 375 Queen Street, Melbourne. The respondent, Suzanne Mason, is the mortgagee of the freehold of the whole of the premises at 375 Queen Street, which comprises the ground floor and the first floor (‘the premises’). She took possession of the premises on 15 July 2013.

Mr Mendonca sought to enjoin Ms Mason from preventing him from occupating level 1 of the premises. His application for an interlocutory injunction was determined by a judge of the Trial Division who, on 27 September 2013, refused it. In essence, the primary judge concluded that although there is a serious question to be tried – ‘in the sense of a question that is not frivolous or vexatious’ – Mr Mendonca would enjoy ‘relatively low prospects of success’ at trial. His Honour found that damages would be an adequate remedy should ultimately the appellant be found at trial to have been entitled to, but denied, possession of the premises. Moreover, the primary judge found that ‘the lowest risk of injustice lies in not granting the interlocutory injunction sought’.

By Notice of Appeal dated 30 September 2013, Mr Mendonca appeals against the refusal of the injunction and associated orders. For the reasons that follow, I would dismiss the appeal.

The factual background

Candolim Pty Limited (‘Candolim’), the sole director of which at relevant times was the appellant’s mother, Deonisia Mendonca, was the registered proprietor of the freehold of the premises. The appellant claims that he was granted a lease by Candolim for a 10 year term commencing 8 June 1998. The appellant claims that he renewed the lease some three months prior to its date of expiry, 8 June 2008, so as to be entitled to occupation under a fixed term lease until 7 September 2008.

On 9 July 2009 Bendigo bank assigned a first registered mortgage to Ms Mason; and on 19 April 2013, the appellant’s sister, Elizabeth De Cruz, and her husband assigned a second registered mortgage to her. The respondent is thus the mortgagee of the…

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 Mendonca v Mason

Details

AGLC: Mendonca v Mason [2013] VSCA 280
Case: [2013] VSCA 280
Decision Date: 4 October 2013

CaseChat Overview and Summary

In Mendonca v Mason, the parties were in dispute over an interlocutory injunction related to a proprietary interest. The matter was heard in the Federal Court of Australia. The central issue was whether the primary judge misapplied the principles governing the grant of interlocutory injunctive relief by concluding that damages would be an adequate remedy for the loss of the proprietary interest, and whether the judge's assessment of the 'balance of convenience' and 'lower risk of injustice' was flawed due to certain matters raised in the appeal.

The court considered whether the primary judge had correctly applied the principles for granting an interlocutory injunction. The appellant argued that the primary judge misapplied these principles, particularly in relation to the assessment of the adequacy of damages as a remedy. Additionally, the appellant contended that the judge's consideration of the 'balance of convenience' and 'lower risk of injustice' was influenced by certain matters that should have been disregarded. The court examined the primary judge's reasoning, the applicable legal principles, and the evidence before the court.

After reviewing the arguments and the primary judge's decision, the court found that the appeal was without merit. The court held that the primary judge had correctly applied the relevant principles in determining that damages would be an adequate remedy and that the assessment of the 'balance of convenience' and 'lower risk of injustice' was not vitiated by any errors. The appeal was therefore dismissed, and the decision of the primary judge was affirmed.

The final orders of the court were that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal.

Orders