Mendonca v Mason
[2013] VSCA 280
•4 October 2013
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 freehold of the whole of the premises.
Candolim was placed into liquidation on 2 April 2009, and was deregistered on 12 May 2013.
Bendigo Bank was already in possession of the premises when the respondent took the assignment of mortgage in July 2009. having become the registered first mortgagee, on 13 July 2009 Ms Mason served notices on Candolim and its liquidator, and upon the appellant as tenant, requiring payment of all rents and other monies owing pursuant to any lease or tenancy, and demanding written details of any extant lease. No details were provided by or on behalf of Candolim or the appellant. Mr Mendonca denies receiving the notice.
Almost four years after the notice of 13 July 2009, Ms Mason served another notice on the appellant claiming that no rental payments had been made to her in the intervening period. Again a demand was made that within seven days the appellant provide written details of any lease or tenancy said to exist between him and Candolim. No such details were provided.
Having received no rent, and no details of any lease or tenancy agreement, on 26 June 2013 Mason sent Mendonca a further notice alleging that, if there were any lease of the premises, Mendonca had repudiated it. The notice also stated that Ms Mason accepted the repudiation. It was demanded that the appellant vacate the premises within 15 days after service. And as I have already said, on 15 July 2013 the respondent took possession of the premises.
Mendonca immediately sought and obtained an interim injunction from the Victorian Civil and Administrative Tribunal (‘VCAT’), and an order was made on 17 July 2013 restraining Ms Mason from preventing the appellant occupying the first floor of the premises, and from excluding or attempting to exclude him from the premises. It was a condition that Mr Mendonca pay Ms Mason $3,000 per month from the first day of each month commencing on 1 August 2013. The matter was then set down for a two day contested hearing.
When the matter came on for hearing before VCAT on 16 September 2013, Ms Mason submitted that VCAT had no jurisdiction because a dispute under a fixed lease term exceeding five years does not fall within VCAT’s jurisdiction.[1] That submission was upheld the following day and the VCAT proceedings were dismissed. During the afternoon of 16 September 2013, however, while the matter was adjourned at VCAT, the appellant obtained an interim injunction in the Trial Division of this Court which was in similar terms to the injunction granted by VCAT.
[1]Residential Tenancies Act 1997, s 6.
In purported compliance with the conditions of the injunction granted, the appellant paid Ms Mason two amounts of $3,000 for the months of August and September 2013.
By a Writ and Statement of Claim (apparently under the appellant’s own hand) dated 18 September 2013, the appellant seeks relief. Although, it must be said, that the pleadings are in an unsatisfactory state, the following may be gleaned. Mr Mendonca asserts that he is the lessee of the premises by written lease dated 8 September 1998, which was extended for a further 10 years by the written exercise of an option to renew on 8 June 2008; he paid rent in advance for the year 29 January 2009 to 28 January 2010 by cash in the sum of $6,240 to the director of Candolim, his mother, Deonisia Mendonca (who, I note, was born on 9 October 1920, and is thus now 93 years of age),the director of Candolim (his mother, Deonisia Mendonca); for the period from February 2010 to April 2013, he paid rent monthly to the second mortgagee, his sister, Elizabeth De Cruz, (that occurring with the knowledge and consent of Ms Mason as assignee of the first mortgage); from 6 May 2013 he paid rent directly to the respondent by depositing monies into her nominated bank account (that is $2,500 for each of May, June and July 2013, and the two amounts of $3,000 paid pursuant to the order of VCAT); and he was unlawfully and wrongfully evicted without notice on 15 July 2013 and is thus entitled to possession of the premises.
The respondent does not admit that the lease between the appellant and Candolim is genuine. She denies the authenticity of the purported exercise of the option to renew on 8 June 2008 asserting that it was created in June 2009 and back‑dated. Ms Mason further denies that any sums were paid to Ms De Cruz for rent as claimed by the appellant. It is also alleged that the sums paid to her since May 2013 were not paid to her on account of rent, but in repayment of another debt owed to her by the appellant. Moreover, the respondent submitted that any monies paid to Candolim or Ms De Cruz on account of rent after she served notice on the appellant on 13 July 2009 requiring him to pay rent to her, did not discharge Mr Mendonca’s rental obligations to the respondent. The appellant thus remained in default under any lease (if there be one), entitling her to terminate the lease by accepting his repudiation of it.
The judge’s reasons for refusing the injunction
The primary judge formed the view that there were two fundamental issues that would require resolution at the primary of the action: first, as at 26 June 2013 was the appellant entitled to occupation of the premises pursuant to any fixed term lease; and, secondly, if so, had the appellant repudiated that lease so that, on 26 June 2013, Ms Mason was entitled to accept that repudiation and thereby terminate the lease?
Further, the primary judge formed the view that resolution of those two central issues turned upon the following five contentious questions:
· First, did Candolim grant the appellant a 10 year lease on 8 September 1998?
· Secondly, did Mr Mendonca renew the lease by exercise of the option on 8 June 2008?
· Thirdly, did the respondent serve notice on the appellant on 13 July 2009 requiring payment of rent to her as mortgagee in possession?
· Fourthly, did Mr Mendonca pay rent to his sister, either with Ms Mason’s knowledge and consent or at all, for the period February 2010 to April 2013?
· Fifthly, were the payments made to Ms Mason from May 2013 onwards payments in discharge of the appellant’s rental obligations?
As I follow the primary judge’s reasons, although his Honour found that there is a serious question to be tried on each of the questions which he identified, the totality of the evidence advanced demonstrated that the strength of the appellant’s prospects of ultimate success is ‘relatively low’. He isolated a variety of factors showing that Mr Mendonca’s claim ‘may face considerable hurdles’.
I need not set out exhaustively all of the factors that the judge referred to, but on the first question – whether Candolim granted the appellant a 10 year lease on 8 September – they included the failure to produce the original lease; the failure to adduce evidence from his mother to confirm the lease or explain its whereabouts; and some evidence that the appellant may have been involved in misbehaviour connected with the generation of relevant documents.
On the second issue – the suggested option to renew – a non-exhaustive list of factors that the judge set out included the fact that no original was produced; no evidence was forthcoming from the appellant’s mother; and there was evidence from the respondent’s solicitor, Mr Fraser, that the appellant had acknowledged in a conversation with him on 13 July 2009 that the lease had expired, and had spoken to him about the possibility of backdating a letter of renewal to 8 June 2008 (that is, the last date for renewal).
With respect to the third issue – the service of the notice on 13 July 2013 and repudiation of the lease – the judge observed that, ‘[t]he answer to that factual question may determine whether, even if there was a lease and monies were paid by Mendonca to Candolim in January 2009 or to De Cruz between February 2010 and April 2013, such payments were in law a good discharge for rent’. He further observed that the appellant’s only arguments against the respondent’s arguments concerning repudiation were that he did not receive the notice of 13 July 2009, and that Ms Mason knew of, and consented to, the rent being paid to his sister between 2010 and 2013. As against that, the respondent’s solicitor swore that he sent the notice, and that it was addressed to the appellant at 375 Queen St, Melbourne (that being the address for service of notices under the lease). The appellant did not dispute that he had received other documents mailed to that address. Further, Ms Mason denied that she either knew of, or gave consent to, rent being paid to Elizabeth De Cruz. The judge observed that, ‘Mendonca’s evidence on this issue consisted of an omnibus verification of the assertions made in his statement of claim, which includes the assertion of such knowledge and consent’. Acknowledging that these were disputed matters of fact, the judge regarded strength of the appellant’s arguments as ‘relatively low’. If the appellant fails on factual proofs at trial, in the judge’s assessment the respondent has ‘a powerful argument that any lease that may have existed as at June 2013 was terminated at that time’.
On the fourth issue – whether rent was paid by the appellant to his sister between February 2010 and April 2013 – the judge noted (among other things) that no records were produced to evidence such payments; the appellant adduced no evidence from his sister confirming any payments; there was evidence that Ms De Cruz had denied that payments had been made; and there was no explanation given as to why payments of rent would be made to the second mortgagee rather than the first mortgagee, in circumstances where such an explanation might have been expected.
Touching the fifth issue – whether the payments made to Ms Mason from May 2013 onwards were payments in discharge of the appellant’s rental obligations – the judge referred to Ms Mason’s evidence that the money was paid to her in respect of a separate advance that had been made by her to the appellant; the evidence indicated that a substantial sum had been loaned by Ms Mason to the appellant over a long period of time (supporting the notion that the payments might well have been made to her with respect to a different debt); the three payments of $2,500 per month (for May, June and July 2013) do not correlate with the amount due under the alleged fixed term lease (i.e. $120 per week); and the appellant failed to produce any record or explanation of the payments consistent with them being rental payments.
His Honour also found that ‘the balance of convenience favours refusing the injunction’. Refusal to grant an interlocutory injunction will not cause Mr Mendonca irreparable harm. The judge said that there is no reason to believe that the appellant could not obtain suitable alternative premises in which to live. Were the appellant to succeed at trial, damages would, in the judge’s opinion, be an adequate remedy; and there is no reason to believe the appellant could not recover any damages from Ms Mason. On the other hand, with Mr Mendonca occupying the premises, the respondent can neither sell the building for optimum return nor obtain a commercial rent from the premises, in circumstances where the evidence reveals that she has an urgent need to ameliorate her significant financial outlays. Further, the judge observed that the appellant had not offered any security for the undertaking he has offered to pay damages to Ms Mason in the event that he fails at trial, that being a very significant factor weighing against the grant of the injunction.[2] The judge said he had ‘no confidence’ that if the appellant were ordered to pay damages pursuant to the necessary undertaking he would have to give in return for the grant of any interlocutory injunction, Ms Mason would ever recover those damages.
[2]Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Ltd (1991) 1 Qd R 301, 311.
Finally, the primary judge found that although there is a serious question to be tried – ‘in the sense of a question that is not frivolous or vexatious’ – the appellant ‘would enjoy relatively low prospects of success at trial’; damages ‘would be an adequate remedy should [the appellant] ultimately be found to have been entitled to possession of the premises but be denied occupation of them pending trial, or permanently’; and ‘the lowest risk of injustice lies in not granting the interlocutory injunction sought’.
Grounds of Appeal and appellant’s submissions
There are ten grounds in the Notice of Appeal. I need not set them out in detail, but they raise broad complaints that the judge misapplied the principles governing the grant of interlocutory injunctive relief (grounds 1 to 5);[3] the judge erred in concluding that damages would be an adequate remedy to compensate the appellant for the loss of his proprietary leasehold interest in the premises (grounds 6 and 7); and the judge’s consideration of the ‘balance of convenience’ and the ‘lower risk of justice’ (sic., injustice) was vitiated by a number of adumbrated matters (ground 8 and 9).
[3]The grounds variously refer to Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Briginshaw v Briginshaw (1938) 60 CLR 336, 361–3; Neat Holdings Pty Ltd v KarajanHoldings Pty Ltd (1992) 67 ALJR 170; Walton Stores (Interstate)Ltd v Maher (1988) 164 CLR 387.
In his written submissions, under cover of grounds 1 to 5 counsel for the appellant submitted that the judge correctly identified the relevant legal principles applicable to the grant or refusal of an interlocutory injunction; but that, in the peculiar circumstances of the case, he erred in the application of those principles.
With respect to grounds 5 to 7, counsel submitted that, in the circumstances of the case, the judge should have found that damages were not an adequate remedy. The appellant, it was submitted, had an ‘emotional attachment’ to the premises, he having lived there for 20 years. He submitted that principle established that a threatened interference with the appellant’s proprietary right ought prima facie entitle him to injunctive relief.[4] Counsel further submitted that the appellant’s proprietary right to occupy his home of over 20 years standing, should have been protected pending the trial. Moreover, he submitted that no interim finding adverse to the appellant ought to have been made. That is particularly so when, as counsel submitted, the case turns on credit, and ‘certainly not in disregard of Briginshaw’.[5]
[4]Counsel cited Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149, 181; and Mayfair Trading Co Pty. Ltd v Dreyer (1958) 101 CLR 428, 451.
[5]Briginshaw v Briginshaw (1938) 60 CLR 336.
As to grounds 8 and 9, counsel submitted that the judge’s consideration of the ‘balance of convenience’ was ‘vitiated’ by seven matters. It was argued that the judge:
· erred in taking into account the appellant’s leasehold interest, which entitled him to occupy the premises for another 15 years;
· failed to take into account the ‘sentimental value’ of losing the enjoyment of a family home of over 20 years;
· erred in finding, absent expert evidence, that the respondent could ‘not sell the building for optimum return’;
· erred in assuming that the respondent could lawfully sell the building with vacant possession prior to trial, in circumstances where the appellant had registered a caveat to protect his leasehold interest;
· erred in failing to take into account that there was no evidence to prove what shortfall would result from a sale subject to the appellant’s leasehold interest;
· could have, but did not, order a speedy trial to protect the appellant’s proprietary interest while preserving the respondent’s right to undertake a marketing program; and
· failed to take into account that the respondent ‘had sat on her rights’ to sell the property as mortgagee in possession for over four years.
Counsel put at the forefront of his oral submissions that the judge misdirected himself by failing to take into account the fact, so counsel submitted, that the respondent could not immediately sell the premises with ‘vacant possession’. If the respondent could sell immediately, counsel submitted that the balance of convenience might favour the refusal to grant an injunction.
Moreover, counsel submitted that where the final outcome at trial will depend on a contested questions of fact, it is not appropriate for the court to determine those questions on interlocutory application. He submitted that, when considering whether or not there is a serious question to be tried, the primary judge should have assumed that any conflicts between the evidence of the parties should be resolved in favour of the appellant.[6] Counsel also submitted that a form of estoppel – which the judge did not consider – arose from the respondent’s actions in tolerating rental payments being made by the appellant to another.
[6]BDO Group Investments (NSW-Vic) Pty Ltd v Ngo [2010] VSC 206, [11], Croft J (citing 1st Fleet Pty Ltd v Australian Cooperative Foods Ltd [2006] NSWSC 881, [5], White J.
Respondent’s submissions
Counsel for the respondent reminded the Court that an order granting or refusing an interlocutory injunction is an order made in the exercise of discretion on a point of practice and procedure which does not have the effect of finally determining the rights of the parties.[7] He submitted that in accordance with the principles that generally govern appellate review of a discretionary judgment given in a matter of practice and procedure, an appeal court will not interfere with an order granting or refusing an interlocutory injunction unless an error of principle has occurred and failure to correct the error would work an injustice.[8]
[7]Paringa Mining & Exploration Co plc v North Flinders Mines Ltd (No 2) (1988) 165 CLR 452.
[8]De Mestre v AD Hunter Pty Ltd (1952) 77 WN (NSW) 143; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Epitoma Pty Ltd v Australasian Meat Industry Employees' Union (No 2) (1984) 3 FCR 55; APC v Gray (1989) 98 FLR 468; Associated British Ports v Transport & General Workers’ Union [1989] 3 All ER 796; National Roads and Motorists' Assn Ltd v Geeson (2001) 40 ACSR 1.
Further, it was submitted that the appellant cannot show that the primary judge acted on a wrong principle, or made an order which works a substantial injustice to the appellant. To the contrary, any decision to grant an injunction would have worked a substantial injustice to the respondent. He submitted that it was relevant for the primary judge to consider that the appellant would not be able to meet the damages which might be awarded pursuant to the necessary undertaking.[9] The judge correctly applied applicable principles,[10] and made correct findings on the evidence as to whether there was a serious question to be tried, the balance of convenience and damages as an adequate remedy.
[9]Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Ltd [1991] 1 Qd R 301.
[10]Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.
Finally, counsel orally submitted that the appellant’s claimed sentimental attachment to the premises did not weigh against the balance of convenience.[11]
[11]Johnson v Cressy [2009] VSCA 123, [50]; Palmer v Permanent Custodians Ltd [2009] VSCA 164, [61]; Ozden v Commonwealth bank of Australia [2013] VSCA 195, [91]–[93].
Analysis
An interlocutory order for an injunction is a matter of practice and procedure.[12] Thus this Court must exercise particular caution in reviewing the decision of the primary judge.[13] Before the Court will intervene, there must be error in principle, or the decision appealed from must work a substantial injustice to one of the parties.[14]
[12]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).
[13]Ibid.
[14]Ibid.
In my opinion, the decision of the primary judge neither betrays any error of principle, nor works a substantial injustice to the appellant. The primary judge did not, in my view, err in any of the ways suggested by the appellant.
As I earlier observed, the appellant conceded that the judge correctly identified the principles applicable to the grant or refusal of an interlocutory injunction, but contended that he misapplied those principles. That contention cannot be upheld.
In O’Neill,[15] Gleeson CJ and Crennan J observed:
[I]n all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed.
[15]Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 68 [19].
As to the question of whether there is a serious issue to be tried, in O’Neill the High Court made it plain that it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.[16]
[16]Ibid. 82 [65] (Gummow and Hayne JJ); see also 68 [19] (Gleeson CJ and Crennan J).
In the present case, having cited from O’Neill, the primary judge recognised that in determining whether there was a serious question to be tried the court should avoid resolving conflicts in the evidence. While accepting that ‘a genuine conflict on the evidence about a fact important to the claim often denotes a ‘serious question’ for trial, the mere existence of that conflict does not foreclose the court’s consideration of the strength of the plaintiff’s claim’. Referring to O’Neill, his Honour noted that ‘so long as the court is satisfied that there is a question for determination that is not frivolous and vexatious there will necessarily be a serious question to be tried sufficient to satisfy the first of the usual elements’.[17] He went on to recognise the ‘governing consideration’ as ‘the strength of the probability of ultimate success [which] depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought’.[18]
[17]Ibid. 83 [70].
[18]Ibid. 68 [19], 84 [71].
It was against this background that the primary judge isolated the issues for determination at any subsequent trial. Based on the evidence that was before him – and without making any credibility findings concerning the witnesses – his Honour reached the conclusion that ‘the totality of the evidence advanced by the parties demonstrates, in my view, that the strength of Mendonca’s prospects of ultimate success is relatively low’. With respect, based on the evidence and issues – which I have earlier set out in more detail than is perhaps necessary – his Honour’s assessment was one that was clearly open. The appellant thus cannot successfully contend, in my opinion, that he demonstrated sufficient prospects of success at trial to justify the continuation of the status quo.
As I have noted, the appellant also submitted that his Honour somehow erred in failing to apply a Briginshaw standard when dealing with contested factual issues.[19] As I followed what was put, counsel submitted that since the respondent had raised the spectre of conduct akin to fraud on the part of the appellant, the respondent was required to adduce other than inexact proofs. That submission, however, misapprehends the judge’s task. It was for the appellant to demonstrate that there was a serious question to be tried, not for the respondent to show that there was not. In several aspects of the judge’s decision that were sought to be impugned by the appellant – including his observations about the appellant’s failure to produce important documents and adduce important evidence – his Honour was doing no more, in my opinion, than drawing attention to the fact that the weakness of the appellant’s case might be gleaned from the failure to produce evidence that it might be expected that he would. I detect no error in that approach.
[19]Briginshaw v Briginshaw (1938) 60 CLR 336, 361–3; Neat Holdings Pty Ltd v KarajanHoldings Pty Ltd (1992) 67 ALJR 170.
The primary judge also found that damages would be an adequate remedy. In my opinion it has not been demonstrated that he fell into error in so finding. Very little was put to the judge – or this Court – beyond reliance upon a supposed sentimental attachment to the premises. In the same way that such a sentimental attachment has been held in other circumstances to be of limited relevance in determining whether a stay of a judgment for possession should be ordered,[20] in my opinion it was a matter of insignificance in the determination of any of the issues in this case.
[20]Johnson v Cressy [2009] VSCA 123, [50]; Palmer v Permanent Custodians Ltd [2009] VSCA 164, [61]; Ozden v Commonwealth bank of Australia [2013] VSCA 195, [91]–[93].
I am also of the opinion that there is nothing in the submission that, by reason of the caveat that the appellant himself lodged on 1 August 2013, the respondent could not immediately sell the premises with ‘vacant possession’. The nub of the application before the primary judge was concerned with whether the respondent should be permitted to restrain the appellant from occupation of the premises, not with whether Ms Mason should be permitted to sell. Whether or not the respondent might be capable ultimately of satisfying a putative purchaser of her ability to give vacant possession is, in my view, wholly irrelevant to any issue which presented itself to the primary judge.
For the sake of completeness I note that, although the judge may not distinctly have referred to the operation of a possible estoppel, it is plain that his Honour carefully weighed the considerations pressed upon him by the parties, and reached an overall conclusion that the appellant’s chances of success on a trial of the action were low. That conclusion informed his Honour’s opinion on, among other things, where the balance of convenience lay, and in ultimately concluding that ‘the lowest risk of injustice lies in not granting the interlocutory injunction sought’.
For much the same reasons, in my opinion there is nothing in the other complaints levelled concerning the judge’s supposed failure to consider the possibility of a speedy trial, the fact that the respondent allegedly had sat on her hands, and the like.[21]
[21]See [19] above.
The primary judge’s reasons were careful. He identified applicable principles and correctly applied them in the circumstances of the case. None of the criticisms levelled at his Honour’s reasons has merit.
Conclusion
For these reasons the appeal must be dismissed.
SANTAMARIA JA:
I agree.
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