Mendonca v Mason - [2013] VSC 516

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

PRACTICE COURT

S CI 2013 4869

BETWEEN

LAURIANO QUEROBINO MENDONCA	Plaintiff
v
SUZANNE MASON	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2013
DATE OF JUDGMENT:	27 September 2013
CASE MAY BE CITED AS:	Mendonca v Mason
MEDIUM NEUTRAL CITATION:	[2013] VSC 516	First Revision: 30 September 2013

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INJUNCTION – Application for injunction to prevent mortgagee in possession from excluding tenant under alleged lease from occupation of premises – Serious question to be tried – Strength of the probability of applicant’s ultimate success at trial relatively low – Damages an adequate remedy – Balance of convenience in favour of refusing injunction –Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Selimi	MLC Lawyers
For the Defendant	W Stark	Moores Legal

HIS HONOUR:

Introduction

The question for determination is whether the defendant, Mason, should be restrained by interlocutory injunction pending trial from excluding the plaintiff, Mendonca, from occupation of premises at level 1, 375 Queen Street, Melbourne. In my view Mendonca’s application for an interlocutory injunction should be refused. My reasons follow.

Background

The premises are residential premises. Mendonca has been living there for over 20 years. He alleges that he was granted a lease by the registered proprietor of the freehold estate, Candolim Pty Ltd, for a term of 10 years commencing 8 June 1998. Three months before its expiry, on 8 June 2008, he claims to have renewed that lease, pursuant to an option to do so, for a further 10 year term. Hence, he claims to be entitled to occupation of the premises under a fixed lease term to 7 September 2018.

Mason is the mortgagee of the freehold of the whole of the premises at 375 Queen Street, both the ground floor and the first floor. She is the assignee of two mortgages. On 9 July 2009 Bendigo Bank assigned to her the first registered mortgage. On 19 April 2013 Mendonca’s sister, Elizabeth De Cruz and her husband assigned the second registered mortgage to Mason.

Before Mason took the assignment of the first (Bendigo Bank) mortgage, Candolim was placed in liquidation. Bendigo Bank, as first mortgagee, was already in possession of the premises before Mason took the assignment of its mortgage. Having taken the assignment and become registered first mortgagee, on 13 July 2009 Mason served notices on Candolim and its liquidator, and upon Mendonca as alleged tenant, requiring payment of all rents and other monies under any lease or tenancy between them to be paid to her. She also demanded written details of any such lease. None were provided by either party. Mendonca has since denied receiving the notice.

Four years later, on 26 June 2013, Mason served a notice on Mendonca alleging that since the notice of 13 July 2009 no rental had been paid to her. She again demanded that Mendonca provide written details within seven days of any lease or tenancy agreement…

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] VSC 516
Case: [2013] VSC 516
Decision Date: 27 September 2013

CaseChat Overview and Summary

The case of Mendonca v Mason involved a dispute between the applicant, Mendonca, and the respondent, Mason. Mendonca sought an injunction to prevent Mason, the mortgagee in possession, from excluding the tenant under an alleged lease from occupying the premises. The matter was heard in the relevant court. The core of the dispute hinged on whether the court should grant an injunction to maintain the status quo pending the determination of the substantive action.

The court had to decide several legal issues, including whether there was a serious question to be tried regarding the existence and validity of the lease, the likelihood of the applicant's success if the case proceeded to trial, the adequacy of damages as a remedy if the injunction were not granted, and the balance of convenience. The court assessed the strength of the probability of the applicant’s ultimate success at trial, finding it relatively low, and concluded that damages would be an adequate remedy for the applicant if the injunction were not granted. The court also found the balance of convenience favoured refusing the injunction.

Given these considerations, the court refused the application for an injunction. The reasoning was that while the matter raised serious questions to be tried, the likelihood of the applicant’s success at trial was not sufficiently strong, damages would adequately compensate the applicant if the injunction were not granted, and the balance of convenience favoured not granting the injunction. Consequently, the court's decision was to refuse the application.

Orders