Newrab Pty Ltd v Fogarty - [2018] WASC 239

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NEWRAB PTY LTD -v- FOGARTY [2018] WASC 239
CORAM:   SMITH J
HEARD:   30 JULY 2018
DELIVERED          :   30 JULY 2018
FILE NO/S:   CIV 2400 of 2016
BETWEEN:   NEWRAB PTY LTD
Plaintiff

AND

MARC FOGARTY
Defendant

Catchwords:

Interlocutory injunction - Defendant seeks an order restraining the plaintiff completing the sale of real property - Whether a pre-existing cause of action - Whether defendant has a legal or equitable right in the property - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 237
Rules of the Supreme Court 1971 (WA), O 4 r 3(2)

Result:

Defendant's application for an interlocutory injunction dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr C McIntosh
Defendant	:	In person

Solicitors:

Plaintiff	:	Muries Lawyers
Defendant	:	In person

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

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
HPM Pty Ltd v Fear [2002] WASCA 249
Siskina (Owners of the Cargo Lately Laden on Board) v Distos Compania Naviera SA [1979] AC 210

SMITH J:

(This judgment was delivered extemporaneously on 30 July 2018 and has been edited from the transcript.)

The result

After hearing from the parties to this action, I made an order that the defendant's application for an interlocutory injunction be dismissed. The reason why I made this order is that the defendant was unable to show that he has a legal or equitable right or interest in the property the subject of the application.

The application

By a chamber summons filed on 26 July 2018, the defendant makes an application for an interlocutory injunction to restrain the plaintiff from proceeding with the completion of the sale of real property, namely lot 1502 Anderson Road, Karratha on plan 213939, being the whole of the land in certificate of title, volume 1927 folio 140.
Completion of the sale has been arranged by the plaintiff, a third party (purchaser) and the plaintiff's mortgagee to take place at 3.15 pm on 31 July 2018 by the exchange of funds and executed documents, including a transfer of land for registration by the titles office.
The right to apply for injunctive relief is dependent upon there being a pre‑existing cause of action against the party sought to be restrained out of an invasion, actual or threatened, of legal or equitable right of the applicant for enforcement of which the other party is amenable to the jurisdiction of the court.[1]
[1] Siskina (Owners of the Cargo Lately Laden on Board) v Distos Compania Naviera SA [1979] AC 210, 256.
It is clear that interlocutory relief will not lie where there is no right to final relief. Whether there is a prima facie case turns on the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought.
An applicant for an interim injunction must be able…

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.

Keep reading for free

Create a free CaseChat account to read Newrab Pty Ltd v Fogarty and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] WASC 239
Decision Date: 30 JULY 2018

CaseChat Overview and Summary

In the Federal Court of Australia, Newrab Pty Ltd (the plaintiff) sought to enforce a claim against Fogarty (the defendant), a director of Aspect Inspection Services Pty Ltd, in respect of a lease agreement for a property. The dispute arose when the defendant, who guaranteed Aspect's obligations under the lease, claimed that there was an agreement to purchase part of the land, lot 2, in addition to the lease. The plaintiff sought possession of the land, unpaid rent, and expenses, and the defendant counterclaimed for misrepresentation, seeking rescission of the guarantee.

The court had to determine whether the defendant had a sufficient colour of a right to the property to warrant an interlocutory injunction restraining the plaintiff from completing the sale. This required the court to assess the status quo and whether the defendant could demonstrate a prima facie case of an underlying cause of action which would entitle him to an interest in the land. The court considered the defendant's affidavit, which stated that the property was an asset in dispute not only in the current action but also in other actions yet to be instituted against the plaintiff by him and another company.

The court held that the purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action, which in this case was the state of affairs during the period immediately before the making of the application. The court found that the defendant had not demonstrated a sufficient colour of a right to the property, as the status quo was the plaintiff being the proprietor of the land and the defendant having vacated the premises. The court also noted that the defendant's claim of misrepresentation was yet to be proven and did not entitle him to an interlocutory injunction.

The court refused the defendant's application for an interlocutory injunction.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

An applicant for an interim injunction must be able to show a sufficient colour of a right to final aid of which he or she seeks an interlocutory injunction.[2] The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action. That is, the status quo of the state of affairs during the period immediately before the making of the application.[2] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. The question that requires determination in this application is what is the status quo and can the defendant demonstrate a prima facie case of the existence of an underlying cause of action which would entitle him to an interest in the land in question. In support of the application, the defendant, in an affidavit sworn by him on 24 July 2018, stated that the property is an asset in dispute in this action and in other actions that are yet to be instituted against the plaintiff by him and possibly by another company in respect of which he is a director. CIV 2400 of 2016 commenced by the plaintiff filing a writ of summons endorsed with a statement of claim filed on 17 August 2016. The plaintiff is and was the proprietor of the land in question. The defendant is a director of Aspect Inspection Services Pty Ltd in liquidation (Aspect). The plaintiff and Aspect entered into a lease of the land for a term of 60 months commencing on 7 November 2013. It is common ground that the defendant guaranteed Aspect's obligations pursuant to the terms of the lease. The defendant claims in his defence and counterclaim filed on 28 March 2017 that there was not only an agreement to lease the land, but an agreement to purchase part of the land known as lot 2. A dispute subsequently arose between the parties about the lease and about non‑payment of rent and expenses. A liquidator to Aspect was appointed on or about 17 November 2015. At the time the writ was filed, the defendant was in possession of the land. The plaintiff claims, in the statement of claim, non-payment of rent, expenses, outgoings and management fees and seeks orders that:(a)the defendant give to the plaintiff possession of the land, an order that the defendant pay the plaintiff the sum of $153,088.77 and rent and outgoings from 18 April 2016 to the date that the defendant gives up possession or judgment, whichever is the sooner; and(b)in the alternative, an order that the defendant pay mesne profits to the date that the defendant gives up possession or judgment, whichever is the sooner. After the writ was filed, the defendant conceded possession of the land on 1 November 2016, and vacated the premises by at least 16 January 2017. An affidavit of a director of the plaintiff, Neil Wayne Gillett, sworn on 2 December 2016, deposes that as at 21 November 2016, the plaintiff's claim for rent, outgoings and management fees on the outgoings was $233,803.20. The defendant raises in his defence and counterclaim a claim of misrepresentation. The claim of misrepresentation is made in fact, which is pleaded as a misrepresentation induced by the plaintiff, which caused Aspect to enter into the agreement to lease, and the defendant to enter into the guarantee agreement. In effect, the defendant pleads that he is entitled to rescission of the guarantee.