Ooranya Pty Ltd v ISPT Pty Ltd

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   OORANYA PTY LTD -v- ISPT PTY LTD [2018] WASC 256

CORAM:   KENNETH MARTIN J

HEARD:   30 & 31 JULY, 10, 17 & 20 AUGUST 2018

DELIVERED          :   22 AUGUST 2018

FILE NO/S:   CIV 1600 of 2018

BETWEEN:   OORANYA PTY LTD

First Plaintiff

BAYSWATER NOMINEES PTY LTD

Second Plaintiff

AND

ISPT PTY LTD

Defendant

CITY OF PERTH

Third Party

FILE NO/S:   CIV 2276 of 2018

(Consolidated by orders of Justice Kenneth Martin on 31 July 2018)

BETWEEN:   ISPT PTY LTD

Plaintiff

AND

OORANYA PTY LTD

First Defendant

BAYSWATER NOMINEES PTY LTD

Second Defendant


Catchwords:

Torts - Private nuisance - Intentional interference with contractual relations - Interlocutory injunction - Major Perth CBD construction and redevelopment site - Works interrupted by human presence at cafe site at aberrant trading hours - No unlawful conduct - Principles

Legislation:

Nil

Result:

Application granted

Category:    B

Representation:

CIV 1600 of 2018

Counsel:

First Plaintiff : Mr M L Bennett & Mr M Nas
Second Plaintiff : Mr M L Bennett & Mr M Nas
Defendant : Mr M N Solomon SC & Dr R Collins
Third Party : No appearance

Solicitors:

First Plaintiff : Bennett + Co
Second Plaintiff : Bennett + Co
Defendant : Allens
Third Party : No appearance

CIV 2276 of 2018

(Consolidated by orders of Justice Kenneth Martin on 31 July 2018)

Counsel:

Plaintiff : Mr M N Solomon SC
First Defendant : Mr M L Bennett
Second Defendant : Mr M L Bennett

Solicitors:

Plaintiff : Allens
First Defendant : Bennett + Co
Second Defendant : Bennett + Co

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

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Boase v Seven Network (Operations) Ltd [2005] WASC 269

Donaldson v Natural Springs Australia Ltd [2015] FCA 498

Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473

Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670

Hardie Finance Corporation Pty Ltd v Ahern [No 3] [2010] WASC 403

Jaddcal Pty Ltd v Minson [2011] WASC 28

JSC BTA Bank v Khrapunov [2018] UKSC 19

Merkur Island Shipping Corporation v Laughton [1983] 2 AC 570

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105

OBG Ltd v Allan [2008] 1 AC 1

Orica Investments Pty Ltd v McCartney [2007] NSWSC 645

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1

Quinn v Leathem [1901] AC 495

Samsung Electronics Co v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238

Schering Pty Ltd v Forrest Pharmaceutical Co Pty Ltd [1982] 1 NSWLR 286

Shogunn v Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2]

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Details
Case
[2018] WASC 256
Decision Date

CaseChat Overview and Summary

In the case of Ooranya Pty Ltd v ISPT Pty Ltd, the dispute centred on ISPT's application for an interlocutory injunction against the café operators, Ooranya, who were preventing the installation of construction gantries necessary for the redevelopment of Forrest Place, Perth. The legal issues were whether Ooranya's actions constituted the tort of interference with contractual relations and whether damages would be an adequate remedy if injunctive relief was denied.

The court found that Ooranya's actions were intentionally aimed at disrupting ISPT's redevelopment plans. Evidence showed that Ooranya had altered their trading hours to coincide with the proposed gantry installation times, despite their usual hours being closed during those times. This change in trading hours was not motivated by profit but by a desire to obstruct ISPT's construction activities. Furthermore, Ooranya's awareness of the contractual arrangements between ISPT, Lendlease, and the City of Perth supported the inference that their actions were deliberate.

Regarding the adequacy of damages, the court held that damages would not be an adequate remedy due to the significant and unquantifiable losses ISPT would incur, including financial, reputational, and operational impacts. The balance of convenience also favoured ISPT, as the redevelopment of Forrest Place was a major public project, and further delays would cause significant harm to ISPT, future tenants, and the public.

The court granted the injunction, requiring Ooranya to vacate the café on specified nights to allow the installation of the gantries. The injunction terms were designed to minimize any impact on Ooranya's business while enabling ISPT to proceed with the redevelopment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

By a second tranche of written submissions of 20 July 2017, ISPT elaborated upon the tort of interference with contractual relations which it invokes, and then towards its application to the contended facts underlying this application. Again, for speed and present convenience, I will incorporate pars 26 through 69 of the further submissions of ISPT (court document 76).26.[I]SPT set out at some length the general principles in relation to the tort of interference with contractual relations from [10] to [39]. It is thus not necessary to set out those principles in full again. It is sufficient to observe that it is the present state of the law in Australia, that:(a)there remains a tort of interference of contractual relations;(b)that tort is committed by a person who hinders or prevents the performance of a contract;(c)preventing or hindering a contractual party from performing a contract amounts to direct interference;(d)actual knowledge of the contract is not necessary - a fairly good idea is sufficient;(e)knowledge is really an aspect of intention – a person's intention to prevent the performance of a contract is sufficient to constitute the tort; and(f)the onus of making out the defence of justification rests upon the party alleged to have interfered. The essence of the defence is that the conduct of the alleged tortfeasor involve the assertion of a greater right. The defence rarely succeeds and is in any event limited - an active interference is only justified if shown to be no more than reasonably necessary for the protection of some actually existing superior legal right.Serious question to be tried - application of the facts27.Again, the ISPT summary judgment submissions descend in some considerable detail to the application of the facts to the elements of the tort. The summary below is directed to the principal features that strongly suggest the plaintiffs' conduct was motivated by a desire and intention to interfere with ISPT's contractual relations by preventing installation of the gantries and those parts of the redevelopment of the Walkways dependent upon their installation.28.First, it is plain that the plaintiffs were aware of the involvement of the City of Perth and Lendlease in respect of the development works. There is a good deal of documentary evidence to support that but one need go no further than the following:(a)the email from the plaintiffs' solicitors to ISPT referring to the fact that 'ISPT has engaged contractors (Lendlease)…';(b)the affidavit evidence of Frank Agnello is that on or around 21 July 2017 he received a copy of a document titled Forrest Chase Redevelopment dated 17 May 2017. That document set out on page 109 the construction methodology for the gantry installation including that a gantry was to be installed above the Café and that it was installed for the protection of both construction workers and the public;(c)the email from Lendlease to the City of Perth dated 12 February 2018 confirming that Frank Agnello had contacted Lendlease directly in relation to the impending gantry works around the Café on 12 February 2018;(d)the letter from the plaintiffs' solicitors to the City of Perth dated 16 February 2018 which shows that the plaintiffs:(i)were aware at least from 2013 of the redevelopment;(ii)had engaged in discussions with ISPT about its intention to redevelop the land; and(iii)had engaged in discussions with the City of Perth about its intention to carry out works on the common areas;(e)the letter from the plaintiffs' solicitors to each of ISPT, the City of Perth and Lendlease dated 1 March 2018 demanding that ISPT and Lendlease comply with the plaintiffs' requirements to limit certain works to after 10.30 pm and before 5.00 am and ensuring that the City as the plaintiffs' landlord is aware of these matters;(f)the letter from the City of Perth's solicitors to the plaintiffs' solicitors dated 2 March 2018 shows that the plaintiffs were informed of 'the nature of works intended by ISPT and its contractor Lendlease, under arrangements with the City' and that there had been fairly extensive consultations about this work;(g)the letter from the plaintiff's solicitors to ISPT dated 6 March 2018 shows that the plaintiffs were aware that the City of Perth had given notice that ISPT's contractor intended to commence work relating to the constructor of the gantry over the Café [on] the evening of 6 March 2018; and(h)the plaintiffs were aware (or must have turned a blind eye to the fact) that the entity that controlled Forrest Place, the City of Perth, was its landlord and that ISPT could not be conducting significant invasive works in Forrest Place without a contractual arrangement with the City of Perth. The plaintiffs received a variety of communications and notices regarding the construction works directly from the City of Perth.29.The plaintiffs thus had sufficient knowledge of the contractual arrangements. Indeed, the above matters provide an evidentiary foundation establishing that by 6 March 2018 the plaintiffs knew that:(a)ISPT's contractor for the construction works was Lendlease and, accordingly, that there was a contract between ISPT and Lendlease for the works associated with the redevelopment which included the installation of the gantries; and(b)the works intended by ISPT and its contractor Lendlease were of a nature that required arrangements with the City of Perth and, as such, the plaintiffs must have known that there was an arrangement with the City to enable ISPT and Lendlease to undertake the works.30.There is a very strong inference that the plaintiffs' conduct was undertaken with the intent of preventing the installation of the gantries and thus frustrating the contractual arrangements of which they must have been aware. 31.There is no suggestion or evidence that the plaintiffs historically traded through to the early hours of the morning outside Friday or Saturday nights. On the contrary, in his own affidavit of 27 April 2018 Frank Agnello attested to the opening hours of the Café being 6.30 am to 7.30 pm except for Fridays. The published trading hours of the Café on Facebook showed that the Café closed around 5.00 pm other than on Fridays. As a matter of common sense, it is not difficult to see why that is so. It is plain that a café business trading into the early hours of the morning in Forrest Place during the week, particularly in the winter nights, will not be profitable. It defies common sense to assert otherwise.32.The plaintiffs only began to trade into the early hours of the morning during the week upon learning that ISPT intended to install the gantries. The background to that happening strongly suggests that the plaintiffs did so as a means of preventing the installation of the gantries and those parts of the redevelopment of the Padbury Walkways dependent upon their installation.33.That background requires an appreciation of the genesis of the dispute. The plaintiffs have a lease that expires on 1 March 2021. There is no option for a further term. It is clear from the plaintiffs' own evidence and the contemporaneous documentation that the plaintiffs were only prepared to cooperate so as to allow the redevelopment to proceed if they got a new lease deal on terms they found acceptable. When they did not get the deal they wanted they developed a significant hostility towards ISPT whom they accused of as lying and deceiving. 34.In his affidavit Michael Barr refers to a meeting in 2017 following the breakdown of the lease negotiation. His evidence is that Frank became angry and said he would stay open all night. Frank made no reference to recouping losses. In his responsive affidavit, Frank contends that Mr Barr's summary 'is incomplete' but provides no denial of the evidence. On the contrary he confirms that he became angry and accused ISPT of 'screwing us' and of lying. It stands to reason that in that context the plaintiffs would have been motivated to frustrate ISPT's commercial objectives.35.Michael Barr made contemporaneous notes of his meeting with the plaintiffs on 18 February 2018. The contemporaneous notes make it plain that the plaintiffs' cooperation in relation to the redevelopment had ceased due to the breakdown in negotiations for a further lease. Point 4 of the note makes it plain that the plaintiffs' conduct to frustrate installation of the gantries was deliberate and as a result of the plaintiffs' hostility. Point 8 makes it plain that Frank became abusive in response to the prospect of the installation of the gantries and that he would take legal action 'and would trade 24 hours a day going forward'. There is no reference in that contemporaneous note linking the intention to trade 24 hours a day to making up the losses. On the contrary, the threat to trade 24 hours a day is plainly in response to ISPT's intention to install the gantries after the breakdown of lease negotiations.36.It is also instructive to consider the record of the closing times of the Café taken from the time-lapse camera and annexed at page 603 of the affidavit of Nicholas De Vries dated 20 June 2018. That record indicates that other than Friday night there was no late trading until 11 February 2018. The email records annexed to the affidavit of Michael Barr indicate that the plaintiffs were advised of the imminent installation of the gantries sometime shortly after Thursday, 8 February 2018. The email at page 225 indicates that the plaintiffs found out about the proposed installation of the gantries shortly before 12 February 2018. The plaintiffs' commencement of weekday late trading thus coincided with the anticipated installation of the gantries.37.A letter from the plaintiffs' solicitors to the City of Perth dated 16 February 2018 shows that the plaintiffs were aware that:(a)it was intended that a gantry be erected over the Café; and(b)seeking to stop the works, including the erection of the gantry, was likely to interfere with ISPT's timetable for the redevelopment and likely to cause significant loss to ISPT such that the plaintiffs were not prepared to seek an interlocutory injunction which would require them to provide an undertaking as to damages.38.The plaintiffs knew that the gantries above the Café and Alfresco Area were to be installed so that the works could proceed as planned.39.As to ISPT's attempt to install the gantry on 6 March 2018, notices had been provided to the plaintiffs before 6 March 2018 to advise them of the proposed gantry installation and the need to vacate the Café outside of the work hours previously advised by the plaintiffs themselves. 40.Further, there were very few people in the Forrest Place area generally after 8.00 pm on 6 March 2018. Accordingly, it was not a time at which one could sensibly expect to trade for profit. In fact, Nicholas De Vries' evidence is that there were no observed customers purchasing anything from the Café after 9.30 pm on 6 March 2018. Instead, the people who remained in the Café or Alfresco Area after 9.30 pm appeared to be a mix of Bocelli Café staff members and acquaintances of the owners of the Café. The absence of real customers and the presence of Bocelli affiliates strongly suggests that the purpose in keeping the Café open was to frustrate the installation of the gantry, not to trade for profit.41.There is some conflict on the evidence as to what the plaintiffs said on the night of 6 March 2018 when ISPT attempted to install the gantry. Nicholas De Vries gives evidence that Frank told him that he 'would not be vacating the premises as long as the gantry installation crew remained on-site'. Frank denies having said words to that effect. The contemporaneous record is a text message from Michael Barr to Robert Staniford: 'Spoke to Nick. Frank says he is not budging tonight. Will trade through the night. According to [N]ick his ire is firmly directed at [ISPT]. Says he has been trying to get people to come to the party but can't get anyone to talk to him!…'. That contemporaneous record is consistent with the plaintiff exacting its anger on ISPT by frustrating its construction works. 42.The Café appears to have closed shortly after or during the demobilisation by Lendlease (after it became clear that the works could not go ahead). It appears that the plaintiffs changed their mind about trading 'through the night' once it became clear that the works could not go ahead. Further, the proximity in timing of the Café closure and demobilisation undermines the plausibility to the plaintiffs' claim that they remained in the Café for the purpose of trading for profit. Rather, it is far more likely that the plaintiffs remained in the Café solely for the purpose of frustrating the installation of the gantry.43.On 8 May 2018 ISPT invited the plaintiffs (through their solicitors) to identify a time when they would not need to stay in the Café after their usual trading hours so that the gantries could be installed. Had the plaintiffs' true motivation been profitable trade, then the records of closure times over May and June 2018 indicate that there would have been nights when the gantries could have been installed without impacting on the Café. But the plaintiffs never responded to this letter. Their lack of response is again suggestive of their intention to frustrate any attempt to have the gantries installed.44.After not receiving any response, on 25 May 2018 ISPT's solicitors provided notice to the plaintiffs' solicitors of ISPT's intention to commence installation of the gantry over the Café on 12 - 14 June 2018. ISPT informed the plaintiffs (through their respective solicitors) that the Café needed to be vacant for the gantry to be safely installed and further noted that it seemed opportune to undertake the works in the middle of winter and on nights other than Friday and Saturday nights to minimise the impact on the plaintiffs' business.45.The events surrounding ISPT's attempts to install the gantries in June 2018 provide further strong support for the inference that the plaintiffs' conduct was undertaken with the intention of preventing the installation of the gantries. At page 639 of Nicholas De Vries' affidavit dated 20 June 2018 is a table that collates the number of people observed in the Café after 6.00 pm. It is evident from that table that during the evenings preceding the attempted gantry installations, there was no more than one person in the Café late at night but suddenly there were up to 15 people there on the night that ISPT resumed its efforts to install the gantry on Tuesday night 12 June 2018. After those efforts ceased on the Friday night 15 June 2018 there were no people in the Café at the equivalent times (even though Friday night is ordinarily a late-night trading period).46.On the evening of 12 June 2018, the evidence of Nicholas De Vries is that:(a)there were no customers of the Café after 8.00 pm that night other than people who appeared to be clearly associated with the directors of the first plaintiff and two Lendlease subcontractors who purchased coffee; and(b)there were no other shops open in either Murray Street Mall or Forrest Place after 8.00 pm.In these circumstances, it is not credible to assert that the opening of the Café beyond 2.00 am in the morning was for the purposes of trading for a profit. It is far more likely in the circumstances that it was to frustrate the attempts to install the gantry.47.On 13 June 2018, the evidence of Nicholas De Vries is that:(a)All other shops in the vicinity were closed by 8:00pm that night;(b)There appeared to be a total of 8 legitimate customers (including one Lendlease subcontractor who purchased coffee) between 8.00 pm and 10.30 pm that night with no customers after that time;(c)Café staff were hosing down inside the Café and generally cleaning up and sweeping up by 10.15 pm that night; and(d)Frank Agnello and his wife appeared to have arrived at the Café at 10.40 pm.Again, these observations, strongly suggest that the opening of the Café beyond 2.00 am was not for the purposes of trading for a profit but to frustrate the attempts to install the gantry.48.On the afternoon of 14 June 2018, after further notice had been provided to the plaintiffs of ISPT's intention to install the gantry that evening, the plaintiffs' solicitors responded that the plaintiffs 'will trade every night until late for the balance of its lease'. In light of the context in which this response was provided, the inference ought to be drawn that the plaintiffs' intention in trading late every night (regardless of the ability to profit from such trade) was to frustrate the installation of the gantry.49.On 14 June 2018, the evidence of Mr De Vries, based on information received from his colleague Mr Farnworth, is that:(a)all other shops in the vicinity of the Café were closed by 8.00 pm that night;(b)there appeared to be a total of 6 customers (including 4 Lendlease subcontractors purchasing coffee) up to 9.50 pm after which time no customers at the Café were observed; and(c)it appeared that Frank Agnello arrived at the Café at 10.25 pm (being 5 minutes before the intended commencement of the gantry installation).Once again, the inference is irresistible that the plaintiffs remained in the Café not for the purpose of trading for a profit but to frustrate the installation of the gantry.50.Against that background, there is a strong, if not inescapable inference that the plaintiffs began and maintained their weekday late-night trading in order to prevent the installation of the gantries. 51.By reason of the matters set out above, it is fairly plain that:(a)the plaintiffs had sufficient knowledge of the contractual arrangements;(b)the plaintiffs appreciated that the consequences of their conduct would be to interfere with those arrangements; and(c)indeed, the plaintiffs intended that outcome by their conduct.52.The plaintiffs maintain that they were not seeking to prevent the installation of the gantries but rather to make up for lost trade. The contemporaneous record does not support that contention but in any event, as a matter of common sense it is fanciful to suggest that it would be profitable to trade through the early hours of the morning especially at the height of winter in order to make up losses.53.The plaintiffs also maintain that pursuant to their lease they have a right to trade extended hours as they wish. Whether or not the plaintiffs were entitled to stay in the Café by reason of the rights provided by the lease is not to the point. Even if the lease provided such rights, they may not be exercised for a collateral purpose. But, in any event, the exercise of rights under a lease discloses nothing about the reason for the exercise of those rights. If lawful rights are exercised for the purpose of preventing the performance of a contract then a tort may nevertheless be committed.54.In any event, as explained above, the defence of justification will not be available unless the plaintiffs have done no more than is reasonably necessary for the protection of their rights. In light of the matters set out above, it is most unlikely that a Court would conclude that the plaintiffs limited their actions to that which was reasonably necessary.55.In all the circumstances, there is a strong inference available that the plaintiffs consciously intended to disrupt ISPT's contractual arrangements by preventing installation of the gantries and those part of the redevelopment of the Padbury Walkways dependent upon their installation. 56.There is therefore, a serious question to be tried as to whether the plaintiffs committed the tort of interference with ISPT's contractual relations.Adequacy of damages57.No injunction will usually issue where an adequate remedy at law exists. 58.Common law relief may be inadequate where:(a)doubt surrounds the respondent's ability to pay the damages sought. As stated in Schering Pty Ltd v Forrest Pharmaceutical Co Pty Ltd & Ors [1982] 1 NSWLR 286 at 290:Certainly if an injunction is not granted there is no other remedy that is of any value at all to the plaintiff; it will suffer irreparable harm; it will probably suffer irreparable harm in any event, but certainly it will suffer irreparable harm if an injunction is not granted, because any right to damages in the present circumstances is completely illusory.(b)damages are likely to prove difficult to quantify.59.Here, damages are not an adequate remedy. If injunctive relief is denied, unquantifiable or irreparable damage will be suffered by ISPT, third parties and the general public more broadly for the following reasons.(a)Loss of future tenants - ISPT has entered into various lease agreements with future tenants for the lease of shops in the retail area behind the existing Padbury Walkways. If the redevelopment of that area cannot be finalised before a specified commencement date in the lease agreements then these future tenants have the right to walk away from the lease agreements. As a result ISPT may lose important future tenants. It is not possible to quantify the loss to ISPT if it loses these future tenants.(b)Further, tenants that lease shops in the redeveloped Forrest Chase will be affected by the unfinished redevelopment because:(i)there will be fewer shops resulting in fewer visitors to the mall and their shops and therefore less trade; and(ii)an unfinished shopping mall will be less attractive than a finished shopping mall and will not attract the same customer levels which will also result in less trade for these tenants.This may lead to a demand for lower rental incomes for ISPT from these tenants and/or demands for compensation to be paid by ISPT to these tenants. Much of this loss is not possible to quantify.(c)Impact on new leases - As a result of the inability to install the gantries and continue the works, there is uncertainty regarding:(i)the timing of completion of the redevelopment and the opening of future shops in the redeveloped Forrest Chase; and(ii)the outlook of the redeveloped Forrest Chase.As this is critical information for any potential tenants, ISPT is unable to provide any certainty on these matters to potential tenants which is impacting its ability to find new tenants and sign up new leases for the redeveloped Forrest Chase.(d)Loss of Christmas period trade for tenants - If the redeveloped works are further delayed, certain future tenants will not be able to open their shops in the redeveloped Forrest Chase before Christmas. This will have a negative impact on:(i)the trading levels for these shops as they will miss out on the most important trading period in the year when a significant portion of annual sales is achieved; and(ii)other retailers in Forrest Chase will have reduced customer levels due to fewer shops in the area and the shopping mall being unfinished.(e)Impact on the City of Perth and community events - If the redevelopment works continue to be delayed, there will be more works undertaken in the Christmas period than currently envisaged. This will impact on the ambiance and atmosphere of the City of Perth as a whole. It may also impact on any events that are planned to take place in or around Forrest Place in the Christmas period such as the event to turn on the City of Perth's Christmas lights which has taken place in Forrest Place in recent years and attracts thousands of people every year.(f)Impact on surroundings and other parties - Further delay of the redevelopment will also have the effect that the construction works continue for a longer period of time. This will negatively impact on:(i)Other retailers and shopping malls in the vicinity of Forrest Chase including the Murray Street Mall and Carillon City and their tenants;(ii)Residents in nearby apartment blocks, including on Murray Street and Barrack Street; and(iii)A large number of the general public including commuters who use Forrest Place and the Padbury Walkways on a regular basis.(g)Effect of reprogramming in the works schedule - If the gantries above the Café and Alfresco cannot be installed such that the construction works cannot be completed until the expiry of the plaintiffs' lease in 2021, then there will be further impact on:(i)tenants within Forrest Chase as certain shops will need to be vacated during the period that redevelopment is recommenced which will result in loss of trade to these retailers and lower or no rental income from those tenants to ISPT during that period; and(ii)other parties in the area, such as retailers, pedestrians, commuters, shoppers and visitors to the City of Perth as the construction works will continue for a longer period. It is not possible to quantify losses to these third parties.(h)Reputational loss - Further delays to the redevelopment are likely to result in consequential reputational damage for ISPT, which loss is impossible to quantify. This is likely to arise in the following ways:(i)if ISPT is unable to comply with its obligations under lease agreements or is not able to negotiate new leases with potential future tenants and those future tenants form part of a larger retail company that has branches in other parts of the country then this may affect ISPT's ability to enter into leases with these companies in other parts of Australia or negatively impact the negotiation position of ISPT in future dealings with these companies;(ii)the additional costs associated with a delay in the redevelopment may result in dissatisfaction with the current investor base of ISPT and could impact ISPT's ability, or the terms on which it is able, to attract future investors; and(iii)if, as a result of the current delays in the redevelopment, ISPT gets a reputation that it is not able to complete large redevelopments, this may lead to reluctance of other governmental bodies to work with ISPT on any future redevelopments.(i)For the above reasons, damages will not be adequate remedy in the event that injunctive relief is not granted.Balance of convenience60.Consideration of the balance of convenience begins with the observations of the High Court in Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148 at 153 that the grant of an injunction involves balancing the injustice which might be suffered if the injunction is granted and the plaintiff later fails at trial, against the injustice which might be suffered if the injunction is not granted and the plaintiff later succeeds at trial. Ultimately the question is as to the balance of the risk of injustice.61.In considering the balance of convenience in this matter, it is important at the outset to observe that there can be no doubt that the plaintiffs will continue to occupy the Café in a manner that prevents the installation of the gantries. Thus, there is no 'neutral' outcome. Either the plaintiffs will be required to allow the gantries to be installed or ISPT will in effect be prevented from installing the gantries.62.In that regard, it is important to note that the plaintiffs have consciously elected not to bring an application for an injunction because they do not wish to provide an undertaking for damages. Yet, if the injunction is not granted, the plaintiffs will in effect have their injunction because ISPT will, practically speaking, be restrained from installing the gantries. In effect, the plaintiffs will have their injunction and ISPT will have no protection from any undertaking. That alone is sufficient to suggest that a greater injustice will arise if an injunction is not granted.63.But in any event the various factors relevant to the balance of convenience are in favour of the injunction being granted. These are as follows.(a)the redevelopment is a very significant redevelopment of one of Perth's most important public spaces and indeed Perth's primary civic square - Forrest Place. (b)ISPT will suffer significant prejudice if the injunction is not granted. If the plaintiffs are not restrained from preventing the installation of the gantries then the construction works (in respect of the Padbury Walkways and the bridge, lifts and escalators between the Padbury Walkways and Carillon City) cannot proceed as planned. As a result there will be significant loss to ISPT including:(i)costs associated with redesign of the redevelopment and reprogramming of the works schedule; (ii)damages claims resulting from liability to Lendlease and its subcontractors for delays to the project and potentially from the City of Perth;(iii)losses flowing from lease agreements entered into by ISPT relating to Forrest Chase;(iv)losses arising from the difficulties in signing up new tenants to leases within the redevelopment; and(v)reputational losses at a corporate, investor and governmental level.(c)as noted above, the plaintiffs have consciously elected not to seek injunctive relief and accordingly there are no means by which ISPT will be compensated for these losses other than by prosecution of its counterclaim with its attendant risks. The first plaintiff has a paid up capital of two dollars. The second plaintiff has a paid up capital of one thousand dollars. No balance sheets have been provided;(d)third parties (including current and future tenants of Forrest Chase and the surrounding areas, residents, commuters and the general public) will also be adversely affected if the works cannot proceed as planned including:(i)the likely losses by retailers in Forrest Chase and the surrounding areas (including Murray Street Mall and Carillon City) as a result of the delayed launch of the redeveloped Forrest Chase and the loss of the opportunity to trade during the lucrative Christmas period (as set out in paragraph 59(d) above);(ii)the negative impact on the general public who would attend events in Forrest Place in the Christmas period (such as the event to turn on the City of Perth's Christmas lights which attracts thousands of people every year) as there will be more works being undertaken in the Christmas period if the delay continues (as set out in paragraph 59(e) above);(iii)the negative impact on residents in nearby apartment blocks including on Murray Street and Barrack Street as the construction works will continue for a longer period of time (as set out in paragraph 59(f) above);(iv)the impact on a large number of the general public including commuters who use Forrest Place and the Padbury Walkways on a regular basis (as set out in paragraph 59(f) above).(e)if the injunction is granted, then the impact on the plaintiffs is that they will be unable to trade between 10.30 pm and 5.00 am (notably these were hours which until early June 2018 were publicised as hours during which the Café was closed) for a limited number of evenings during winter and possibly early Spring. Moreover it is difficult to see how the plaintiffs could suffer any great prejudice when their own solicitor wrote to ISPT, Lendlease and the City of Perth demanding that noisy works be undertaken between 10.30 pm and 5.00 am. (f)it should also be noted that the terms of the injunction have been carefully crafted in order to minimise any impact on the plaintiffs. ISPT has agreed to provide at least seven days' notice of any gantry installation and any other demolition or reconstruction work requiring the vacation of the Café and has agreed that those works will not be done on a Friday night or Saturday night. It may be noted that ISPT has suggested those arrangements to minimise any detriment to the plaintiffs and only after the plaintiffs [failed] to respond to the invitation to nominate times.(g)it is appreciated that the plaintiffs maintain that it is not simply the installation of the gantries that causes them concern but the further works that the gantries will facilitate. However, the plaintiffs have both ISPT's undertaking and their own nuisance claim by which any prejudice can be cured. In contrast to the financial position of the plaintiffs, there is no suggestion that ISPT is not in a position to adequately fulfil any undertaking. Nor is there any suggestion that the plaintiffs' prejudice cannot be cured by financial compensation.64.As a general observation it should be noted that the plaintiffs have, for 19 years taken the benefit of being located in Forrest Place and adjacent to the Walkways which are a very significant public thoroughfare. In the circumstances there is no overriding prejudice in requiring the plaintiffs to vacate the Café on nominated winter nights from 10.30 pm to 5.00 am to permit improvements to the very infrastructure from which they have profited. 65.The circumstances in relation to the balance of convenience in some respects is similar to the case of Bradto. In that regard it is useful to note the Court of Appeal's acceptance of the primary judge's comments at [83].66.In that context, it is noteworthy that the plaintiffs have previously submitted that the application for injunctive relief is entirely novel because nowhere has a court excluded a lessee from conducting lawful activity in its own leased premises. The Bradto decision suggests otherwise. Further, in City Cites (Rainham) Ltd v Price Carter [2002] EWHC 1496, Neuberger J (as his Lordship then was) considered whether an interlocutory injunction should be granted to require tenants to vacate their premises for 20 weeks. His Honour considered that justice would be best served by granting the injunction reasons which relevantly included:(a)His Honour observed that sooner or later the work would have to be carried out and cause detriment to the defendants. There was a contract [to carry out the works] in place ready to go and apart from the short term interests of the defendants it was of benefit to the landlord and tenants of the whole centre that the work proceed at that time. Similarly, in the current proceedings (ie concerning Forrest Chase) the work will have to be carried out sooner or later and there is currently a construction contract in place with Lendlease. Apart from the apparent short term interests of the plaintiffs (in trading the Café in the middle of the night), it is of benefit to ISPT and the tenants of not only the redeveloped Forrest Chase but tenants of surrounding retail malls (eg Murray Street Mall and the Carillon) that the work proceed as soon as possible;(b)the position was to be assessed by reference to the interest of the landlord and tenants but in the context of a case which concerns a shopping centre, also by reference to the interests of other occupiers of the centre. His Honour observed that 'the sooner this part of the centre ceases to be a building site…the better'. Similarly, in the current proceedings this is a relevant factor. The relevant context is the redevelopment of Forrest Chase and the Padbury Walkways. It is clearly in the interests of all of the tenants in these areas and surroundings areas (as well as commuters, residents and shoppers) to expedite matters so that the area is no longer a building site.(c)Significantly His Honour also considered that it would be better to grant the injunction sooner so that the tenants did not suffer the disadvantage 'of being out of their units in the Centre during the Christmas season'. Similarly, in the current proceedings, it is important for the gantries to be installed as soon as possible and the works on the Padbury Walkways undertaken so as to minimise the risk that tenants, shoppers and the general public intending to attend Christmas events in Forrest Place are impacted during the Christmas period due to ongoing and delayed construction works.67.Although this case concerned an injunction sought by a landlord against certain tenants, the relevant factors considered by the Court in granting the injunction apply. In that case it was the landlord who was carrying out the relevant works. In the current proceedings, it is ISPT who is carrying out the relevant works (under an agreement with the City of Perth, the landlord of the leased premises) which are adjacent to the plaintiffs' leased premises. Further, ISPT is not seeking an injunction to have the plaintiffs vacate their premises for 20 weeks. Instead they are only seeking for the plaintiffs to vacate their premises between 10.30 pm and 5.00 am on a limited number of weeknights.68.It must be acknowledged that in Bradto and City Cites the lessor was seeking to exercise a contractual right to enter the premises whereas no such contractual entitlement as between the plaintiffs and ISPT exists here. That distinction be should be acknowledged but not overstated. The court in those cases was required to consider the possible injustice that might arise if the lessees were ultimately correct and there was in truth no entitlement to enter the premises or require them to be vacated. That is the same predicament that confronts the Court in this matter - here, there is a serious question as to whether the plaintiffs' presence in the premises amounts to a tort. 69.Moreover, it is not correct to say (as the plaintiffs appear to contend) that the existence of some form of property right (here, a lease) presents a barrier to the grant of relief. Esso Petroleum Co Ltd v Kingswood Motors [1974] QB 142 considered an application for a mandatory interlocutory injunction in the context of an allegation of interference with contractual relations. That alleged interference had ultimately resulted in property being assigned to another party so as to defeat the contractual arrangements. In opposition to the application for injunctive relief it was suggested that the court was constrained from interfering with vested property rights. At 156 Bridge J concluded:'In my judgment the answer to it is that those doctrines really never meet at all because they are concerned with two entirely different things. The Tulk v Moxhay line of cases is not, as it seems to me, remotely concerned with the tort of conspiracy to induce breaches of contract, and I can see no reason whatever why the powers of the court to act against tortfeasors who bring about breaches of contract by other persons should be limited in the way suggested simply because the breach of contract which the conspirators have succeeded in inducing is one which involves the transfer of title to land … I am not asked to enforce an equitable doctrine which makes some party not privy to a contract nevertheless liable in certain circumstances to perform that contract. I am asked to enforce the personal liability incurred by a tortfeasor to undo the consequences of his tort which could have been restrained before it was committed. In a proper case, I ask myself: what reason can there be in principle why the tortfeasor should not be ordered to undo that which he has done?'

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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