Parker v ATHERTON
[2005] WASC 100
PARKER & ANOR -v- ATHERTON & ANOR [2005] WASC 100
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 100 | |
| 20/05/2005 | |||
| Case No: | CIV:1492/2005 | 27 APRIL & 4 MAY 2005 | |
| Coram: | MASTER SANDERSON | 5/05/05 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Injunction refused | ||
| B | |||
| PDF Version |
| Parties: | KIM PARKER LESLEY RUTH PARKER RICHARD THOMAS ATHERTON KERRY-ANNE ATHERTON |
Catchwords: | Practice and procedure Application for interlocutory injunction Turns on own facts |
Legislation: | Fair Trading Act 1987 (WA) , s 10 Property Law Act 1969 (WA), s 81 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- LESLEY RUTH PARKER
Plaintiffs
AND
RICHARD THOMAS ATHERTON
KERRY-ANNE ATHERTON
Defendants
Catchwords:
Practice and procedure - Application for interlocutory injunction - Turns on own facts
Legislation:
Fair Trading Act 1987 (WA) , s 10
Property Law Act 1969 (WA), s 81
(Page 2)
Result:
Injunction refused
Category: B
Representation:
Counsel:
Plaintiffs : Mr K L Christensen
Defendants : Mr D F Beere
Solicitors:
Plaintiffs : Slee Anderson & Pidgeon
Defendants : Beere May & Meyer
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER SANDERSON: On 27 April 2005, the plaintiff lodged a generally indorsed writ which sought the following relief:
"INDORSEMENT OF CLAIM
The Plaintiffs claim against the Defendants:-
(a) Possession of the land known as Preston River Orchards and described as portion of Wellington Location 2627 and being the whole of the land comprised in Certificate of Title 2057 Folio 732 let to the Defendants by the Plaintiffs by lease dated 29 June 2001 which tenancy has been duly determined by notice to determine served 22 April 2005, alternatively forfeited that day for non payment of rent under the provision for re-entry in the said lease.
(b) The sum of $17,500.00 for arrears of rent.
(c) Damages for breach of the said lease.
(d) An injunction to restrain the Defendants by themselves, their servants or agents or how so ever otherwise from harvesting, disposing of or otherwise dealing with the apple crop presently on the trees on the said land.
(e) The appointment of a receiver with power to harvest, store and sell the said crop.
(f) An injunction to restrain the Defendants by themselves, their servants or agents or how so ever otherwise from preventing the receiver from exercising his or her powers.
(g) Such further relief as the Court deems fit.
(h) Interest pursuant to Section 32 of the Supreme Court Act 1932.
(i) Costs."
2 On the same day, the plaintiff sought, by chamber summons, an interlocutory injunction in terms of par (d) of the indorsement. (The chamber summons also sought an injunction "preventing the receiver from exercising his or her powers". However, the relief sought in the chamber summons did not include the appointment of a receiver.
(Page 4)
- Accordingly, this aspect of the relief was not pursued at the hearing.) The matter came on for hearing on an urgent basis. Both the plaintiffs and the defendants were represented by counsel. However, counsel appearing for the defendants had limited instructions; his firm being the city agents of a country principal. After hearing argument, I granted an injunction to 5 pm on Wednesday, 4 May.
3 By the time the matter came on for hearing again, the plaintiffs had filed a further chamber summons seeking the appointment of a receiver and further consequential relief. The defendants' solicitor, who also appeared as counsel, had sworn an affidavit in answer to the plaintiffs' application. The matter was fully argued. I reserved my decision until the morning of 5 May. At the resumed hearing, I advised the parties that I would discharge the injunction and make no order on the plaintiffs' summons seeking the appointment of a receiver. I indicated to the parties that I would publish reasons for that decision. These are those reasons.
4 The facts in this case are reasonably straightforward. They emerge from an affidavit of the first-named plaintiff sworn 26 April 2005 and filed in support of the application for the injunction. The plaintiffs are the owners of land described in the indorsement of claim and known as the "Preston River Orchards". They have owned the property for nearly 15 years and have operated it through a number of mangers. Located on the orchard are pears, plums and apples. As at the date of this application, the pears and plums had already been picked. The only crop remaining to be picked was the apple crop. The first-named plaintiff says that apples are usually picked in two to three pickings, so as to maximise picking only ripe apples. After examining the apples at the orchard, the first-named plaintiff was of the view that the first pick would be able to commence the week beginning 2 May 2005. If picking was not commenced by 9 May 2005, there was a real risk that at least part of the crop would be lost.
5 By deed of lease dated 29 June 2001, the plaintiffs leased the orchard, as well as the sheds, cool rooms and a house to the defendants. The defendants were to pay a yearly rental on a quarterly basis in advance. A copy of the lease appears as annexure KP1 to the affidavit of the first-named plaintiff.
6 It would appear that the relationship between the plaintiffs and the defendants has not been a happy one. In June of 2002, the defendants issued a writ in the District Court, alleging that the plaintiffs engaged in misleading and deceptive conduct in breach of s 10 of the Fair Trading
(Page 5)
- Act 1987 (WA), as a consequence of which the defendants were induced to enter into the lease. That action has progressed to some extent, although pleading issues are yet to be resolved. The action is not yet listed for trial, and there is no indication when it might be so listed.
7 The first-named plaintiff says that the defendants have had a history of failing to pay rent in accordance with the terms of the lease. A number of default notices have been issued. On each occasion, the defendants have rectified the default. The first-named plaintiff says that there have been approximately five defaults in the past.
8 On 30 March 2005, the sum of $17,500 was due and payable pursuant to the lease. The rent was not paid. The plaintiffs instructed their solicitors to issue a default notice. That was done. The default notice was dated 4 April 2004, although it would appear that this date was incorrect: see par 9 of the first-named plaintiff's affidavit. The notice required rectification of the default by 18 April 2005. The first-named plaintiff says that the defendants did not rectify the default, and, accordingly, on 22 April 2005, the plaintiffs instructed their solicitors to prepare a notice of termination. This document was dated 22 April 2004. Again, it was wrongly dated.
9 The first-named plaintiff says that, on the afternoon of 22 April 2005, he attended with the bailiff at the orchard. The notice of termination was fixed to the front door of the house. There was then a discussion between the bailiff and persons occupying the house - these persons not being the defendants. After the service of the notice of termination, the first-named plaintiff says that he arranged for "a repossessor" to accompany him to the orchard to take possession of all of the plant and equipment and to retake possession of the land. On arrival at the property, the first-named plaintiff and his repossessor were met by the first-named defendant. A discussion ensued. Without going into details, it is sufficient if I say that the first-named defendant refused the first-named plaintiff and the repossessor access to the property and demanded that they remove themselves from the premises. That they did. It was then that these proceedings were instituted.
10 At the second hearing, the defendants' solicitors handed up an affidavit of Dennis Frank Beere sworn in opposition to the application. Counsel for the plaintiffs objected to the affidavit on the ground that par 3 was inadmissible. After hearing counsel on this issue, I admitted the affidavit into evidence. I indicated to the parties that I was satisfied that
(Page 6)
- the material in the affidavit was admissible. I said that I would explain my decision in these reasons. It is convenient if I do so at this point.
11 Counsel for the plaintiffs' first objection was that par 3 did not, by its terms, indicate that the deponent believed the truth of matters to which he was swearing. The choice of words in the introduction to par 3 may be slightly unfortunate. But it is clear from each of the subparagraphs where the deponent's information and belief came from and that he believes those instructions to be true. The deficiencies in the introduction are not sufficient to cast doubt of the veracity of the evidence contained in the affidavit. It is also the case that a number of the subparagraphs are argumentative and might properly be characterised as submissions. These irrelevant matters can be put to one side. The hearsay matters included in the affidavit locate the source of the hearsay material and, in my view, based upon the introduction to par 3 satisfy the requirement that the deponent believes the truth of these matters. I was therefore satisfied the affidavit should be admitted into evidence. As it turned out, it was not necessary to place any reliance upon this affidavit.
12 Both parties agreed as to the test for an interlocutory injunction. First, it is necessary for the party seeking the injunction to satisfy the Court that there is a serious question to be tried. If the Court is so satisfied, then the balance of convenience is to be considered. Neither party spent any time debating these well established principles.
13 I am satisfied that this is a case where there is a serious question to be tried. The plaintiffs say that the lease of the orchard has been terminated and they are entitled to possession of the property. They point to the terms of the lease, the notice of default, the failure on the part of the defendants to rectify the default and the notice of termination of the lease. Counsel for the plaintiffs submitted that his clients had a very strong case, to the point of being unanswerable. On behalf of the defendants, it was submitted that the plaintiffs had no proper basis upon which they could terminate the lease. It was the defendants' position that a default under the lease only occurred if the rental was not paid within 14 days of the date due for payment: see cl 13.01(a)(i) of the lease. In this case, that had not happened, so there was no basis upon which a default notice could have been issued. Furthermore, it was submitted that the plaintiffs had not complied with s 81 of the Property Law Act 1969 (WA). In these circumstances, it was submitted, the lease was still on foot and the notice of termination was of no force or effect. Even if that was wrong, so it was submitted, as at 5 March 2005 the arrears of rent had been paid. On the defendants' case, that would give rise to a right to relief against forfeiture.
(Page 7)
- It was said that a claim to exercise such a right was unanswerable and the defendants were entitled to retain possession of the property.
14 There is no doubt that the arguments of the respective parties have merit. It is inappropriate for me to make any comments on the relative strengths of weaknesses of the respective positions. What I have to determine is whether or not there is a serious question to be tried. As I have said, I am satisfied that there is. The question, then, was where the balance of convenience lay.
15 The defendants, rightly or wrongly, are still in possession of the orchard. They derive their livelihood from picking and selling the fruit grown on the orchard. If they were restrained by injunction from picking the fruit, the task would have to be undertaken under the direction of a receiver. The receiver would necessarily incur costs in arranging for the picking of the fruit. At some stage, the receiver's costs would have to be met by one or other of the parties. For their part, the defendants had every incentive to pick the fruit and maximise their return from doing so. If, at the end of the day, a Court was to determine that the lease had been properly terminated and the apples were the property of the plaintiffs, then the defendants could be called to account to the plaintiffs for the income they received from picking the fruit. But it seemed to me to be altogether preferable to allow the defendants to get on with the business of running the orchard - that is, picking the fruit - which is something they were keen to do, rather than introduce a third party to the process. The balance of convenience did not favour the continuation of the injunction.
16 For these reasons, I discharged the injunction and adjourned the application for the appointment of the receiver. I ordered that the costs of all appearances and the costs on the application to appoint the receiver be reserved.
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