Price v Imagination Enterprises Pty Ltd
[2000] WASC 318
•12 DECEMBER 2000
PRICE -v- IMAGINATION ENTERPRISES PTY LTD [2000] WASC 318
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 318 | |
| Case No: | CIV:2509/2000 | 12 DECEMBER 2000 | |
| Coram: | MURRAY J | 12/12/00 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | DAVID ROBERT PRICE IMAGINATION ENTERPRISES PTY LTD (ACN 008 963 684) |
Catchwords: | Practice and procedure Application for interlocutory injunction No serious question capable of supporting grant Turns on own facts |
Legislation: | Nil |
Case References: | Nil Bruce v Tyley (1916) 21 CLR 277 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Re: Inkson's Trusts (1855) 52 ER 878 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
IMAGINATION ENTERPRISES PTY LTD (ACN 008 963 684)
Defendant
Catchwords:
Practice and procedure - Application for interlocutory injunction - No serious question capable of supporting grant - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr R G S Harrison
Defendant : Mr C Caine
Solicitors:
Plaintiff : Deacons
Defendant : Corrin Caine
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bruce v Tyley (1916) 21 CLR 277
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Re: Inkson's Trusts (1855) 52 ER 878
(Page 3)
1 MURRAY J: The application is one for interlocutory relief. Although the first injunction sought is in terms a mandatory injunction in its form, concerned with the delivery up to the plaintiff of possession of the residential premises known as the White House situated on the land, together with a right to pass and repass over the land for the plaintiff and his agents and invitees to gain access, as the case has developed it is effectively, I think, that an injunction in prohibitory form is sought preventing the defendant from impeding a right of occupancy asserted by way of a proprietary interest in the particular residential property together with associated rights to have access to it. What is sought is the capacity to occupy it as a home within the concept which the plaintiff asserts arises out of his participation in the enterprise of communal living with its various associated features to which the affidavits refer, the concept of what is described as a "home for life".
2 As Mr Harrison says the claim is effectively to a form of life tenancy gifted, as I would put it, to the plaintiff. It is a claim for a proprietary interest of that kind conditioned by the plaintiff's obligation to maintain the premises and matters of that kind, to pay the outgoings in respect of them, but otherwise rent-free and, as I say, terminable only, the gift having been made in these terms, upon his death or earlier relinquishment of the proprietary interest concerned.
3 I have put it in terms of a proprietary interest of that kind because that does have a considerable impact upon the consideration of issues such as the balance of convenience which might affect in a discretionary way the grant or refusal of interlocutory relief. It will seldom be the case if the court discerns a reasonably arguable case, a serious question to be tried in relation to the right asserted, which is of a proprietary character, that it will be persuaded that upon grounds of the balance of convenience the plaintiff might be denied the interlocutory capacity to exercise that right whilst the parties were engaged in the process of litigation designed to effectively and finally determine its existence.
4 I have mentioned in that oblique way the tests commonly accepted for the grant of interlocutory relief of this kind. The crucial and first question must be whether, on the basis of the evidence advanced by the plaintiff and that of the defendant if it is not in substantial conflict with the affidavits of the plaintiff in a way which would require the court to make a decision between two competing versions by effectively weighing the paper, it is established that there is a serious question to be tried which would support the grant of relief in final form of the kind which is now
(Page 4)
- sought on an interlocutory basis pending trial and the final determination of the principal litigation.
5 Then, as I say, that being the case, and only upon that being established, the court will consider the balance of convenience, whether that favours, as in this case, the preservation of the status quo of the asserted right pending its final determination or whether the balance of convenience dictates some other course be taken and that there is a capacity effectively for the plaintiff to be left to the litigation process and a right sounding in damages.
6 The first and most important of the matters at issue concerns the nature of the right which has been asserted. I have described it in the way that I have, effectively in reliance upon the plaintiff's affidavit and having regard to the way in which it is pleaded in par 12 and par 13 of the statement of claim. Although there is a general offer of a tenancy upon commune land which is asserted in par 12, upon the basis of the plaintiff being, if I may use the expression, a fully paid-up member of the enterprise described as a commune which dates back to 1988, what is especially relied upon in the present proceedings is a right in respect of that part of the property of the defendant which is lot 1 and described as being the whole of the land in the certificate of title, volume 1558, folio 944.
7 It is upon that land, as I understand it, that the White House is erected and that was a property which was acquired, so the certificate of title before me in evidence reveals and as is pleaded in the statement of claim, on 31 October 1991. So the offer with which the case is concerned, it seems to me, as it is pleaded, is that which is set out in par 13 of the statement of claim, an express renewal of the general offer of a "home for life" in respect of that particular property in 1998 to the plaintiff by Alan Powers on behalf of the defendant.
8 And so the crucial thing is that the offer is that of the defendant by one of its statutory officers, the defendant being the registered proprietor of the land and, as I have understood the evidence and the way in which the case is formulated, the trustee company in respect of the Denmark Trust, the particular form of instrument and arrangement chosen to express the communal nature of the interests of the various people involved in the pieces of land of which the defendant became the registered proprietor. So in par 13 it is pleaded that the offer was made by Mr Powers on behalf of the defendant, varied by the additional terms that the defendant would carry out certain capital improvements at the cost of
(Page 5)
- the defendant to the residence on lot 1 offered to the plaintiff. Indeed, that is precisely the tenor of the affidavit evidence except that when more particularity is placed into the process a somewhat different picture, I think, emerges.
9 I refer to par 43 to par 46 inclusive of Mr Price's affidavit sworn on 3 November where he deposes that by early 1998 Mr Powers and his wife Sheila had a number of conversations with the plaintiff touching upon a judgment in different proceedings which related to a dispute between, as I have understood it, without having a precise recollection of the form of the proceedings, one Colin Hayes and other interests in the communal property and the affairs of the defendant. That dispute was said to have been resolved by judgment and in par 43, that having been the case, it is put that Mr and Mrs Powers assured the plaintiff that, "I could be confident about occupying the White House as a home for life. I finally accepted the home for life proposal." As he says, that was a reflection of his perceived entitlements as a result of his long-standing membership both of the communal enterprise and the fact that he was a unit holder in the Trust and had legal entitlements of that kind.
10 In par 45 Mr Price deposes that when he made the decision to occupy the White House, by which I take him to mean that he accepted the offer that was made to him, he ultimately said to Mrs Powers words to the effect that they should wait until they completed the transfer of Mr Hayes' share in the defendant and then voted the plaintiff back on to the board so that a clear line of control of decisions of the defendant would be established. Mrs Powers, he says, however responded, "We are only weeks away from getting control of the board of directors and the company's bank account. Move down now and by the time you have moved in your furniture and settled in, then we will have money available. We will then have the funds available to carry out repairs to the White House which are needed."
11 So that is the plaintiff's evidence about the circumstances in which the offer was made which caused him to take up residence in the White House upon the basis, he asserts, that he had been given at that point what was effectively a tenancy for life in that particular residence.
12 Mrs Powers has made an affidavit on 16 November which deals with those issues and in her par 43, which is responsive to Mr Price's par 43, she disputes the accuracy of that evidence, saying, as seems to be the case, that it was not until 13 May 1998 that the order was made which required Mr Hayes to transfer his share in the company. It was on 13 May 1998
(Page 6)
- that Templeman J made his order which was the final order in the proceedings affecting the situation of Mr Hayes. Then she deposes that Hayes instituted an appeal on 22 May 1998 and says, "We were still in dispute with Hayes," and she adds, "and for this and other reasons neither myself nor my husband had the authority to commit the company or the trust to providing Price with a home for life, even if we had wanted to do so." She says that Mr Price was aware of that situation and the dispute was not resolved with Hayes finally until December of the following year, 1999.
13 There is of course an echo of that version in what Mr Price deposes Mrs Powers said to him during the course of the debate which he describes as having occurred in early 1998 which led, he says, to the offer being made to him. Mrs Powers goes on to add in respect of par 45 and par 46 of Mr Price's affidavit that the conversation to which those paragraphs relate did not take place. Of course that is a dispute of fact which upon the face of the affidavits I may not resolve.
14 But some matters seem to me to be clear. In the first place, as I have understood the evidence which emerges from Mr Price's par 28, as at the relevant time at the beginning of 1998, Mr Colin Hayes was a director of the defendant, Mr Alan Powers was, having been appointed in May of 1990, and because the plaintiff had resigned as a director following his bankruptcy and another director at one time, Mr Ryan, had died, those were the only two directors. If the plaintiff is to be held to have a serious question to be tried in relation to the entitlement to a proprietary interest of the kind mentioned in the land and the residence upon it, it must in my opinion be the case that it can be discerned that there has been an arguably valid grant by the defendant. That might only be made by resolution of its directors, its management.
15 The existence of the dispute with Hayes and the other evidence emerging entirely from Mr Price's affidavit not only indicates that the plaintiff has not established a grant of that kind but rather suggests, in the exchanges about which he deposes between himself and Mr and Mrs Powers, that no such formality or entitlement to make an offer existed on the part of Mr Powers, even if it was then, and accepting that it was then, an offer which was made by him.
16 There is in my opinion therefore not the necessary substratum of evidence capable of establishing that the plaintiff has in the proceedings before the court established a serious question to be tried of a kind which
(Page 7)
- would support the grant of interlocutory relief by way of injunction in the form of par 1 or par 2 of the chamber summons.
17 In respect of that conclusion it has been entirely unnecessary and I think it would have been inappropriate in any event for me to make any determinations concerned with any issues which might emerge out of the bankruptcy of the plaintiff which commenced on 2 July 1991 and ended on 23 July 1994 and Mr Price's handling of that process and the effects of that process in relation to any matter potentially relevant to any litigation between the parties.
18 As to the matters raised by the defendant, it seems to me that in the absence of having granted an interlocutory injunction of the kind sought by the plaintiff there is no ground for me, nor necessity now I think, to make any orders of the kind referred to in par 2 and par 3 of the defendant's minute. What the defendant does about electricity supplied to its property strikes me as a matter upon which I need not enter in any way and I see no basis, even if an application was properly and with rather more formality than is presently the case before the court, to conclude that despite the plaintiff's interests in the defendant he ought to be restrained from entering upon the property of the defendant in Scottsdale Road, Denmark. I would decline to make any such orders.
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