PRICE -v- METROPOLITAN CEMETERIES BOARD [No 2] [2016] WASC 77
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 77 | |
| Case No: | CIV:2990/2015 | 22 DECEMBER 2015 | |
| Coram: | PRITCHARD J | 22/12/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Injunction granted | ||
| B | |||
| PDF Version |
| Parties: | RACHEL DAWN PRICE METROPOLITAN CEMETERIES BOARD QUENTIN SOUCHA GALYER |
Catchwords: | Injunction Application for interlocutory injunction Balance of convenience favours the grant of an injunction Serious question to be tried Where damages would not be an adequate remedy |
Legislation: | Cremation Act 1929 (WA) |
Case References: | Price v Metropolitan Cemeteries Board [2015] WASC 501 Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
METROPOLITAN CEMETERIES BOARD
First Defendant
QUENTIN SOUCHA GALYER
Second Defendant
Catchwords:
Injunction - Application for interlocutory injunction - Balance of convenience favours the grant of an injunction - Serious question to be tried - Where damages would not be an adequate remedy
Legislation:
Cremation Act 1929 (WA)
Result:
Injunction granted
Category: B
Representation:
Counsel:
Plaintiff : Mr J T London
First Defendant : No appearance
Second Defendant : In person
Non-party : Mr M Snobar
Solicitors:
Plaintiff : Macdonald Rudder
First Defendant : No appearance
Second Defendant : In person
Non-party : Hale Legal
Case referred to in judgment:
Price v Metropolitan Cemeteries Board [2015] WASC 501
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
- PRITCHARD J:
(This judgment was delivered extemporaneously on 22 December 2015 and has been edited from the transcript.)
1 This is an application by the plaintiff, Ms Rachel Dawn Price, brought by chamber summons dated 12 December 2015. The plaintiff seeks an interlocutory injunction restraining the first defendant, the Metropolitan Cemeteries Board (the Board), from releasing the ashes of Mr Christian Ross Galyer, deceased, (the deceased) of 60 Sunrise Circle, Ellenbrook, to any person other than the plaintiff. The order sought is a continuation of an order I made on an urgent ex parte interim basis on 12 December 2015 to restrain the Board from releasing the ashes of the deceased to any person until 18 December 2015.
2 These reasons should be read in conjunction with the reasons I delivered on that occasion, which set out in further detail the circumstances giving rise to this application and the applicable legal principles.1
The factual basis for the application
3 The application is supported by an affidavit sworn by the plaintiff on 12 December 2015, and an affidavit sworn by Mr Brian John Galyer, the deceased's father, on 12 December 2015.
4 The situation, in brief, is that the deceased passed away on 29 November 2015. The plaintiff deposes in her affidavit that she was in a de facto…
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- Case
- [2016] WASC 77
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the balance of convenience favoured the grant of an injunction, whether there was a serious question to be tried on the merits, and whether damages would not be an adequate remedy if the plaintiff were to ultimately succeed in the case. The court needed to determine if the plaintiff had demonstrated that they had a strong likelihood of success in establishing the restrictive covenant and that the balance of convenience favoured granting the injunction.
In delivering the judgment, the court found that the plaintiff had demonstrated a serious question to be tried and that the balance of convenience favoured the grant of an injunction. The court was satisfied that the plaintiff had made out a strong case for the existence of a restrictive covenant, and that the defendant's activities would irreversibly prejudice the plaintiff's rights if the covenant was found to exist. The court also determined that damages would not be an adequate remedy for the plaintiff if they were to succeed on the merits, as the harm caused by the defendant's actions would be irreparable. Based on these findings, the court granted the plaintiff's application for an interlocutory injunction.
Orders
Orders of the court
Injunction granted
Background
Background to the litigation
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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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