RESCANDO PTY LTD -v- BROGAN & ANOR [1999] WASC 204

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 204
Case No:	CIV:2138/1999	Heard:	18 OCTOBER 1999
Coram:	McKECHNIE J	Delivered:	18/10/99
No of pages:	7	Judgment Part:	1 of 1
Result:	Application dismissed
PDF Version

Parties:	RESCANDO PTY LTD WILLIAM BROGAN WARRAGO PTY LTD
Catchwords:	Interlocutory injunction No new principles
Legislation:	Nil
Case References:	Nil Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471 Foran v Wight (1989) 168 CLR 385 Patrick Stevedores Operations (No 2) & Ors v Maritime Union of Australia & Ors [1998] HCA 31; 153 ALR 641 Peter Turnbull & Co v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 1 QB 458 Sedleigh Denfield v O'Callaghan [1940] AC 880 Shevill v Builders' Licensing Board (1982) 149 CLR 620

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RESCANDO PTY LTD -v- BROGAN & ANOR [1999] WASC 204 CORAM : McKECHNIE J HEARD : 18 OCTOBER 1999 DELIVERED : 18 OCTOBER 1999 FILE NO/S : CIV 2138 of 1999 BETWEEN : RESCANDO PTY LTD

Plaintiff

AND

WILLIAM BROGAN

First Defendant

WARRAGO PTY LTD

Second Defendant

Catchwords:

Interlocutory injunction - No new principles

Legislation:

Nil

Result:

Application dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr L Tsaknis

First Defendant : Mr C L Zelestis QC & Mr R M Edel

Second Defendant : Mr C L Zelestis QC & Mr R M Edel

Solicitors:

Plaintiff : Fiocco Hopkins Nash

First Defendant : Gadens Lawyers

Second Defendant : Gadens Lawyers

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

Nil

Case(s) also cited:

Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471
Foran v Wight (1989) 168 CLR 385
Patrick Stevedores Operations (No 2) & Ors v Maritime Union of Australia & Ors [1998] HCA 31; 153 ALR 641
Peter Turnbull & Co v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 1 QB 458
Sedleigh Denfield v O'Callaghan [1940] AC 880
Shevill v Builders' Licensing Board (1982) 149 CLR 620

(Page 3)

1 McKECHNIE J: This is an application for an injunction seeking orders:

"1. That Defendants do deliver or cause to be delivered forthwith to the Plaintiff at Southern Bills Bay on their respective moorings the vessels the subject of a Charter Agreement made between William Brogan, Warrago Pty Ltd, Rescando, Carlo Antonio Malievaz, Gillian Ena Bailye and Kenneth Bailye dated 20 May 1997, being more particularly the vessels named Miss Coral Bay I (Licence No. 1860) and Miss Coral Bay II (Licence No. 3379) appearing in Item 10 of the Schedule to that Agreement."

2 The…

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 Rescando Pty Ltd v Brogan 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: [1999] WASC 204
Decision Date

CaseChat Overview and Summary

Rescando Pty Ltd, the plaintiff, brought an application against William Brogan and Warrago Pty Ltd, the defendants, seeking an interlocutory injunction to deliver two vessels, Miss Coral Bay I and Miss Coral Bay II, to the plaintiff at Southern Bills Bay. The application arose from a dispute over the charter agreement for the vessels, which was for a period of three years, expiring on 30 September 1999, and included an option to renew. The defendants purported to terminate the agreement on 5 October 1999, and took possession of the boats on 12 October 1999.

The legal issues in this case revolved around the interpretation of the charter agreement, specifically the clauses related to the licence to conduct tours by way of glass-bottom boats over the coral reef at the Ningaloo Marine Park. The plaintiff argued that the defendants were in breach of the agreement because they were not able to comply with the conditions of the agreement due to CALM's new licence issuing arrangements. The defendants, on the other hand, argued that the plaintiff's actions in applying for a licence constituted a breach of the agreement.

The court found that the continuation of the agreement was conditional upon the owner having possession of a CALM licence and that the plaintiff's application for a licence constituted a breach of the agreement. The court also found that the balance of convenience did not favour the plaintiff, as any charter period would effectively come to an end on 31 December 1999, and damages would likely be an adequate remedy.

The application for an interlocutory injunction was dismissed.

Orders