Roberts v Roberts - [2020] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ROBERTS v ROBERTS
[2020] SASC 110
Reasons for Decision of The Honourable Justice Blue
19 June 2020
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - INJUNCTIONS TO PRESERVE STATUS QUO AND PROPERTY PENDING DETERMINATION OF RIGHTS
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - EX PARTE APPLICATIONS
Applications relating to an interlocutory injunction.
In the action, the applicant claims an entitlement to purchase the respondent’s property pursuant to an oral contract; alternatively, that the respondent holds the property on a constructive trust for him or subject to an equitable lien.
On 31 August 2008, an interim injunction was granted restraining the respondent from dealing with his interest in, or evicting the applicant from, the property. The injunction was expressed to operate until further order but the application for an interlocutory injunction was adjourned to 7 September 2018.
On 7 September 2018 no issue was raised by the respondent about the continuation of the injunction.
On 28 November 2018, the parties entered into a Heads of Agreement for the applicant to purchase the property, subject to a condition that a release by the applicant of his rights to apply for a family provision order be approved by a court.
In March or April 2020 the Heads of Agreement was terminated. The trial of the action was subsequently listed for September 2020.
The respondent contends that, unless the applicant pays $15,000 per month for his occupation of the property, the injunction should be discharged.
Held:
1. The original application for an injunction was served on the respondent’s solicitors and was not made “without notice” within the meaning of rule 246 of the former Supreme Court Civil Rules 2006 (at [75]-[79]).
2. By May 2020 what began as an interim injunction had become an interlocutory injunction (at [85]-[90]).
3. The applicant did not breach the duty of candour at the hearing on 31 August 2018 (at [96]-[98]).
4. The balance of convenience does not favour discharging the existing injunction and granting a new injunction subject to a condition that the applicant pay $15,000 per month to the respondent (at [128]).
5. A contention advanced by the respondent in argument after evidence had been adduced that in the alternative the injunction should be discharged and a new injunction granted subject to a condition that the applicant provide security by way of a charge over real estate for the undertaking as to damages ought not to be entertained because evidence was not adduced on the basis of which such a contention could be decided (at [130]-[131]).
6. Application by the respondent to discharge the injunction dismissed (at [133]).
Succession Act 2006 (NSW) s 95(3); Supreme Court Civil Rules 2006 (SA) rr 131, 246, referred to.
Adnyamathanha Traditional Lands Association v Minister for Energy & Mining (SA) [2018] SASC 142; Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, considered.

ROBERTS v ROBERTS
[2020] SASC 110
Civil
BLUE J:

These reasons address the continuation of an injunction restraining the respondent from dealing with or evicting the applicant from the respondent’s grazing property in New South Wales (the property).
In this action, the applicant, Grant John Roberts (Grant), sues the respondent, being his father Jack Roberts (Jack), claiming that he has an entitlement to purchase the property pursuant to an oral contract; alternatively, that Jack holds the property on a constructive trust for him (relying on causes of action of proprietary estoppel and constructive trust); and alternatively, that Jack holds the property subject to an equitable lien.
On 31 August 2008, shortly after the commencement of the action, an interim injunction was granted restraining Jack from dealing with his interest in, or evicting Grant from, the property. The injunction was expressed to operate until further order but the application for an interlocutory injunction was adjourned to 7 September 2018.
On 7 September 2018 Jack foreshadowed an intention to file an application to cross-vest the action to the Supreme Court of New South Wales. In due course, Jack filed that application and it was listed for argument. However, that argument was vacated when the parties agreed to mediate.
On 28 November 2018, at the mediation, the parties entered into a Heads of Agreement (the Heads of Agreement), whereby it was agreed that Grant would purchase the property for $7.25 million. This agreement was effectively subject to a condition subsequent under clause 8 that a release by Grant of his rights to apply for a family provision order against Jack and his wife Nola Roberts (Nola) under Chapter 3 of the Succession Act 2006 (NSW) be approved by a Court pursuant to subsection 95(3) of that Act.
On 3 February 2020 Nola instituted action 87 of 2020 against Grant (naming Jack as an additional defendant) (the 2020 action) seeking a declaration that Grant had repudiated the Heads of Agreement. On 26 March 2020 solicitors acting for Nola wrote to Grant’s solicitors purportedly terminating the Heads of Agreement on the ground of repudiation. On 30 April 2020 Grant’s solicitors wrote to the solicitors acting for Jack and for Nola purportedly terminating the Heads of Agreement on the ground of repudiation due to wrongful termination.
On 8 May 2020 Jack’s solicitors wrote to Grant’s solicitors requesting that Grant pay $15,000 per month for his occupation of the property, commencing on or before 11 May 2020 and on the 11^th day of each month thereafter. They said that otherwise Jack would “proceed to have the confirmation hearing of the ex parte injunction heard and determined and/or to otherwise apply to discharge the order of 31 August 2018 and to seek vacant possession of the property”.
On 5 June 2020 I heard argument whether the injunction needed to be confirmed; if so whether it should be confirmed and whether it should be on terms as to a monthly payment of $15,000; and if not whether it should be discharged on Jack’s oral application in the absence of such monthly payments.
Background
Jack purchased the property, known as Pulgamurtie, from his mother in 1961. The property comprises about 186,000 acres and is located about 235 kilometres north of Broken Hill.
Jack and Nola have three children: Grant, Adrian Mark Roberts (Mark) and Jacqueline Louise Roberts (Louise).
Grant was born in 1964. Between 1979 and 2002 Grant worked on the property. In 2002 Jack and Grant entered into a 50:50 partnership to carry on the grazing business on the property. This continued until 2012.
Between 1980 and 1988 Mark worked on the property. Between 1988 and 1994 he returned on several occasions to work on the property for 12 or 18 months at a time. He has not lived or worked on the property since 1994.
Louise lived and worked on the property (apart from about 12 months in 1982) until 2010. She has not lived on the property since 2010 but it is pleaded in the defence that she returned from time to time thereafter and undertook some work on those occasions.
In 2012 Grant purchased Jack’s 50 per cent interest in the sheep and cattle on the property. Since 2012 Grant has carried on the grazing business on the property.
Grant alleges, and Jack denies, that in 2012 they entered into an oral contract for Grant to purchase the property from Jack for $2.6 million. Grant alleges, and Jack denies, that the contract has been partly performed such that it is enforceable in equity notwithstanding that it is not in writing.
Grant alleges in the alternative, and Jack denies, that from 1979 onwards Jack created and/or encouraged an expectation that he would transfer the property to Grant for a fair price, and from 2012 for $2.6 million, on terms reasonably capable of being met; Grant acted in various ways in reliance on that expectation; and Grant would suffer detriment if the expectation were not met. Grant relies on causes of action of proprietary estoppel and constructive trust.
Grant alleges in the alternative, and Jack denies, that since 2012 he has expended moneys and undertaken work maintaining and improving the property in reliance on the expectation created or encouraged by Jack, the benefit of which Jack has unjustly received. Grant relies on a cause of action of equitable lien.
On 19 February 2018 Grant’s solicitor, Sebastian Hill of Boylan Lawyers, wrote a letter to Jack and Nola articulating Grant’s claims and demanding that they agree to complete a sale of the property in accordance with the terms of the alleged 2012 contract.
On 6 March 2018 Jack and Nola’s solicitor, Eric Craney of Doyle Kingston & Swift wrote to Mr Hill denying the claim.
On 7 March 2018 Grant caused a caveat to be registered over the property to secure his claimed interest in it pursuant to the alleged 2012 contract.
On 3 August 2018 Jack caused an application for preparation of lapsing notice to be lodged in respect of the property with New South Wales Land Registry Services. On the same date, Mr Craney wrote to Mr Hill enclosing a copy. The letter and application were sent by Stacie Hall of Doyle Kingston & Swift to Mr Hill by email on 14 August 2018 after Mr Hill apparently said that his firm no longer maintained the post office box to which the 3 August letter was sent.
On 14 August 2018[1] Doyle Kingston & Swift sent by email a letter to Mr Hill dated 4 July 2018 proposing that Grant pay rent of $15,000 per month commencing on 13 August 2018. The letter said that Jack was prepared to consider alternative arrangements and, if agreement could not be negotiated, Grant should commence to make alternative arrangements for his stock.
[1] Mr Hill in paragraph 10 of his affidavit sworn on 28 August 2018 said that this letter was received by email on 14 August 2018. There is no explanation by Jack why the letter was dated 4 July but not sent until 14 August.
Although Doyle Kingston & Swift used the term “rent”, it is common ground that there was never any agreement between Jack and Grant for Grant to pay rent and rent is only payable pursuant to a lease or rental agreement. Effectively Jack is seeking payment of an occupation fee by reference to the mesne profits that Jack would be entitled to recover from Grant if he were entitled to evict him and Grant remained in possession of the property as a trespasser. For ease of reference, I refer to the $15,000 per month sought by Jack as an occupation fee.
In August 2018 Jack and Nola issued an invoice to Grant for $15,000 for use of the property. They issued monthly invoices for $15,000 thereafter. These invoices were not paid.
On 23 August 2018 Mr Craney sent an email to Boylan Lawyers stating that Jack would treat the 21 day period [for removal of the caveat pursuant to the 3 August application] as running from 10 August. This entailed that that period would expire on 31 August 2018.
On 27 August 2018 Mr Craney sent by email a letter to Mr Hill stating that, if the first two instalments of $15,000 had not been paid by 14 September 2018, Jack would seek court orders to evict Grant from the property.
On 27 August 2018 Grant instituted this action by summons supported by a statement of claim.
On 28 August 2018 Rianie Huggins of Boylan Lawyers sent an email to Doyle Kingston & Swift attaching a letter from Mr Hill confirming that the summons and statement of claim were served personally on Jack the previous evening and enclosing copies. The letter inquired whether Doyle Kingston & Swift had instructions to accept service of an interlocutory application.
On 29 August 2018 at 9.17 am Joanna Stacey of Doyle Kingston & Swift telephoned Ms Huggins and said that Stacie Hall was looking after the matter while Mr Craney was away and they were happy to accept service on Jack’s behalf.
On 29 August 2018 Grant filed an interlocutory application seeking an extension of time for removal of the caveat and interlocutory injunctions restraining Jack from dealing with or evicting Grant from the property. The application was made specially returnable before a Master on 31 August at 10 am.
The application was supported by an affidavit of Mr Hill sworn on 28 August 2018 in which Mr Hill exhibited correspondence between the parties and their solicitors between February and August 2018.
On 29 August 2018 at about 12.10 pm Mr Hill sent an email to Doyle Kingston & Swift attaching a letter enclosing an interlocutory application and Mr Hill’s supporting affidavit sworn on 28 August 2018. The letter stated that the matter was listed for hearing on 31 August at 10 am. There is a dispute whether Doyle Kingston & Swift, or at least Mr Craney, received the email or one or more attachments. I address that dispute below.
On 30 August 2018 Mr Hill swore a second affidavit exhibiting a copy of an affidavit sworn by Grant on that date verifying the allegations of fact in the statement of claim (subject to two corrections to dates).
On 30 August 2018 at 4.32 pm Mr Hill sent an email to Doyle Kingston & Swift attaching a letter enclosing Mr Hill’s second affidavit sworn on 30 August 2018.
On 31 August 2018 Doyle Kingston & Swift sent by email a letter to Boylan Lawyers acknowledging receipt of the statement of claim, summons and affidavits served in the matter. The letter said that they had not been served with the interlocutory application referred to in Boylan’s correspondence and were not aware of its content. They requested a copy of any documents relating to the interlocutory application that they had not yet received.
On 31 August 2018 at 9.39 am Mr Hill sent an email to Doyle Kingston & Swift in response enclosing a letter referring to the telephone conversation with Ms Stacey on 29 August and the emails sent on 29 and 30 August 2018 and asserting that the interlocutory application and supporting material had been properly served.
On 31 August 2018 Doyle Kingston & Swift replied to Mr Hill’s letter acknowledging that Mr Hill’s affidavit sworn on 30 August had been emailed to them on that date. The letter asserted that the interlocutory application had not been received and requested that it be re-sent.
On 31 August 2018 at 10 am the interlocutory application came on for hearing before a Master. Upon the usual undertaking as to damages being given on behalf of Grant, orders were made until further order and on an interim basis:
1extending the operation of the caveat;
2restraining Jack from dealing with his interest in the property without Grant’s written consent or by order of the Court (the first injunction);
3restraining Jack from evicting Grant from the property (the second injunction); and
4adjourning further consideration to 7 September 2018.
On 31 August 2018 Boylan Lawyers sent by email to Doyle Kingston & Swift a letter from Mr Hill setting out the orders made by the Master.
On 31 August 2018 at 11.13 am Ms Huggins sent by email to Mr Craney a copy of Mr Hill’s letter setting out the orders made by the Master.
On 31 August 2018 at 2.13 pm Mr Craney sent an email to Ms Huggins saying that he was currently in Vietnam and requesting her to liaise with his assistants Ms Stacey or Ms Hall.
On 7 September 2018, at the adjourned hearing before the Master, Jack’s Adelaide solicitor Melissa Yule (acing as town agent for Doyle Kingston & Swift) said that he intended to apply for an order cross-vesting the action to the Supreme Court of New South Wales.
On 21 September 2018 an interlocutory application was filed on behalf of Jack seeking an order cross-vesting the action to the Supreme Court of New South Wales.
On 5 October 2018 the cross-vesting application was listed for argument on 30 October 2018.
On 30 October 2018, the cross-vesting application was dismissed by consent and the matter was referred to mediation before a Justice of the Court.
On 15 November 2018 Jack filed a defence to the statement of claim. By paragraph 56 of the statement of claim, Grant had pleaded that Jack now sought to deny the expectation created or encouraged by him by amongst other things saying that Grant would be required to leave the property if he could not pay $8.3 million for it. By paragraph 56 of his defence, Jack denied the allegation and said that he would not require Grant to leave the property if he could not pay a market value amount for it (such that Grant would continue to have the use of the property to run his livestock, rent-free).
On 28 November 2018, at the mediation, the parties entered into the Heads of Agreement. The Heads of Agreement provided for Grant to purchase the property and all equipment used on it excluding defined personal items for a total of $7.25 million. The first payment towards the purchase price of the property was to be $3.5 million payable by the later of 90 days of the date of the agreement and 30 days of an approval order being made pursuant to subsection 95(3) of the Succession Act 2006 (NSW). Thereafter Grant was to pay 15 annual instalments of $250,000 per year commencing on the second anniversary of the first payment of $3.5 million.
In December 2018 a directions hearing in this action was adjourned administratively by consent to 17 June 2019 to await institution of a proceeding in New South Wales to seek approval pursuant to clause 8 of the Heads of Agreement.
On 17 June 2019 a directions hearing in this action was adjourned to 13 December 2019 for the same purpose.
On 13 August 2019 Jack and Nola instituted an action in the New South Wales Supreme Court seeking approval of the release by Grant of his rights pursuant to section 95 of the Succession Act 2006 (NSW).
On 13 December 2019 a directions hearing in this action was adjourned to 30 April 2020 to await the hearing and determination of the New South Wales action.
On 3 February 2020 Nola instituted the 2020 action. On 26 March 2020 Nola purportedly terminated the Heads of Agreement. On 30 April 2020 Grant purportedly terminated the Heads of Agreement. It is common ground that on any view the Heads of Agreement has now been terminated.
On 8 May 2020 Jack’s solicitors wrote to Grant’s solicitors requesting that Grant pay $15,000 per month for his occupation of the property, commencing on or before 11 May 2020. They said that otherwise Jack would “proceed to have the confirmation hearing of the ex parte injunction heard and determined and/or to otherwise apply to discharge the order of 31 August 2018 and to seek vacant possession of the property”.
On 14 May 2020 the action was listed for trial to commence on 21 September 2020. Jack asked that the question whether the injunction granted on 31 August 2018 should be confirmed be listed for argument. It was listed for argument on 5 June 2020.
The hearing
Grant tendered the affidavits by Mr Hill sworn on 28 and 30 August 2018 together with further affidavits sworn by him on 31 March and 4 June 2020. Grant also tendered an affidavit sworn by Jack on 19 October 2018 (paragraphs 3, 12, 13 and 14); the email and attached letter from Mr Hill to Doyle Kingston & Swift of 31 August 2018; and a letter dated 24 October 2019 from Ms Hoskins to Ms Huggins requesting details of Grant’s approval for finance and foreshadowing receipt of instructions to terminate the Heads of Agreement if a response was not received within 14 days.
Jack tendered affidavits sworn by his Adelaide solicitor Shona Hoskins on 21 May and 5 June 2020; together with the two letters from Doyle Kingston & Swift of 31 August 2018.
Grant initially objected to the receipt of exhibits 2 to 5 to, and paragraph 7 of, Ms Hoskins’ second affidavit on the ground of lateness. I deferred ruling on the objection until I heard the parties’ submissions. It is not clear that Grant persists with his objection but, if he does so, I overrule it and admit that evidence.

Exhibits 3 and 4 are title searches of properties at Ascot Park and Broken Hill referred to in Mr Hill’s affidavit sworn on 4 June 2020. They show that the properties are owned by Veimar Nominees Pty Ltd. Exhibit 2 is an ASIC search of Veimar Nominees Pty Ltd showing that its directors and shareholders are Grant and his wife Tatiana. These documents only became important as a result of Mr Hill’s 4 June affidavit referring to them and describing them as being owned jointly by Grant and Tatiana under the business name VM Nominees. It is therefore justifiable that an affidavit exhibiting the searches was not prepared until after receipt of Mr Hill’s affidavit. The information contained in the searches appears to be uncontroversial and incontrovertible. The affidavit also corrects what might otherwise be a misapprehension caused by the expression in Mr Hill’s affidavit that the assets are jointly owned by Grant and Tatiana, which although true in the colloquial or commercial sense is not strictly true in the legal sense. No prejudice arises to Grant as a result of the timing of the production of these documents.
Exhibit 5 is a one page document entitled “Business Structure – Roberts Group” produced on subpoena by finance brokers in the 2020 action. This document was obtained by Jack in a different action. I granted leave to use that document in this action. The document shows that Veimar Nominees Pty Ltd is trustee of the K & R Family Trust which owns, amongst other things, two rental properties, which I infer are the Ascot Park and Broken Hill properties referred to above. It shows that the beneficiaries of the Trust are Grant, Tatiana, their children and a company controlled by them. This document is relevant for the same reasons as exhibits 2 to 4 and its late production by Jack is justified for the same reasons. No prejudice arises to Grant as a result of the timing of the production of this document.
Paragraph 7 of Ms Hoskins’ affidavit merely provides clarification concerning expenditure by Jack that was the subject of her first affidavit. It is responsive to Mr Hill’s 4 June affidavit and its lateness is therefore justified. It is of only very marginal weight. No prejudice arises to Grant as a result of the timing of the production of this paragraph.
Does the onus lie on Grant to justify an interlocutory injunction?
Is a confirmation hearing required?
Jack contends that the hearing on 31 August 2018 was made “without notice” to him within the meaning of rule 246 of the Supreme Court Civil Rules 2006 (SA) (the Former Rules)[2] and that rule required there to be a confirmation hearing to determine whether the injunction should continue on an interlocutory basis until trial. It follows that the onus lies on Grant to demonstrate that the injunction should be continued until trial. This should only occur on condition that Grant pay $15,000 per month from June 2020 onwards.
[2] Rule 111.1 of the Uniform Civil Rules 2020 (SA) addresses interim and interlocutory injunctions in slightly different terms.
Grant contends that the hearing was not made “without notice” within the meaning of the rule because notice was given by email on 29 August 2018. In any event what commenced as an interim injunction on 31 August 2018 has become an interlocutory injunction and the onus lies on Jack to demonstrate that it should be discharged. Jack has failed to discharge that onus.
Rule 246 of the Former Rules relevantly provided:
246—Court's power to grant injunction
(1)     The Court may, on application by a party, grant an injunction before, at or after the hearing and determination of proceedings in the Court.
(2)     In a case of urgency, an application may be made without notice to other parties     but the Court may, if it thinks fit, require the applicant to give notice of the       application to other parties.
(3)     If an injunction is granted on an application made without notice to other parties—
(a)     the Court must fix a time for a hearing (a confirmation hearing)   either at the time of making the injunction or on the later application                    of a party affected by the injunction; and
(b)     if the Court decides at a confirmation hearing not to confirm the   injunction—it then lapses.
There is a legal issue as to the meaning of the term “without notice” in subrule 246(3); a legal issue as to the period of notice required for this purpose; and a factual issue as to whether the interlocutory application was served on Doyle Kingston & Swift on 29 August 2018. I address the factual issue first.
Ms Hoskins in her affidavit sworn on 21 May 2020 said that she had been informed by Mr Craney and verily believed amongst other things that:
·on 30 August 2018 at 4.32 pm both affidavits of Mr Hill were served on Doyle Kingston and Swift but not the interlocutory application;
·“the affidavit” had the hearing date 31^st August 2018 at 10.00 am written on the front and Mr Craney was thereby aware of the hearing on the following day but had not received the interlocutory application.
Jack acknowledges that his solicitors Doyle Kingston & Swift had been served with both of Mr Hill’s affidavits, knew that Grant had filed an interlocutory application seeking orders; and knew that the application was listed for hearing on 31 August 2018 at 10.00 am. The remaining factual issue is whether the interlocutory application was served by email on 29 August 2018 at 12.10 pm.
Grant tendered an email showing the sender as Mr Hill; the addressee as the email address of Doyle Kingston & Swift ([email protected]); and the date and time of sending as 29 August 2018 12.10 pm. The body of the email was as follows:
Attached is a letter and related enclosures for the urgent attention of Mr Craney.
Please note that the matter is listed for hearing this Friday at 10 AM.
The email identified its attachments as follows:
Letter to Doyle Kingston & Swift 29 August 2018.pdf
Interlocutory Application filed 29 August 2018.pdf
Affidavit Sebastian Clarke Hill Sworn 28 August 2018.pdf
Grant tendered the letter dated 29 August 2018 which stated that it enclosed by way of service an interlocutory application and supporting affidavit of the writer and noted that the matter was listed for hearing in the Supreme Court of South Australia on Friday, 31 August 2018 at 10 am.
The email is prima facie evidence that the interlocutory application was served on Doyle Kingston & Swift on 29 August 2018 at 12.10 pm.
Ms Hoskins’ affidavit states that she was informed by Mr Craney that both of Mr Hill’s affidavits were served at the same time on 30 August 2018 at 4.32 pm. I note that Mr Craney was apparently absent from Broken Hill at least between 29 and 31 August 2018 and probably for a longer time both before and after that period as he travelled to Vietnam. It follows that he could not have had personal knowledge of what was served on Doyle Kingston & Swift over that period. However, Ms Hoskins’ affidavit does not disclose Mr Craney’s source of knowledge. At best, Ms Hoskins’ affidavit comprises double hearsay.
Grant tendered the email sent by Mr Hill to Doyle Kingston & Swift on 30 August 2018 at 4.32 pm. That email identifies its attachments as being a letter dated 30 August 2018 and an affidavit of Mr Hill sworn on 30 August 2018. It is clear from the email that Mr Hill’s first affidavit sworn on 28 August 2018 was not sent with that email. It follows that the hearsay statement by Ms Hoskins that both affidavits were served at the same time by that email is incorrect. It follows that Mr Hill’s first affidavit must have been served at some earlier time. This can only have been with the email sent on 29 August 2018 at 12.10 pm. I am affirmatively satisfied that the email from Mr Hill to Doyle Kingston & Swift was sent by Mr Hill and received by Doyle Kingston & Swift on 29 August 2018 at 12.10 pm.
In Mr Craney’s absence, Ms Hall and Ms Stacey at Doyle Kingston & Swift were looking after the matter. No evidence was adduced by Jack from Ms Hall or Ms Stacey as to what emails and attachments were received by the firm, or came to their attention, between 28 and 30 August 2018. Nor did Jack tender any of the emails or letters that were received by Doyle Kingston & Swift over that period.
I accept that Mr Craney did not see the interlocutory application before it was heard on 31 August 2018 but this does not entail that it was not served or that it did not come to the attention of personnel within his firm.
On the evidence, I find affirmatively that the interlocutory application was served on Doyle Kingston & Swift on 29 August 2018 at 12.10 pm.
Jack contends that, under rule 131(2) of the Former Rules, at least two clear business days’ notice was required to be given of the time appointed for hearing an interlocutory application; this required service of the application by 28 August 2018; and therefore service on 29 August at 12.10 pm does not comprise notice for the purpose of rule 246.
If notice is in fact given of an application for an injunction but it is less than the prescribed two clear business days, it does not thereby necessarily become an application without notice. In any event, rule 131(4) provided that the Court may dispense with the requirements of rule 131 if urgency required or for any other appropriate reason. Given the imminent removal of the caveat in the absence of an order by the Court, this was a clear case of urgency. In addition, Jack did not adduce any evidence that notice given on 29 August at 12.10 pm was insufficient for him to arrange to be represented at the hearing.
Jack contends that, on the proper construction of subrule 246(3), an application is made “without notice to [the] other part[y]” even if it has been served on the other party before the hearing if that party does not attend at the hearing. I reject that contention. First, the ordinary English meaning of the words “without notice to other parties” are that the other parties have not had notice of the application in advance of the hearing and have had no opportunity to appear. Secondly, subrule 246(3) must be construed in context. That context includes subrule 246(2), which provides that, in a case of urgency, an application may be made “without notice to other parties”. This refers to other parties not being given notice of the hearing; it does not refer to the hearing proceeding when other parties have been given notice but have not attended.
It follows that rule 246(3) requiring a confirmation hearing was not enlivened.
I observe that, even if (contrary to my finding above) the interlocutory application itself had not been served on 29 August 2018 at 12.10 pm, it is likely that nevertheless the application for the injunctions was made with notice. First, Doyle Kingston & Swift knew from the endorsement on Mr Hill’s affidavit that an interlocutory application by Grant was listed for hearing on 31 August 2018 at 10.00 am. Secondly, Doyle Kingston & Swift knew that the 21 day period for removal of the caveat was due to expire, on their own assertion, on 31 August 2018 and they must therefore have known that the interlocutory application encompassed an application to extend the operation of the caveat and/or for an injunction to restrain dealings with the property. Thirdly, given the threats by Doyle Kingston & Swift to evict Grant from the property on 14 and 27 August 2018, they must have known that it was likely that the interlocutory application encompassed an application for an injunction to restrain eviction. Fourthly, Grant’s affidavit exhibited to Mr Hill’s second affidavit, which they had received, stated that Grant sought orders restraining Jack selling the property or otherwise taking any steps stated in the interlocutory application. Fifthly, Mr Hill’s first affidavit referred to and exhibited the correspondence in relation to the caveat, application for preparation of lapsing notice and threat to evict Grant from the property and referred (without stating them) to the orders sought by Grant in the interlocutory application. In the circumstances, even if they did not have the interlocutory application itself, I am satisfied that Doyle Kingston & Swift knew the nature of the orders sought in it and knew that it was listed for hearing on 31 August 2018 at 10.00 am. I observe that no explanation is advanced by Jack why no one appeared on his behalf at the hearing on 31 August. However, in light of my finding above, it is not strictly necessary to decide this question.
Does the onus generally lie on Grant to justify an interlocutory injunction?
Jack contends in the alternative that, leaving aside rule 246, the onus remains on Grant to justify an interlocutory injunction because the Master only decided on 31 August 2018 to grant an interim injunction and the Court has never decided that an interlocutory injunction should be granted on the merits.
It is clear that the Master on 31 August 2018 granted an injunction on an interim basis. The Master’s orders make this explicit.
When an injunction is sought to preserve the status quo, it is common for a court to grant an interim injunction to preserve the status quo in the short term until the parties can be heard on the question whether an interlocutory injunction should be granted until trial. One situation in which this occurs is when the application for an injunction is made in the first instance without notice to the respondent, either because there is insufficient time to give notice or because the applicant fears that notice will result in the respondent taking precipitous action. This situation was addressed explicitly by subrules 246(2) and (3) of the Former Rules. Another situation in which this occurs is when the application is made with notice to the respondent but one or both parties need time to adduce evidence, or otherwise prepare, for a hearing whether an interlocutory injunction should be granted and the court grants an interim injunction until that time.
If Jack had opposed the grant of an interlocutory injunction at the adjourned hearing on 7 September 2018 (in other words, opposed the continuation of the injunction granted on 31 August), the onus would clearly have lain on Grant to justify an interlocutory injunction.[3]
[3] Zafiropoulos v The Registrar-General (1980) 24 SASR 133 at 135-136 per King CJ, Mitchell and Wells JJ; Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 at 731 per McLelland J.
However, Jack did not oppose the grant of an interlocutory injunction or the continuation of the injunction granted on 31 August 2018. That injunction continued unabated for 20 months until May 2020 when Jack advanced the contention that it was required to be confirmed. At that point, the action had been listed for trial in September 2020. What began life on 31 August 2018 as an interim injunction had clearly evolved by May 2020 into an interlocutory injunction. It is now too late for Jack to attempt to turn back time and argue that Grant needs to justify an interlocutory injunction ab initio.
Between 7 September and 30 October 2018, Jack was pursuing an application to cross-vest the action to the Supreme Court of New South Wales. This was not a reason for Jack not to agitate the continuation of the original injunction. The issue of the continuance of the injunction was independent of the question as to the appropriate forum for the ultimate hearing and determination of the action.
Between 28 November 2018 and 21 February 2020, the parties were proceeding on the basis that the subject matter of the action had been conditionally resolved by the Heads of Agreement. This did not prevent Jack from agitating the continuation of the injunction because that resolution was not unconditional and there remained the possibility that the action would proceed. It is, however, understandable why Jack did not agitate the continuation of the injunction over this period.
Between 21 February and 7 May 2020, Jack and Nola were proceeding on the basis that the action would not be resolved by the Heads of Agreement. There was no reason why Jack could not have agitated the continuation of the injunction during this period, although this was now 18 months after the grant of the injunction.
It is neither possible nor necessary to identify a precise point at which the interim injunction evolved into an interlocutory injunction. It is sufficient to conclude that it had unequivocally done so by May 2020.
On general principles, the onus does not lie on Grant at this point to justify an interlocutory injunction.
Did Grant breach the duty of candour?
Jack contends in the alternative that Grant owed a duty to the Court to make full disclosure of facts material to the grant of an injunction on 31 August 2018; Grant did not then have the means to pay damages that might be awarded pursuant to his undertaking as to damages if he failed in the action; Grant failed to disclose this; and the injunction should be discharged on this ground. Jack accepts that this would not prevent Grant seeking a fresh injunction but the onus would lie on him to justify it and it should be subject to a condition that he pay an occupation fee from this point.
A party who seeks an injunction without notice owes a duty of candour to the Court to make full disclosure of facts material to the grant of the injunction and in particular facts that could lead to its refusal. In Thomas A Edison Ltd v Bullock[4] Isaacs J said:
There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence. But instances occur where justice could not be done unless the subject matter of the suit were preserved, and, if that is in danger of destruction by one party, or if irremediable or serious damage be imminent, the other may come to the Court, and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action. But, when he does so, and the Court is asked to disregard the usual requirement of hearing the other side, the party moving incurs a most serious responsibility.
.. it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say that he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall.”[5]
[4] (1912) 15 CLR 679.
[5] At 681–682.
The duty is to disclose “all facts which reasonably could or would be taken into account by the Judge in deciding whether to grant the application”.[6] This encompasses a likelihood that the applicant will not be able to meet an undertaking as to damages when that is a fact which reasonably could be taken into account in deciding whether to grant the injunction.[7]
[6] Siporex Trade SA v Comdel Commodities Ltd [1862] 2 Lloyd’s Rep 428 at 437 per Bingham J.
[7] Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 553 per Powell JA; French v Chapple [2000] NSWSC 1240 at [4] per Hodgson CJ in Eq.
If an applicant obtains an injunction without notice and breaches the duty of candour, the respondent is ordinarily entitled to an order discharging the injunction.[8] This does not prevent the applicant making a fresh application for an injunction on the merits.[9]
[8] Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 678 per Mahoney AP.
[9] Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Limited (1988) 20 FCR 540 at 543 per Davies, Gummow and Lee JJ.

There is a question whether the duty of candour applies only when an application is made without notice to the opponent or whether it applies also when notice has been given but the opponent does not appear at the hearing. The formulation of the rationale for the duty of candour by Isaacs J in Thomas A Edison Ltd v Bullock[10] might suggest the former. The rule is often expressed in terms of applying to ex parte applications, which begs the question whether it applies to applications on notice when the opponent does not appear. It is unnecessary to resolve this question. I assume, in favour of Jack, that the rule applied to the application heard on 31 August 2018.
[10] (1912) 15 CLR 679.
Jack only advanced this contention on the morning of the hearing. Although he adduced evidence of Grant’s financial position in June 2020, he did not adduce evidence of Grant’s financial position in August 2018. In the circumstances, Jack has failed to discharge the onus of proof that, as at August 2018, Grant lacked the ability to meet an undertaking as to damages.
In any event, when the interim injunction was ordered on 31 August 2018, it was only intended to apply on an interim basis until the parties could be heard whether an interlocutory injunction should be granted and it was anticipated that this would occur within seven days on 7 September 2018. Jack did not intend to sell or otherwise deal with his interest in the property at that point (nor at any subsequent point). Grant had given notice to Jack of the hearing on 31 August at 10 am and that he was seeking the injunctions that were granted on that occasion and it is clear from his conduct on that date that he intended to give notice of the interim injunction on the same date if Jack did not appear at the hearing. In the circumstances, it was inconceivable that Jack would suffer damage as a result of the grant of an interim injunction in the very short term. In addition, in the absence of Jack formulating the loss he would suffer as a result of the injunction, it would have been difficult for Grant to have done so.
Moreover, if Jack considered that Grant had breached a duty of candour, it was incumbent on him to apply expeditiously for the discharge of the injunction. He was not entitled to wait 20 months and seek the discharge of the injunction on the ground of breach of a duty of candour in June 2020.
Conclusion on onus
The onus lies on Jack to justify an order discharging the existing injunction and only granting a new injunction on terms that Grant pays $15,000 per month.
Application to discharge the injunction
In the alternative to the above contentions, Jack made an oral application to discharge the injunction and indicated that he would not oppose the grant of a new injunction on terms that Grant pays $15,000 per month commencing in June 2020.
It is common ground that the Court lacks power to impose retrospectively conditions on the grant of the existing injunction.[11] However, it is also common ground that the Court has power to discharge the existing injunction and grant a new injunction only on terms.[12]
[11] Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd (1991) 56 SASR 515 at 520-521 per Mullighan J; First Netcom Pty Ltd v Telstra Corporation Ltd [2000] FCA 1269 at [26]-[27] per Beaumont, Burchett and Emmett JJ.
[12] Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd (1991) 56 SASR 515 at 521 per Mullighan J.
Jack contends that, but for the injunction, he could make the property available to a third party for the agistment of stock. Ms Hoskins in her affidavit sworn on 21 May 2020 said that she was informed by Jack that in May 2020 he was informed by Elders and Landmark stock agents in Broken Hill that a fair market price for agistment is $7.50 per head per week for cattle and $1 per head per week for sheep. There are about 400 cattle and 300 sheep currently on the property. On the assumption that Jack could obtain agistment of 400 cattle and 300 sheep at these rates, the agistment income would be $14,300 per month.
Ms Hoskins in that affidavit exhibited title searches in South Australia and New South Wales that disclosed that Grant does not own any real estate in those two States. She also produced copies of Grant’s tax returns for the years ended 2016, 2017 and 2018 showing relatively low taxable income.
Mr Hill in his affidavit sworn on 4 June 2020 said that he was instructed by Grant that a rental of $15,000 per month is unachievable in the marketplace; the property has been the subject of a severe drought since 2017 that is only now breaking and a standard agistment agreement still cannot be achieved at the property because there is simply not enough feed upon it. Grant has approximately 180 cattle and 1,000 sheep on the property. In addition, there are 450 head of cattle belonging to Grant’s cousin which Grant is only permitting because the cattle would otherwise die. Grant does not receive any agistment fee but is to receive the calves produced by the cattle.
Mr Hill said that he was instructed by Grant that, in order to be cost-effective, agistment needs to be located close to the sale market and the property is far removed from a sale market. A normal agistment fee for cattle on the property would be $6 per head and for sheep would be $0.80 per head.
Mr Hill said that he was instructed by Grant that his financial position has declined markedly since August 2018 as a result of the drought. He set out details of assets and liabilities of Grant and of assets described as being owned by Grant and Tatiana under the business name VM Nominees. The latter assets included the properties at Ascot Park and Broken Hill referred to above with a value totalling $830,000 and mortgages totalling $515,000. These properties are held in the name of Viemar Nominees Pty Ltd of which Grant and Tatiana are directors and shareholders and which is the trustee of the K & R Family Trust. Mr Hill misapprehended that Viemar Nominees is a business name when in fact it is a company. Including all of the assets listed by Mr Hill, the net value of the assets is $150,000. This does not take into account unbilled solicitors’ fees in relation to this litigation, which exceed $100,000.
Mr Hill said that he is instructed that Grant cannot pay rent. If he were required to remove his stock from the property, it would take about six weeks to muster his sheep, one month to muster 80 of his cattle and four months to muster the remaining 100 cattle. The total loss of stock would cause Grant to be in a rebuilding phase (already necessitated to some degree by existing circumstances) for an additional five years.
Mr Hill said that he is instructed by Grant that, if he were required to remove his plant and equipment in addition to his stock, it would take approximately two and a half months and, if he were required to vacate the property entirely, it would take at least four months. If Grant sold his plant and equipment for their estimated value of $180,000 and he were successful in the action, it would cost him about $540,000 to replace it.
Serious question to be tried
Jack acknowledges that there is a serious question to be tried in this action at least on the promissory estoppel/constructive trust/equitable lien causes of action.
In some cases, the Court is able to make a preliminary assessment that the applicant’s case is particularly strong or particularly weak and this will be relevant to the assessment of the balance of convenience. However, in many cases it is not possible to do so.
In Adnyamathanha Traditional Lands Association v Minister for Energy & Mining (SA)[13] Doyle J said:
It remains true that the Court will not conduct a preliminary trial in assessing whether there should be a grant of interlocutory relief. However, in some cases it will be possible and appropriate for the Court to undertake some evaluation of the strength of the plaintiff’s case for final relief in order to assist in determining where the balance of convenience lies. That is more likely to be appropriate in cases where the decision to grant or refuse an interlocutory injunction will in a practical sense determine the substance of the matter in issue. It is also more likely to be appropriate in cases where the merits will turn upon matters not requiring the resolution of significant factual disputes.[14]
[13] [2018] SASC 142.
[14] At [27]. (Footnotes omitted).
Jack contends that there is no serious question to be tried on the part performance element of Grant’s contract cause of action. However, he does not identify why he contends that this is so or make any submissions beyond making that bare contention. On an inter partes injunction hearing, it is not the role of the Court to attempt to formulate submissions on behalf of a party and then assess them. In the absence of substantive submissions by Jack, there is no reason to find that there is no serious question to be tried on Grant’s contract cause of action.
Jack contends that Grant’s alternative promissory estoppel/constructive trust/equitable lien claim is not strong and there is a real prospect that, if he succeeds on liability, monetary compensation rather than a proprietary remedy will be considered appropriate.
Jack does not elaborate why he contends that Grant’s alternative claim is not strong. Effectively I only have the pleadings in relation to the claim and I am not able to undertake a meaningful preliminary assessment of the merits of that claim that would impact on the assessment of the balance of convenience.
Likewise, I am not in a position to undertake a meaningful preliminary assessment of the likely relief if Grant is successful on that claim. However, even if the appropriate relief were compensation, there is no basis to find that the compensation would be less than the occupation fees that Jack is seeking as a condition of a future injunction.
Balance of convenience
Restraint of sale or dealing
The first injunction restrains Jack from selling or otherwise dealing with the property without Grant’s consent or an order of the Court.
Jack does not assert that he wishes to sell or otherwise deal with the property. There is no suggestion that he intends to do so before the hearing and determination of this action. There is no suggestion that the first injunction or the existence of the caveat over the property is preventing him from taking any action that he would otherwise take.
In this circumstance, there is no reason to discharge the first injunction or the order extending the operation of the caveat. Indeed, Jack’s submissions are addressed principally to the second injunction rather that the first.
Restraint of eviction
The second injunction restrains Jack from evicting Grant from the property.
There is no evidence or suggestion that, if this injunction were discharged, Jack would resume his own grazing business on the property or rent the property to a third party to conduct their grazing business on the property. The only evidence is that, in this event, Jack would arrange for a third party to agist their stock on the property in return for an adjustment fee.
Assessing the balance of convenience involves making findings about the likely prejudice that would be suffered by Jack if the injunction were to continue; making findings about the likely prejudice that would be suffered by Grant if the injunction were not to continue; and weighing the respective prejudices in all of the relevant circumstances of the case.
Starting with the prejudice to Jack if the injunction were to continue, there is a conflict on the evidence about the rate of agistment fees obtainable on the property in normal circumstances. I cannot resolve that conflict because Ms Hoskins and Mr Hill were not cross-examined on their affidavits in which they identified agistment rates based on information from their respective clients. If they had been cross-examined, it is not clear what the result would have been given that the evidence was hearsay. In this respect, I note that, while hearsay evidence is not necessarily inadmissible for the purpose of an interlocutory hearing, nevertheless, if objection is taken to it, the Court has a discretion to decline to receive it or to give it no weight or no significant weight if first-hand evidence should instead be adduced. In many cases, it will be more efficient to adduce first-hand evidence in the first place when the parties know that an interlocutory application is to be contested.
Nevertheless, even using Grant’s lower agistment rates coupled with Jack’s stock numbers, agistment fees in normal circumstances would be approximately $11,440 per month. However, there is also a conflict on the evidence whether agistment could be obtained from third parties given the present circumstances that the property has been the subject of a prolonged drought which is only now breaking. On the one hand, I have the hearsay evidence from Grant that a standard agistment agreement cannot be achieved at the property because there is simply not enough feed on it. On the other hand, I have the hearsay evidence from Jack that might imply that Jack believes that stock could be agisted on the property for substantial agistment fees. However, Jack does not assert (via hearsay or otherwise) that agistment fees could in fact be obtained from third parties for agistment on the property or any basis for such an assertion. I cannot resolve that conflict. The onus lies on Jack to persuade me of the prejudice that he will suffer if the injunction continues and he has failed to discharge that onus in the circumstances.
In addition, I have the uncontested hearsay evidence from Grant that it would take up to four months for him to remove all of his stock from the property. I also have the uncontested hearsay evidence from Grant that normally third party agisted stock must be kept separate from stock belonging to the owner of the property. Accordingly, if the second injunction were discharged, on the evidence adduced before me, it is unlikely that Jack could agist third party stock before the trial in September 2020.
There is no evidence or suggestion by Jack that a failure to receive either an occupation fee from Grant or agistment fee from a third party would cause him any particular financial hardship. This is a factor relevant to the overall discretion but I accept Jack’s submission that it is not a reason to discount the prejudice that he is likely to suffer as a result of continuation of the second injunction.
Turning to the prejudice likely to be suffered by Grant if the second injunction is discharged, the uncontested and unchallenged hearsay evidence from Grant is that he is simply not in a financial position to pay an occupation fee. Accordingly, if the injunction were discharged and a new injunction were granted subject to a condition that Grant pays an occupation fee, Grant would fail to comply with the condition and at least his stock would be evicted by Jack. I accept that Grant would suffer substantial financial prejudice in that event because he would be required to sell his stock and cease his grazing business. In addition, he would suffer substantial non-financial prejudice due to the distraction from preparation of his case for trial in September 2020.
The likely prejudice to Grant if the injunction is discharged clearly exceeds the likely prejudice to Jack if it is not. In addition, it is relevant to take into account the circumstance that Jack permitted Grant to remain in possession of the property rent-free from 2012 onwards and the pleading in paragraph 56 of his defence that, if Grant cannot pay a market value for the property, he can continue to use it for his livestock rent-free. The loss by Jack of an occupation fee for a few months from June 2020 onwards is a relatively small amount compared to the value of the free rental of the property since 2012. Finally, it is relevant to take into account that the relationship between the parties is primarily a familial one rather than a commercial one.
In all the circumstances, is not appropriate to discharge the injunction and grant a fresh injunction conditional upon Grant making monthly payments of $15,000 commencing in June 2020 by way of an occupation fee.
Finally, during argument on the application, Jack raised the possibility of the injunction being discharged and a fresh injunction being granted subject to a condition that Grant provide security for the undertaking as to damages by way of a charge over the Ascot Park and/or Broken Hill properties. This possibility was raised for the first time only after Grant had completed his primary submissions on the argument.
The possibility of Grant providing a charge was not explored in the evidence because it was not raised by Jack. In order to decide whether a fresh injunction should be granted subject to such a condition, it would be necessary to consider matters such as the costs that would be incurred in procuring such a charge; whether the consent of the mortgagees (or other potential security holders) would be required and, if so, whether it would be forthcoming; the time it would take to procure such a charge; and what effect if any this would have on Grant’s ability to obtain ongoing legal representation in this action. None of these matters were explored in the evidence and I am in no position to make any assessment in relation to them.
Jack contends that it is not a matter for him to identify security that might be provided by Grant; rather it is a matter for Grant to volunteer security. Assuming that this would have been a valid contention on the hearing of an application for an interlocutory injunction in September 2018, it is not a valid contention given the stage the action has now reached. In any event, Jack failed to give any notice to Grant in this respect and I am in no position to make the necessary findings in relation to it.
Weighing the balance of convenience in all circumstances on the basis of the evidence adduced, the injunctions ought not to be discharged.
Conclusion
I dismiss Jack’s oral application to discharge the injunction and substitute a new injunction conditional on Grant paying $15,000 per month to Jack. I will hear the parties on costs in due course.