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…

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.

Continue reading Roberts v Roberts

Details

AGLC: Roberts v Roberts [2020] SASC 110
Case: [2020] SASC 110
Decision Date: 19 June 2020

CaseChat Overview and Summary

In the case of Roberts v Roberts, the primary issue before the court was whether the existing interim injunction should be confirmed, discharged, or modified to require a monthly payment from Grant to Jack. The dispute originated from a claim by Grant, one of Jack’s sons, that he had an enforceable interest in the Pulgamurtie property, which Jack had purchased from his mother in 1961. Grant alleged that he had an oral agreement with Jack to purchase the property in 2012 for $2.6 million and that he had relied on this agreement to his detriment. Jack denied the existence of any such agreement and sought to discharge the injunction on the basis that Grant had breached a duty of candour.

The court was required to determine the appropriate course of action regarding the interim injunction, particularly in light of Jack’s contention that Grant had breached a duty of candour. The central legal issues included whether the existing injunction should be confirmed, discharged, or replaced with one that required Grant to make a monthly payment of $15,000 to Jack. The court also needed to consider whether Jack’s delay in seeking the discharge of the injunction on the grounds of a breach of duty of candour affected his entitlement to such relief. Additionally, the court had to assess the impact of the injunction on Jack’s ability to generate income from the property by agistment, and whether this justified the discharge of the existing injunction in favour of a new one with specific financial conditions.

The court concluded that the onus lay on Jack to justify discharging the existing injunction and imposing new conditions. The court found that Jack’s delay in seeking the discharge of the injunction on the grounds of a breach of duty of candour undermined his entitlement to such relief. Furthermore, the court determined that the impact of the injunction on Jack’s ability to generate income from the property by agistment did not justify the discharge of the existing injunction. Consequently, the court upheld the existing injunction without modifications. The court also noted that it had no power to impose retrospective conditions on the existing injunction, but it did have the authority to discharge the existing injunction and issue a new one with specific financial conditions. However, given the circumstances, the court decided against modifying the injunction in this manner.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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