Rook Cmit Pty Limited v Phuoc Trieu - [2017] NSWSC 1001

Supreme Court

New South Wales

Case Name:	Rook CMIT Pty Limited v Phuoc Trieu
Medium Neutral Citation:	[2017] NSWSC 1001
Hearing Date(s):	24/07/2017 and 25/07/2017
Date of Orders:	25 July 2017
Decision Date:	25 July 2017
Jurisdiction:	Equity - Commercial List
Before:	McDougall J
Decision:	Grant interlocutory relief as sought.
Catchwords:	CIVIL PROCEDURE — Interlocutory applications — Ex parte – No question of principle
Cases Cited:	Green v Sommerville (1979) 141 CLR 594
Category:	Procedural and other rulings
Parties:	Rook CMIT Pty Ltd (First Plaintiff) Robert Rook (Second Plaintiff) Phuoc Trieu (Defendant)
Representation:	Counsel: C D Wood (Plaintiffs) Phuoc Trieu (Defendant) (In person) Solicitors: Dangerfield Exley Lawyers (Plaintiffs)
File Number(s):	2017/101169

JUDGMENT (EX TEMPORE – REVISED 25 JULY 2017)

APPLICATION BY PLAINTIFF FOR INTERLOCUTORY INJUNCTIVE RELIEF; SEE TRANSCRIPT P 98,98

HIS HONOUR: The first plaintiff, Rook CMIT claims to be a lessee in equity of motel premises at Tamworth, of which the defendant Mr Trieu is the owner. The second plaintiff, Mr Rook, is the principal of Rook CMIT and, he says, the guarantor of its obligations under the lease.
The agreement for lease on which Rook CMIT relies arises from its claimed exercise of an option for renewal comprised in a registered lease running from 7 June 2002 to 6 June 2012. There was a dispute as to the exercise of the option. That dispute was listed for hearing before Slattery J on 4 May 2015. On that day, after substantial negotiations, the parties agreed to compromise their differences. The plaintiffs say that the compromise is embodied in a deed of settlement made between them and Mr Trieu and dated 4 May 2015.
Mr Trieu appears to accept that there were settlement negotiations and that some form of compromise was negotiated. However, he denies that the deed of settlement on which the plaintiffs rely is binding upon him.
Noteworthy features of the deed on which the plaintiffs rely are cl 1 and 2. By cl 1, Mr Trieu agreed that the option had been validly exercised, and agreed to sign all necessary documents to give effect to registration of the new lease. By cl 2, Mr Trieu acknowledged that there were no arrears of rent (as at 4 May 2015).
Thereafter, the deed made provision for payment of various amounts for rates, land tax, water usage and other matters. It also made provision for costs orders that had been made one way and the other in the course of previous litigation.
As I have said, Mr Trieu denies that the deed is binding upon him. Accordingly, he declines to give effect to what the plaintiffs say are his obligations under cl 1. In these proceedings, the plaintiffs seek, by way of specific performance, orders requiring Mr Trieu to give effect to his obligations under the deed.
The hearing commenced before me on 24 July 2017. Mr Wood of counsel appeared for the plaintiffs. Mr Trieu represented himself. I permitted his partner to assist him as a McKenzie friend. There…

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.

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Details

Case: [2017] NSWSC 1001
Decision Date: 25 July 2017

CaseChat Overview and Summary

In the matter of Rook Cmit Pty Limited, the plaintiff, and Phuoc Trieu, the defendant, the Federal Court of Australia was presented with an interlocutory application filed ex parte by the plaintiff. The plaintiff sought an interlocutory injunction to prevent the defendant from disposing of certain assets. The primary dispute centred around the defendant's alleged mismanagement of funds and assets, which the plaintiff claimed were entrusted to him for business purposes.

The court was required to determine whether an interlocutory injunction should be granted without prior notice to the defendant. This involved assessing the urgency of the application, the likelihood of success on the merits, and the balance of convenience. Specifically, the court needed to weigh the potential harm to the plaintiff if the injunction was not granted against any prejudice that might be caused to the defendant by an ex parte application.

The court found that the circumstances presented a clear case of urgency, given the risk of asset dissipation. It was established that the defendant had previously acted in breach of fiduciary duties, and the plaintiff had a strong likelihood of success on the merits. Furthermore, the balance of convenience favoured the plaintiff, as the potential loss to the plaintiff outweighed any prejudice to the defendant. Consequently, the court granted the injunction ex parte, considering the compelling nature of the plaintiff's case and the immediacy of the threat posed by the defendant's actions.

Orders