Rook Cmit Pty Limited v Phuoc Trieu
[2017] NSWSC 1001
•25 July 2017
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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) |
Representation: | Counsel: |
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 was also present a Vietnamese interpreter (in fact two, because each party had arranged for one). It was clear that an interpreter was necessary, because Mr Trieu's command of English is less than perfect. I stress that this is no criticism. The problem that arose was that, for reasons that were never satisfactorily explained, Mr Trieu for the most part declined to use the services of an interpreter, even the one that he himself had booked.
The hearing was to continue this morning. However, Mr Trieu was taken to the emergency department of Sydney Hospital, complaining of chest pains. A medical certificate that has been provided appears to clear him of any serious heart complaint, but says that he is suffering from an upper respiratory tract infection and will not be able to attend work for some little time.
In the circumstances, the hearing could not proceed. It will be necessary for the parties to obtain a further date for hearing so that the hearing can be completed.
On behalf of the plaintiffs, Mr Wood made an application for interlocutory injunctive relief. The substance of the relief sought is, firstly, to restrain Mr Trieu from interfering with Rook CMIT's claimed right of quiet enjoyment and, secondly, to restrain him from retaking possession by reason of any default notice or notice of termination given prior to 25 July 2017.
There is every reason to think that some sort of order, holding the status quo, is necessary. That is because the substantial volume of documents that have been tendered on the interlocutory hearing (being the evidence on which each party proposed to rely on the final hearing) reveals that Mr Trieu has been astute to take advantage of every real or perceived breach, no matter how slight, to attempt to evict Rook CMIT and to regain possession of the premises.
This being an interlocutory application, and in substance ex parte (although I should record that Mr Trieu's son, Mr Khanh Trieu, has been present for part of the interlocutory hearing, and is present during delivery of these reasons), it is necessary for the plaintiffs to show that they have a prima facie case. I am satisfied that if the deed of settlement that has been tendered is proved to have been made on 4 May 2015 then, barring some vitiating factor, it would make good Rook CMIT's claim to an equitable lease for the balance of the term of the option.
The matters on which Mr Trieu relies by way of defence are numerous. To some extent, they are summarised in para 72 of his affidavit sworn on 10 July 2017. That paragraph asserts that these proceedings are an abuse of the process of the Court, and are frivolous and vexatious, based on forgery, lacking in any reasonable cause of action, have a tendency to cause prejudice, embarrassment and delay, and do not reveal any defence to Mr Trieu's cross summons, by which he claims possession of the leased premises.
To the extent that one can break those allegations down, they appear to comprise a number of elements. First, Mr Trieu says that there were numerous breaches of the lease prior to 4 May 2015. That may or may not be so. However, if the deed is binding, it cannot be relevant. As to rental, cl 2 acknowledged that there were no arrears. As to other breaches, cl 1 acknowledged the valid exercise of the option. The option clause in the original lease, cl 20, provided that the option was only available if both at the date of notice of exercise and on the last day of the term "there is no unwaived or unremedied breach of any of the Lessee's obligations under this Lease". Acknowledgement that the option has been validly exercised necessarily indicates that there were no unremedied or unwaived breaches.
As to fraud, it is Mr Trieu's case that the document on which the plaintiffs rely has a different first page (which is the page containing the relevant substantive terms) to the document he signed. He does not identify what were the terms of the document that, undoubtedly, he did sign. Nor does he identify the ways in which (if at all) that which he says he signed differed from that which the plaintiffs tender.
In any event, there is a substantial body of evidence which, if accepted, would cast doubt on this aspect of Mr Trieu's case. The plaintiffs rely on the evidence not just of Mr Rook but also on the evidence of the lawyers who were present, the plaintiffs' solicitor and barrister, and Mr Trieu's barrister (who appeared on a direct access basis). The evidence of those people, including the extent to which it was tested in cross examination yesterday, if accepted would suggest very strongly that there was no fraud of the kind alleged by Mr Trieu.
It may be that Mr Trieu is attempting to make out some sort of non est factum case. However, his own evidence shows that he was keenly aware of the nature of the document that he signed. Further, the evidence of his barrister, if accepted, would pose a very substantial obstacle to the success of any non est factum defence.
Next, it may be, Mr Trieu appears to rely on some form of duress. It is not at all clear what this duress was, let alone that whatever is relied upon was so powerful as to overbear his consent. In any event, the evidence given by the lawyers, including as I have said Mr Trieu's own barrister, if accepted would pose a very substantial obstacle to the success of any argument of duress.
Next, Mr Trieu appears to rely on the doctrine of unclean hands. It is enough to say that on such evidence as has been put before the Court on the interlocutory application (which as I understand it is all the evidence that would be put before the Court on the final hearing), there is no reason to think that any impropriety (if there is any, and I stress that I do not find there is) on the part of the plaintiffs is sufficiently connected with the equity that they seek to enforce as to impeach their right to do so.
Next, Mr Trieu appears to rely upon breaches of the deed itself. I am not entirely sure how he can say, consistently, that the deed on which the plaintiffs rely is not the deed he signed and, at the same time, that they have breached it. Regardless, the evidence that the plaintiffs have adduced on the hearing, if accepted, would show that the breaches (which relate to payment obligations) have not occurred.
Further, as Mr Wood submitted, the doctrine enunciated by Mason J in Green v Sommerville (1979) 141 CLR 594 at 610, would stand in the way of such an argument. His Honour (with whom Murphy and Aickin JJ agreed) said that a failure to pay an amount, that was not a breach of an essential term, would not disentitle a plaintiff to a decree of specific performance. His Honour said, "[i]t is well settled that a plaintiff, in a suit for specific performance, is not required to show that he has strictly complied with all his obligations under the contract. It is enough that he has performed and is ready and willing to perform the substance of his contract".
To the extent that Mr Trieu relies on his s 129 notices and notice of termination given after 4 May 2015, the point to make is that the former appear to rely on breaches prior to 4 May 2015 and thus suffer from the problems to which I have referred already. The latter can rise no higher than the notices under s 129.
In all the circumstances, I am satisfied that the plaintiffs have made out a good arguable case, or prima facie case, of entitlement to the final relief that they claim. I am also satisfied, from Mr Trieu's behaviour since 4 May 2015, that unless some sort of injunctive relief is granted to maintain the status quo pending a final resolution, it is likely that there will be further attempts to interfere with Rook CMIT's exercise of its claimed rights as lessee. Clearly, for a motel business, that is a most unsatisfactory and undesirable state of affairs.
For those reasons, I make the following orders:
(1)Note that the plaintiffs by counsel give to the Court the usual undertaking as to damages;
(2)Order that until the further order of the Court the defendant be restrained from, by himself, his servants or agents or otherwise:
(a)retaking possession of premises being the land and improvements comprised in folio identifier A/160754 by reason of any default notice or notice of termination given prior to 25 July 2017; and
(b)otherwise interfering with the first plaintiff's claimed right of quiet enjoyment under the equitable lease that the first plaintiff claims exists by reason of exercise of the option for renewal comprised in registered lease 8804409E.
(3)Note that order (2) is made until further order on the basis that if the defendant seeks to discharge or vary those orders, it will be the plaintiffs that bear the legal and persuasive burden of demonstrating to the Court that the orders should be continued.
(4)Stand matter over for directions before me at 10.00am on 28 July 2017;
(5)Direct that these orders be entered forthwith.
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