Roussos v Mellios - [2003] NTSC 102

Roussos & Ors v Mellios & Ors [2003] NTSC 102
PARTIES:IRAKLIS ROUSSOS NOMINEES P/L (ACN 009 600 631) as Trustee for the IRAKLIS ROUSSOS FAMILY TRUST

and:
IRAKLIS ROUSSOS
V
ROMESO P/L as Trustee for the ROMESO UNIT TRUST
AND:
NIGHTCLIFF BUILDERS (NT) P/L (ACN 056 395 861) as Trustee for the NIGHTCLIFF BUILDERS UNIT TRUST
AND:
LANKY P/L (ACN 051 314 624) as Trustee for the NICHOLAS MELLIOS FAMILY TRUST
AND:
C. MELLIOS NOMINEES P/L (ACN 009 610 100) as Trustee for the C. MELLIOS FAMILY TRUST
AND:
LATHER P/L (ACN 054 315 687) as Trustee for the HARALAMBOS MELLIOS FAMILY TRUST
AND:
CHRISTOS MELLIOS
AND:
NICHOLAS MELLIOS
AND:
HARALAMBOS MELLIOS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:57/03 (20305783)
DELIVERED:  2 October 2003
HEARING DATES:  17 September 2003
JUDGMENT OF:  THOMAS J
CATCHWORDS:

REPRESENTATION:
Counsel:
Appellant:G Clift
Respondent:  N Henwood
Solicitors:
Appellant:De Silva Hebron
Respondent:  Cridlands
Judgment category classification:        C
Judgment ID Number:  tho200331
Number of pages:  34

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Roussos & Ors v Mellios & Ors [2003] NTSC 102
No. 57/03 (20305783)

BETWEEN:
IRAKLIS ROUSSOS NOMINEES P/L (ACN 009 600 631) as Trustee for the IRAKLIS ROUSSOS FAMILY TRUST

First Plaintiff
and:
IRAKLIS ROUSSOS
Second Plaintiff
AND:
ROMESO P/L as Trustee for the ROMESO UNIT TRUST

First Defendant
and:
NIGHTCLIFF BUILDERS (NT) P/L (ACN 056 395 861) as Trustee for the NIGHTCLIFF BUILDERS UNIT TRUST

Second Defendant
and:
LANKY P/L (ACN 051 314 624) as Trustee for the NICHOLAS MELLIOS FAMILY TRUST

Third Defendant
and:
C. MELLIOS NOMINEES P/L (ACN 009 610 100) as Trustee for the C. MELLIOS FAMILY TRUST

Fourth Defendant
and:
LATHER P/L (ACN 054 315 687) as Trustee for the HARALAMBOS MELLIOS FAMILY TRUST

Fifth Defendant
  and:
  CHRISTOS MELLIOS
  Sixth Defendant
and:
  NICHOLAS MELLIOS
  Seventh Defendant
and:
  HARALAMBOS MELLIOS
Eighth Defendant

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 2 October 2003)

This is an application for an interlocutory injunction pursuant to s 14 of the Supreme Court Act and Rules 38 and 46 of the Supreme Court Rules.
The injunctive relief is sought as a consequence of a dispute that has arisen between two families. The family of Mr Iraklis Roussos, who are the plaintiffs, and the Mellios family, who are the defendants.
Both families have worked for many years in the building/construction industry in Darwin.
Mr Roussos is the second plaintiff and the managing director of the first plaintiff. The first defendant is the trustee of the Romeso Unit Trust. The second defendant is the trustee of the Nightcliff Builders Unit Trust. The second defendant is not a party to the present proceedings.
The first defendant, the Trustee, is effectively under the control of the first plaintiff together with the third, fourth and fifth defendants. They each hold equal shares in the first defendant. The second plaintiff and the sixth, seventh and eighth defendants are directors of the first…

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: [2003] NTSC 102
Decision Date: 2 October 2003

CaseChat Overview and Summary

The plaintiffs, Iraklis Roussos and the IRAKLIS ROUSSOS FAMILY TRUST, sought an interlocutory injunction against the Mellios family and associated entities, restraining them from carrying out the compulsory redemption of a unit in the Romeso Unit Trust. This was due to a long-standing dispute between the two families over the management and financial viability of a caravan park they jointly developed. The court had to decide if there was a serious question to be tried, if the plaintiffs would suffer irreparable harm without the injunction, and if the balance of convenience favoured granting the injunction.

The court found that while some claims in the plaintiffs' Statement of Claim raised serious issues to be tried, the specific issue of the compulsory redemption of the unit did not. The Trust Deed clearly allowed for compulsory redemption and there was no evidence the redemption was done in bad faith or in breach of the Deed. The court also found that damages would be an adequate remedy for the plaintiffs' concerns and that granting the injunction would likely cause more harm to the defendants in maintaining the caravan park business. Therefore, the balance of convenience did not favour granting the injunction.

Accordingly, the Court refused the plaintiffs' application for an interlocutory injunction. The plaintiffs were also ordered to pay the defendants' costs of the application.

Orders