Sawitri v Robson [No 2]
[2019] WASC 145
•3 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SAWITRI -v- ROBSON [No 2] [2019] WASC 145
CORAM: SMITH J
HEARD: 13 MARCH 2019 AND BY WRITTEN SUBMISSIONS FILED ON 25 MARCH 2019
DELIVERED : 13 MARCH 2019
PUBLISHED : 3 MAY 2019
FILE NO/S: CIV 1374 of 2019
BETWEEN: MEITY SAWITRI
Applicant
AND
SEAN ROBSON
Defendant
Catchwords:
Injunction - Interlocutory injunction - Whether to extend interlocutory injunction to restrain defendant from evicting plaintiff pending application for suspension of eviction orders made by Magistrates Court
Effect of equitable relief - Undertaking as to damages
Payments into court of money a condition of extensions of interim interlocutory injunction
Application for payment out of court by defendant - Principles considered - Application thwarted - Cheques for payment of money into court dishonoured
Legislation:
Residential Tenancies Act 1987 (WA), s 85(1)(c)
Result:
Interlocutory injunction extended on condition of payment into court of $2,500
Interlocutory injunction dismissed due to dishonouring of cheques
Application by defendant for payment of money out of court would have been granted but for the plaintiff's dishonoured cheques
Category: B
Representation:
Counsel:
| Applicant | : | In person & Mr Shane Hunter (known as A Iskander) appeared as McKenzie friend |
| Defendant | : | In person |
Solicitors:
| Applicant | : | Not applicable |
| Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Mineralogy v Sino Iron Pty Ltd [2018] WASC 307
Sawitri v Robson [2019] WASC 82
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76
SMITH J:
Introduction
These reasons:
(a)set out the reasons why an order was made extending an interim interlocutory injunction on 13 March 2019; and
(b)give reasons as to why, but for dishonoured cheques, I would make orders for payment of money out of court to the defendant, Mr Robson, of the monies required to be paid into court by Ms Sawitri to extend interim interlocutory orders made by Fiannaca J on 7 March 2019 and on 13 March 2019.
The history of the interim interlocutory orders made by Fiannaca J (on 27 February 2019 and 7 March 2019) and the reasons why his Honour made those orders are set out in his Honour's reasons in Sawitri v Robson.[1]
Applications for extension of interlocutory injunction – orders made by Fiannaca J on 27 February 2019 and 7 March 2019 – a relevant summary
[1] Sawitri v Robson [2019] WASC 82.
On 27 February 2019, Fiannaca J heard an urgent application ex parte for injunctive relief to prevent the eviction of the plaintiff, Ms Sawitri, her husband known as Mohamad Ali Iskander (whose name is Shane Hunter) and their children.
His Honour made an ex parte order granting an interim interlocutory injunction preventing enforcement of a property (seizure and delivery of vacant possession) order, made in the Magistrates Court on 20 February 2019, pending further hearing of the application for an interlocutory injunction on Thursday, 7 March 2019 at 2.15 pm.
It is clear from his Honour's reasons that:
(a)the order made by the Magistrates Court authorising the eviction, on 20 February 2019, was made in the absence of Ms Sawitri;
(b)Ms Sawitri had made an application to the Magistrates Court to set aside the order made on 20 February 2019 and had made an application to the Magistrates Court for a suspension order, pending the hearing to set aside the order made on 20 February 2019; and
(c)the grounds upon which Ms Sawitri made the applications to the Magistrates Court, and the application to this court for urgent interim injunctive relief, were that at no stage did she receive:[2]
(i)notification to attend a hearing before the Perth Magistrates Court on 20 February 2019; or
(ii)any claims or forms from the lessor (Mr Robson or his agent) 'for the basis of the application made for termination (of the residential tenancy) before the Perth Magistrates Court'.
[2] Sawitri v Robson [2019] WASC 82 [8] - [57], in particular [39].
On 7 March 2019, Ms Sawitri failed to appear at the further hearing of the application for an interlocutory injunction before Fiannaca J, as she was in Melbourne. Ms Sawitri had, earlier that day, made an application to appear by videolink from Melbourne, but that application was rejected by Fiannaca J.[3] Mr Iskander appeared before his Honour, and sought leave to appear as a McKenzie friend for Ms Sawitri, which was granted by his Honour.[4] The defendant, Mr Robson, appeared at the hearing having earlier filed three affidavits and supporting materials (submissions) opposing an extension of the interim interlocutory injunction.[5] As at 7 March 2019, Fiannaca J also had before him three affidavits filed on behalf of Ms Sawitri.[6]
[3] ts 2, 7 March 2019.
[4] ts 3, 7 March 2019.
[5] First affidavit of Shaun Robson, sworn 4 March 2019; second affidavit of Shaun Robson, sworn 5 March 2019; affidavit of Courtney Louise Arcus sworn 4 March 2019.
[6] First affidavit of Meity Sawitri, sworn 28 February 2019; affidavit of Ali Iskander, sworn 28 February 2019; second affidavit of Meity Sawitri, sworn 1 March 2019.
Annexed to Mr Robson's first affidavit was a copy of a residential tenancy agreement signed by Ms Sawitri and Mr Robson.[7] On the first page of the tenancy agreement it is indicated that Ms Sawitri (as tenant) had agreed to the receipt of notices and information by email, to the email address: [email protected].[8]
[7] Affidavit Sean Robson, sworn 4 March 2019, annexure SR 4, pages 29 ‑ 38.
[8] Affidavit Sean Robson, sworn 4 March 2019, annexure SR 4, page 29.
Also annexed to Mr Robson's first affidavit was a copy of an email sent to Ms Sawitri, on 30 January 2019, from Mr Robson's agent annexing a copy of a Form 12 application for court order seeking, among other orders, an order for termination of the residential tenancy agreement and eviction. Notice was given in the email and on the face of the application that the claim had been set down for hearing in the Magistrates Court on Wednesday, 20 February 2019 at 9.30 am.[9]
[9] Affidavit Sean Robson, sworn 4 March 2019 [34], annexure SK-17 pages 63 - 66.
On 7 March 2019, having read the affidavits and supporting materials filed by Mr Robson, his Honour formed the opinion that the factual basis on which the hearing had proceeded, on 27 February 2019, was incomplete and, in some respects, was either untrue or inaccurate.[10]
[10] Sawitri v Robson [2019] WASC 82 [6].
Notwithstanding his Honour's view, however, his Honour extended the interim interlocutory injunction until Wednesday, 13 March 2019, as a hearing in the Magistrates Court had been listed for Tuesday, 12 March 2019, to hear the application by Ms Sawitri for an order suspending the enforcement order that authorised the eviction of Ms Sawitri and her family from the premises.[11] The extension of the interim interlocutory injunction was granted on the condition that Ms Sawitri pay into court the sum of $300 by 10.00 am on Friday 8 March 2019.[12]
[11] Sawitri v Robson [2019] WASC 82 [6].
[12] Sawitri v Robson [2019] WASC 82 [7].
On 8 March 2019, a request for the payment of $300 into court was lodged in the court eFile.[13] The request bears stamps of the court indicating that $300 was received by a cashier, on 8 March 2019, and that payment into court had been approved on behalf of the Principal Registrar.
[13] Integrated Court Management System eBench document 13, lodged on 8 March 2019 at 9.33 am.
Application for extension of interlocutory injunction on 13 March 2019
At the hearing, on 13 March 2019, Ms Sawitri and Mr Robson appeared in person. Mr Iskander was also present in court.
At the hearing, the court was informed that the application in the Magistrates Court, for an order suspending the enforcement order that authorised the eviction of Ms Sawitri and her family, had been adjourned until 2.15 pm on Friday, 15 March 2019, as an interpreter had not been available at the Magistrates Court on 12 March 2019 to assist Ms Sawitri.[14]
[14] ts 29 ‑ 30, 13 March 2019.
Ms Sawitri, assisted by Mr Iskander, applied for an extension of the interim interlocutory order until Monday, 18 March 2019.
Mr Iskander (on behalf of Ms Sawitri) also applied for an extension of the interim injunction on grounds that Ms Sawitri wished to file a further affidavit to reply to the affidavit evidence of Mr Robson. In particular, the affidavit evidence of Mr Robson that when Ms Sawitri filled out the application to rent residential premises, Ms Sawitri and he (Mr Robson) had circled the word 'yes' to signify each person's agreement to notices and information being given by email.[15]
[15] Section 85(1)(c) of the Residential Tenancies Act 1987 (WA) provides that any notice or document required or authorised to be given under the Residential Tenancies Act to any person may, with the consent of that person or in other circumstances specified in the regulations, be given or served by electronic means in accordance with the regulations.
Ms Sawitri handed up a document, not in the form of an affidavit, in which she purported to state that the section indicating 'yes' to notices being served by email (on the application to rent residential premises) had not been circled by her, but by Mr Robson.
In the course of determining whether the application for a further extension of the interim interlocutory injunction should be granted, I asked the following questions and received the following responses:[16]
(a)'has there been any payment to [Mr Robson] of the outstanding rent?' To which Ms Sawitri replied that the payment into court had been made (as required by the order of Fiannaca J on 7 March 2019); and
(b)'why hasn't the outstanding rent been paid to the defendant?'[17] To which Mr Iskander stated (on behalf of Ms Sawitri) that they did not have enough money to both pay the rent and move into a new property.
[16] ts 27, 29, 13 March 2019.
[17] On the affidavit material, then before the court, it was not in dispute that from the time Ms Sawitri entered into the lease of the premises, on 23 November 2018, (at a rent of $350 per week) no rent had been paid to Mr Robson, nor was it in dispute that the rent was owing.
Mr Robson informed the court that he opposed a further extension of the interim injunction, but made a submission that if a further extension of the injunction was granted the court should make a conditional order requiring the plaintiff to pay an amount of $5,450 into court as security for damages, as security for the amount outstanding in rent as at 13 March 2019 (less the $300 paid into court). That amount did not include an amount of $1,400 for a bond (which had also not been paid).
Mr Robson also made a submission that if Ms Sawitri withdraws her application for review of the Magistrates Court eviction order, the court should order the amount ($5,450) be released to him.
Reasons why the interim interlocutory injunction was extended on 13 March 2019
After having regard to all of the affidavit material filed in the court prior to 13 March 2019, and other documents (including eFile document 13 which recorded that a payment of $300 had been accepted on behalf of the Registrar of the Court as a payment into court) I made the following orders:
(a)the application for the interlocutory injunction was adjourned to 4.00 pm on Monday, 18 March 2019;
(b)subject to Order 3 of the order, and Ms Sawitri paying into court the sum of $2,500 by 4.00 pm on Thursday, 14 March 2019, the interim injunction made on 27 February 2019 and extended on 7 March 2019, is extended until 4.00 pm on Monday, 18 March 2019; and
(c)if payment into court of the sum of $2,500 is not made by the plaintiff by 4.00 pm on Thursday, 14 March 2019, the interim injunction ceases to have effect at 4.01 pm on Thursday, 14 March 2019.
The reasons why I made these orders were as follows:
(a)I rejected Ms Sawitri's submission that she did not have the capacity to pay the outstanding rent. The evidence before the court to the contrary was as follows:
(i)There was evidence in annexure SR‑1 of Mr Robson's first affidavit (being a copy of a Westpac Banking Corporation statement in the name of Mr Iskander and Ms Sawitri for the period 1 September 2018 to 21 November 2018) that indicated that both Ms Sawitri and Mr Iskander were in receipt of monthly payments of a salary. In particular, Ms Sawitri was in receipt of a monthly salary of $3,561.59 and Mr Iskander had received monthly deposits of $4,380;[18] and
[18] Affidavit of Sean Robson, sworn 4 March 2019, annexure SR-1, pages 19 - 24.
(ii)I also had regard to the fact that whilst these proceedings have been on foot Ms Sawitri has had sufficient funds to fly to Melbourne;
(b)I had regard to the affidavit evidence of Mr Robson in his first affidavit at [30] and [34], together with annexures SR‑14 and SR‑17. Annexure SR-17 is a copy of an email that Mr Robson's agent sent to Ms Sawitri's email address attaching a copy of an application for court order (Form 12 Residential Tenancies Act 1987 (WA), which is annexure SR‑14) giving notice of the hearing at the Magistrates Court to be held in court 7.4 on level 7, 501 Hay Street, Perth on Wednesday, 20 February 2019 at 9.30 am.[19]
(c)I had regard to the fact that there was no evidence before the court that Ms Sawitri did not receive the notice by email and that the notice clearly stated:
(i)the time and place on which the hearing of the application for orders for the termination of the residential tenancy agreement was to be held; and
(ii)that orders for eviction of the tenant, possession of the premises to the lessor, payment of rent arrears and payment of unpaid bond were sought at the hearing.
(d)I had regard to what appeared to be an attempt by Ms Sawitri to shift the factual basis upon which she sought to set aside the orders made by the Magistrates Court authorising the eviction, from a claim that 'she did not receive the notice of the Magistrates Court hearing' to a claim that she 'did not consent to receive a notice by email'.
(e)In these circumstances, I was of the opinion that it was extremely doubtful that Ms Sawitri had made out a prima facie case that the Magistrates Court had denied her procedural fairness or that the balance of convenience favoured Ms Sawitri so as to invoke the jurisdiction of the court to extend the interim interlocutory injunction until 18 March 2019.
(f)However, I was satisfied that if an order extending the interim interlocutory injunction was not made, Ms Sawitri was likely to be evicted prior to the suspension application being heard and determined by the Magistrates Court. In these circumstances the probability of success that Ms Sawitri had to show in her prima facie case was extremely low. Balanced against this consideration was the consideration of the inconvenience and damage to Mr Robson who, at that point in time, had received no rent. In particular, if Mr Robson's case was to be accepted, there had been many promises to pay the outstanding rent which had not eventuated.
[19] Affidavit of Sean Robson, sworn 4 March 2019 [30], [34], annexures SR-14 and SR-17, pages 57 ‑ 58 and 63 ‑ 66.
Having regard to all the circumstances before me, I was prepared to extend the injunction until 18 March 2019, on the condition that Ms Sawitri pay into court the amount of $2,500 by 4.00 pm on 14 March 2019. In particular, I formed the opinion that this would address, in part, the inconvenience that Mr Robson had suffered by the imposition of the interim interlocutory orders, as an amount would be paid into court that was an amount equivalent to part of the amount of rent owed to Mr Robson by Ms Sawitri.
It was made clear to Ms Sawitri and Mr Iskander that if that payment was not made, then the interim injunction would cease to have effect at 4.01 pm on 14 March 2019.[20]
[20] ts 38, 13 March 2019.
Before 4.00 pm on 14 March 2019, Ms Sawitri lodged (by eFile) a request to pay $2,500 into court.[21] The request bears a stamp of the court that an amount of $2,500 was received by a cashier and that the payment into court had been approved by the Principal Registrar.
[21] Integrated Court Management System eBench document 16, lodged 14 March 2019 at 9.47 am.
Orders made on 18 March 2019
On 18 March 2019, the court received an application from Ms Sawitri seeking to withdraw the application for injunctive relief on the grounds that a suspension order had been granted by the Magistrates Court on Friday, 15 March 2019. Clearly, on the basis that it appeared to be the case that the pre‑conditions of payment of money into court (required by the interim interlocutory injunction orders made on 7 March 2019 and 13 March 2019) had been satisfied, Ms Sawitri had effectively been provided with final relief from this court. Any cause of action she may have had in this court had no further utility.
On 18 March 2019, Mr Robson made an application for payment out of court of the sum of $2,800.
As a result of the applications, the following orders were made on 18 March 2019:
(a)the application for an interim interlocutory injunction was dismissed;
(b)the hearing listed at 4.00 pm on Monday, 18 March 2019, was vacated; and
(c)the parties were to file and serve any submissions, on or before 4.00 pm on Monday, 25 March 2019, as to Mr Robson's application for payment of the money out of court.
Application for payment of money out of court
As required by the orders made on 18 March 2019, the parties filed written submissions as to the payment out of court in the amount of $2,800 that was alleged to have been paid into court by Ms Sawitri, in accordance with the orders made on 7 March 2019 and 14 March 2019.[22]
[22] Submissions were filed by both parties on 25 March 2019.
On 27 March 2019, it was brought to the court's attention that the payment made into court by Ms Sawitri:
(a)on 8 March 2019 at 9.33 am (of $300) had been by a cheque for that amount and that the cheque had been returned to the Central Office of the court by the Commonwealth Bank, on 14 March 2019, as dishonoured; and
(b)on 14 March 2019 at 9.47 am (for $2,500) had been by a cheque for that amount and that the cheque had been returned to the Central Office of the court from the Commonwealth Bank, on 19 March 2019, as dishonoured.
Despite the fact that the cheques had been dishonoured, Ms Sawitri filed submissions, on 25 March 2019, opposing the order sought by Mr Robson. The submissions made no mention of the dishonoured cheques and included a submission that Mr Robson's damages should be limited to the rent owed for the period that the interim interlocutory injunction was in place, which was assessed by Ms Sawitri to be a sum of $950.[23]
[23] Plaintiff's submissions with regards to costs, filed 25 March 2019 [5].
In the absence of any explanation from Ms Sawitri as to why the cheques were dishonoured, the court is unable to determine whether the cheques were presented to the court knowingly without sufficient funds in the account from which the amounts were to be drawn, in order to use the court's procedures to bring the administration of justice into disrepute. If it were the case, it would constitute, at the very least, a serious abuse of process.
Regretfully, in light of the cheques being returned by the Commonwealth Bank, the court is unable to make any order that any amount be paid out of court. If however, the cheques had not been dishonoured, I would have made an order that the sum of $2,800 be paid out of court to Mr Robson for the reasons that follow.
The effect of undertakings as to damages and payments into court
Interlocutory injunctive relief is an equitable remedy. To obtain equitable relief a claimant must come to the court with clean hands, that is, he or she must be prepared to perform his or her side of the bargain. The effect of this maxim is that if a plaintiff whose conduct has been improper in a transaction seeks relief in equity, that relief will be refused.
On 26 February 2019, Ms Sawitri filed a signed statement of an undertaking to pay to any party restrained or affected by the restraint imposed by an interlocutory injunction, such compensation as the court may in its discretion consider in the circumstances to be just.[24]
[24] Integrated Court Management System eBench document 2, lodged 28 February 2019.
Ms Sawitri is, however, correct in her submission that if the undertaking given by her is enforced, any damages assessed by the court as just should be limited to an assessment of the amount of rent incurred as owing during the period that the interim interlocutory orders were in effect.
In Mineralogy Pty Ltd v Sino Iron Pty Ltd, Quinlan CJ recently relevantly observed:[25]
In any matter concerning the enforcement of an undertaking as to damages two broad issues (at least theoretically) arise: first, whether to enforce the undertaking and, secondly, the measure of damages. The first issue raises a matter of discretion. The second does not. As Lord Diplock described the position in Hoffman-La Roche & Co AG v Secretary for Trade and Industry:
The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant's benefit. It retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction.
[25] Mineralogy v Sino Iron Pty Ltd [2018] WASC 307 [34].
His Honour also observed:[26]
Sino Iron also relied upon the observation by Dr Spry that 'in special cases' a plaintiff that is ultimately successful may be called upon to pay damages where a defendant has unjustly suffered damage through the inappropriate imposition of an interlocutory restraint.
I accept that, in an appropriate case, an undertaking as to damages could be enforced against a plaintiff who was ultimately successful on the merits of the main action. As with the enforcement of an undertaking generally, it is a matter of discretion. Much will, of course, depend upon the circumstances of the particular case (including the nature of the interim injunction and the final relief, and the conduct of the parties generally). Nevertheless, in my view, in such a case the plaintiff's ultimate success is a matter relevant to the exercise of the discretion.
[26] Mineralogy v Sino Iron Pty Ltd [2018] WASC 307 [80] - [81].
Consequently, pursuant to the undertaking as to damages that Ms Sawitri filed as the plaintiff in this matter, Ms Sawitri is liable to Mr Robson for the damage suffered by him as a result of the interlocutory orders made by this court, which is an amount equal to the loss of rent from 27 February 2019 to 15 March 2019, together with any other amount that could be said to be owing due to the plaintiff's occupation of the premises during that period, such as use of water supplied to the premises.
The order made by Fiannaca J to grant an extension of the interim interlocutory injunction, on 7 March 2019, was an order made in the nature of an order to enforce the undertaking.
As it is not in dispute that the sum of $300, required to be paid pursuant to the order made by Fiannaca J on 7 March 2019, is less than the amount Ms Sawitri says would be payable pursuant to the undertaking as to damages, the sum of $300 should be paid to Mr Robson.
As to the orders made on 13 March 2019, as Mr Robson points out in his written submissions, Ms Sawitri has never disputed that she had not paid any rent and owes him a sum that well exceeds $2,800.[27]
[27] As at the date of the filing of Mr Robson's submissions, on 25 March 2019, Mr Robson claims Ms Sawitri owes him $6,570 (excluding interest), being $5,700 in rent (excluding bond); $647 in bailiff costs; and $223 in water usage), see defendant's submissions, filed 25 March 2019 [8].
The order to extend the interim interlocutory injunction, on 13 March 2019, on condition of the payment of $2,500 into court, was not made pursuant to the undertaking given by Ms Sawitri to pay damages. The conditional order was made to create an order of a different character. Two thousand five hundred dollars was ordered to be paid into court as an amount representing a part‑payment of the rent owing to Mr Robson, in contemplation that an application would be made by Mr Robson (to be determined at a later time) for payment of the money out of court.
The conditional order made on 13 March 2019, and the reasons why that order was made, is not novel.
In Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2], the Court of Appeal observed that a plaintiff may be required to pay a disputed sum into court, or to pay current amounts outstanding to a defendant into court, as a means of doing equity where it is the plaintiff who is applying for injunctive relief. Their Honour's explained: [28]
[28] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [141] - [145] (Buss P, Murphy JA & Beech J).
[A] plaintiff may itself be required to pay a disputed sum into court as a means of doing equity where it is the plaintiff who is applying for injunctive relief. Payments into court pending trial are not uncommon in the context of a suit to restrain the defendant from withdrawing services under an agreement which the defendant had purportedly terminated. In Businessworld Computers Pty Ltd v Australian Telecommunications Commission, the respondent (Telecom) had disconnected the applicant's telephone services for alleged non‑payment of accounts. The applicant commenced proceedings challenging the lawfulness of the disconnection, and sought an interlocutory injunction, pending trial, under which Telecom was to be 'restrained … from continuing the disconnection' of the services. The order sought was, in substance, a mandatory injunction for restoration of the telephone services.
The unpaid amounts totalled $22,000. Gummow J found that even if the accounts were authorised, there was a serious question to be tried as to the quantum of at least $7,000. His Honour observed that that itself would not support the grant of interlocutory injunctive relief, and that the applicant was still required to show some legal right attracting injunctive relief. His Honour found, in effect, that the applicant had done that in relation to the question of Telecom's right to withdraw services in the context of the contractual and statutory scheme under which the services were supplied. His Honour granted the interlocutory injunction subject to the applicant giving to the court undertakings, including that it would pay $15,000 ($22,000 less $7,000) into court, pay its current accounts, and pay to Telecom 'all sums due and payable under any further account issued by [Telecom] during the pendency of these proceedings'. His Honour said:
The present case is appropriate for mandatory interlocutory relief. The grant thereof will not, in any practical sense, decide the case on a final basis because the consequences can be undone if final relief is refused; if the applicant fails at the trial, disconnection will be a simple and inevitable step. In the meantime, the position of the respondent is secured by undertakings, on the part of the applicant, inter alia, to pay promptly into court a substantial proportion of the sum claimed by the respondent. On the other hand, the denial of mandatory relief is likely to mark severe injustice to the applicant by damage to its business and goodwill, and damage to goodwill is not readily reducible to monetary compensation. Nor, as I have already said, is this a case where there is any significant element of personal trust or confidence between the parties upon which the effective continuance of their relationship depends, or where there is difficulty in framing or observing the terms of an injunction. (emphasis added)
A somewhat similar circumstance to Businessworld arose in Telstra Corporation Ltd v First Netcom Pty Ltd. There, Telstra Corporation Ltd (Telstra) supplied certain telecommunications services to the customers of First Netcom Pty Ltd (First Netcom), an intermediate purveyor of telecommunications services. Telstra sued First Netcom to recover unpaid amounts for the services in the sum of approximately $13.9 million. It also gave notice that it would disconnect First Netcom's customers under a contractual right to terminate if accounts were unpaid. First Netcom cross‑claimed seeking damages for $30 million, and also, it appears, sought an interlocutory injunction restraining Telstra from (amongst other things) discontinuing the provision of services to First Netcom's customers. The trial judge granted the interlocutory injunction without requiring First Netcom to pay into court or secure the payment of the disputed amounts. That decision was overturned in the Full Court. The Full Court said:
It is a fundamental maxim of equity that he who seeks equity must do equity. The learned authors R P Meagher, W M Gummow, J R F Lehane Equity: Doctrines and Remedies (3rd ed, 1992), par 311, describe this as among the most important of the maxims, for it is at the heart of the remedies which a court administering an equitable jurisdiction will grant.
Thus, a court of equity will not make an order for specific performance of an agreement (and there is an analogy between an order for specific performance and the mandatory injunction sought in the present case) unless the party seeking that order is ready, willing and able to perform his or her side of the bargain. (emphasis added)
The Full Court observed, in effect, that, where a party (applicant) seeks a mandatory injunction to restrain the other party (respondent) from terminating their agreement in the (alleged) exercise of a contractual right, the applicant should itself show its readiness and willingness to perform the agreement to which it seeks to hold the respondent. In such a case where moneys were allegedly due under the agreement, that would ordinarily require the applicant, in addition to the usual undertaking as to damages, to pay any amounts not in dispute to the respondent, and to pay into court any disputed amounts, although in some circumstances (as in Businessworld) the court may require some amount less than the full disputed amounts to be paid into court. In determining what amount should be paid into court in that regard, consideration should be given to the solvency of the applicant. Where the applicant does not pay all the disputed amounts either to the respondent or into court, or does not give security for all the disputed amounts (in addition to an undertaking to pay all future amounts), then the respondent could 'be forced to continue to do business, and incur perhaps ever greater indebtedness, and ultimately be left lamenting for amounts unpaid'.
The Full Court continued:
Thus the failure to direct attention to the need for First Netcom to do equity as a condition of the grant of the mandatory injunctive relief and the related failure to treat the question of the solvency of First Netcom as a matter requiring immediate examination rather than full litigation in the future, both involved, in our view, errors of principle. Before granting interlocutory relief in the form of a mandatory injunction it was incumbent upon the learned primary judge to determine what provision should be made to secure the position of Telstra, should trading continue between the parties and, to the extent that the whole amount owing was not paid or secured, the financial situation of First Netcom was a matter of the greatest significance. This was particularly so in the present case when such evidence as there was before his Honour as to the capacity of First Netcom to pay indicated that that company had a share capital of only $4 …
In these circumstances in our view it would be quite wrong in principle to require Telstra to continue to perform its side of the agreement with First Netcom, when that company has neither offered to pay, paid into court or offered to secure payment, of the amounts in dispute.
For these reasons, but for the cheques (accepted by the court as payments into court) being dishonoured, I would have made an order that the sum of $2,800 be paid out of court to Mr Robson.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EH
Research Associate/Orderly to the Honourable Justice Smith3 MAY 2019
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