Sharman v Palmer - [2000] TASSC 58

[2000] TASSC 58

CITATION: Sharman v Palmer [2000] TASSC 58

PARTIES:  SHARMAN, Robin Geoffrey and
  SHARMAN, Elaine Kaye
  v
  PALMER, Anthony, and
  PALMER, Evelyn Joan

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  103/2000
DELIVERED ON:  25 May 2000
DELIVERED AT:  Hobart
HEARING DATES:  25 May 2000
JUDGMENT OF:  Evans J

CATCHWORDS:

Equity - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve status quo and property pending determination of rights - Mareva injunctions - Jurisdiction to grant - Only to be granted ex parte when necessary.

Aust Dig Equity [339]

REPRESENTATION:

Counsel:
           Applicants:  C J Bartlett
           Respondents:  Not served
Solicitors:
           Applicants:  Bartletts
           Respondent:  Not served

Judgment Number: [2000] TASSC 58
Number of Paragraphs: 12

Serial No 58/2000
File No 103/2000

ROBIN GEOFFREY SHARMAN and ELAINE KAYE SHARMAN
v
ANTHONY THOMAS PALMER and EVELYN JOAN PALMER

REASONS FOR JUDGMENT EVANS J

GIVEN ORALLY 25 May 2000

On 23 May 2000 the plaintiffs filed a writ seeking, inter alia, damages against the defendants for breaches of an agreement dated 25 June 1997. No statement of claim has been filed.

By an interlocutory application, the plaintiffs seek a Mareva injunction against the defendants. I was informed that an hour prior the hearing, copies of the interlocutory application and the firstnamed plaintiff's affidavit in support of the application were delivered to the office of solicitors who act for the defendants. The solicitors had not undertaken to accept service of proceedings on behalf of the defendants. Accordingly, the defendants have not been served. They are not represented before me. The plaintiffs seek to pursue their application ex parte.

By an agreement dated 25 June 1997 the defendants agreed to purchase the plaintiffs' dairy farm, together with cows, machinery and other items for a consideration of $1,213,000. A deposit of $100,000 was paid. The date for settlement of the purchase agreement is within 28 days of completion of a sale of the defendants' property at Busselton in Western Australia, or 1 July 2000.

Pursuant to the purchase agreement, the defendants took possession of the farm and agreed to make quarterly payments of rental totalling $44,000 per annum. The defendants have not paid the rental instalments due on 15 January 2000 and 15 April 2000. In February this year, the plaintiffs served the defendants with notice of a number of claims made by the plaintiffs against the defendants referable to asserted breaches of the purchase agreement. By letter dated 9 March 2000, the plaintiffs gave notice of termination of the agreement. The defendants vacated the farm on or about 14 March 2000 and since that date the plaintiffs have resided on the property.

In the latter part of March and in April of this year, negotiations were pursued between the parties in an unsuccessful effort to settle their disputes.

The material before the court shows that the plaintiffs have a prima facie claim against the defendants for damages in the vicinity of $300,000. The firstnamed plaintiff avers that:

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: [2000] TASSC 58
Decision Date: 25 May 2000

CaseChat Overview and Summary

In the matter of Sharman v Palmer, the plaintiffs, Robin Geoffrey Sharman and Elaine Kaye Sharman, sought an interlocutory injunction against the defendants, Anthony Thomas Palmer and Evelyn Joan Palmer, to preserve the status quo and their property pending the determination of their rights. The defendants had not been served with the writ or the application for the injunction. The plaintiffs sought a Mareva injunction to prevent the defendants from disposing of their assets to avoid a potential judgment in their favour. The defendants were not represented in court and the plaintiffs sought to pursue their application ex parte.

The court had to determine whether the plaintiffs had a prima facie case for damages against the defendants and if the granting of a Mareva injunction was necessary to prevent the defendants from disposing of their assets. The court had to balance the need to prevent an abuse of the court's process with the need to ensure that the injunction was not used as a tool to secure a hoped-for judgment or as a means to negotiate a settlement. The court had to consider the evidence presented by the plaintiffs and determine if it warranted the granting of an ex parte injunction.

The court held that the plaintiffs had a prima facie case for damages against the defendants, but the assertions as to urgency and risk pressed on behalf of the plaintiffs did not warrant dealing with their application ex parte. The court found that there was no evidence of the defendants trying to appropriate their assets to avoid a potential judgment in the plaintiffs' favour. The court held that the defendants should be given an opportunity to be heard before being visited with such a draconian order. The court refused to dispose of the plaintiffs' application ex parte and held that there was ample time for the defendants to be served with the application and given an opportunity to respond to it.

The court held that the plaintiffs' application for an interlocutory injunction was not to be disposed of ex parte. The court held that the defendants should be given an opportunity to be heard before being visited with such a draconian order. The court held that the plaintiffs' motivation for the application was to secure their position and to obtain an order which would assist them in their efforts to negotiate a settlement with the defendants, which was an inappropriate use of a Mareva injunction. The court held that the defendants should be given an opportunity to be heard before such an order was made.

Orders