Tavcol v Valbeet - [2014] NSWSC 1563

Supreme Court

New South Wales

Medium Neutral Citation: Tavcol v Valbeet [2014] NSWSC 1563
Hearing dates: 04/11/2014
Decision date: 04 November 2014
Jurisdiction: Equity Division - Technology and Construction List
Before: McDougall J
Decision:
Dismiss with costs the application for interlocutory mandatory injunction

Catchwords: EQUITY - equitable remedies - injunctions - application for interlocutory mandatory injunction - where lessee seeks order that lessor undertake works to property - where lessee is not at risk of suffering damage - where damage, even if it were suffered, is not substantial - where problems have been evident for at least 2 ½ years - whether matter of urgency
Legislation Cited: State Environmental Planning Policy (Exempt And Complying Development Codes) 2008
Cases Cited: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Category: Procedural and other rulings
Parties: Tavcol Pty Limited (First Plaintiff)
Batroon Pty Limited (Second Plaintiff)
Simion Pty Limited (Third Plaintiff)
Valbeet Pty Limited (Defendant)
Representation: Counsel:
M Pesman SC (Plaintiff)
D S Weinberger (Defendants)
Solicitors:
ERA Legal (Plaintiff)
Thomsons Lawyers (Defendants)

File Number(s): 2012/373706

Judgment

HIS HONOUR: The defendant (Valbeet) is the proprietor of premises at Parramatta. The ground floor of those premises comprises what is known as the Collector Tavern. The first plaintiff (Tavcol) is the lessee of the tavern. It became lessee by way of a transfer of lease back in October 1999, which transfer has been registered (as has the underlying lease).

The plaintiffs say that Tavcol entered into the lease as agent for undisclosed principals, namely the second and third plaintiffs (respectively, Batroon and Simion). The merits of that claim are yet to be tested in a final hearing. Batroon and Simion say that, because they were the undisclosed principals of Tavcol for whom it entered into the transfer of lease, they are entitled to enforce the lease as against Valbeet. Again, the merits of that proposition are yet to be tested in a final hearing.

It is convenient to mention at this point that the plaintiffs have made it clear that Tavcol has not suffered any monetary loss and makes no claim for damages, past or future. That reflects the fact, as the plaintiffs have also made clear, that the profits of trading at the tavern are divided between Batroon and Simion. (For a period of one year, there was a third entity involved; but it can be put to one side for present purposes.)

Among the many complaints made by the plaintiffs is a complaint that

Valbeet has failed to perform its obligations of maintenance and repair under the lease. The plaintiffs - specifically, I think, Batroon and Simion - claim to have suffered damages. Although the proceedings were commenced in 2012 (by Tavcol alone, with Batroon and Simion being added by amendment in 2013), no hearing date has been fixed.

The plaintiffs' complaints date back over a substantial number of years. However, they have brought the matter before the court today by way of a notice of motion filed on 13 October…

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.

Continue reading Tavcol v Valbeet

Details

AGLC: Tavcol v Valbeet [2014] NSWSC 1563
Case: [2014] NSWSC 1563
Decision Date: 04 November 2014

CaseChat Overview and Summary

In the matter of Tavcol Pty Limited v Valbeet Pty Limited, the Federal Court of Australia was called upon to determine an application for an interlocutory mandatory injunction. Tavcol, the lessee, sought an order that Valbeet, the lessor, undertake specific works to the leased property, citing ongoing issues with the premises. The case centred on whether the court should compel Valbeet to carry out repairs despite Tavcol's assertion that they were not currently at risk of suffering damage, and even if they were, the damage would not be substantial. The dispute also involved the length of time the issues had been apparent, with problems evident for at least 2 ½ years. A significant legal issue was whether the circumstances constituted a matter of urgency warranting an interlocutory mandatory injunction.

The court examined whether Tavcol could satisfy the traditional criteria for an interlocutory mandatory injunction, namely that irreparable harm would occur if the injunction was not granted, and the balance of convenience favoured the grant of the injunction. The court noted that Tavcol had not established that they were at immediate risk of suffering damage. Furthermore, the court observed that even if Tavcol were to suffer damage, it would not be substantial. The court also considered the length of time the issues had been evident, with problems apparent for at least 2 ½ years, which did not support a finding of urgency. The court held that the matter did not meet the threshold for an interlocutory mandatory injunction as the balance of convenience did not favour Tavcol.

The court ultimately dismissed Tavcol's application for an interlocutory mandatory injunction. The court found that Tavcol had not demonstrated that they were at risk of suffering damage, and even if they were, the damage would not be substantial. Additionally, the court noted that the problems had been evident for a significant period, which did not support a finding of urgency. As a result, the application was dismissed, and no interlocutory mandatory injunction was granted. The court emphasised the need for the traditional criteria to be met before such an injunction would be appropriate.

Orders