TOTAL MARINE SERVICES PTY LTD -v- WALLER & ANOR [2002] WASC 8

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 8
Case No:	CIV:2888/2001	Heard:	19 DECEMBER 2001, 8 JANUARY 2002
Coram:	ROBERTS-SMITH J	Delivered:	10/01/02
No of pages:	20	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
PDF Version

Parties:	TOTAL MARINE SERVICES PTY LTD KENNETH JAMES WALLER MURIEL ANNE WALLER
Catchwords:	Interlocutory injunction Agreement to transfer registration of ownership of dredges as security for monies owing Whether implied term Transfer to be done within reasonable time Refusal to transfer Whether damages an adequate remedy Balance of convenience Balance of risk of doing an injustice
Legislation:	Rules of the Supreme Court of Western Australia, O 59 r 9 Supreme Court Act 1935 (WA), s 25(9)
Case References:	American Cyanamid Co v Ethicon Ltd [1975] AC 396 Beswicke v Alner [1926] VLR 72 Bristol City Council v Lovell [1998) 1 WLR 446 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Cayne v Global Natural Resources [1984] 1 All ER 225 Corporation of the City of Enfield v Development Assessment Commission (2000) 169 CLR 400 Evans Marshall and Co Ltd v Bertola SA [1973] 1 WLR 349 London and Blackwell Railway Co v Cross [1886] 31 Ch 354 Mott v Mount Edon Goldmines (1994) 12 ACLC 319 R v Macfarlane (1923) 32 CLR 518 State Transport Authority v Apex Quarries Ltd [1988] VR 187 Bond v Larobi Pty Ltd (1992) 6 WAR 489 BP Refinery (Westernport) v Hastings Shire Council (1977) 180 CLR 266 Carlton United Breweries v Bond Brewing (1987) 76 ALR 633 Demagogne Pty Ltd v Ramensky (1992) 110 ALR 608 HB Homes Pty Ltd v Beer [1986] 2 Qd R 379 Hopkinson v Logan (1839) 5 MW 241 Jericho v Guglielmin [1938] SASR 292 Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 Parker v Camden London Borough Council [1986] Ch 162 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 Tamplin v James (1880) 15 Ch D 215 Taylor v Johnson (1983) 151 CLR 422 Westminster Brymbo Coal & Coke Co v Clayton (1867) 36 LJ Ch 476

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : TOTAL MARINE SERVICES PTY LTD -v- WALLER & ANOR [2002] WASC 8 CORAM : ROBERTS-SMITH J HEARD : 19 DECEMBER 2001, 8 JANUARY 2002 DELIVERED : 10 JANUARY 2002 FILE NO/S : CIV 2888 of 2001 BETWEEN : TOTAL MARINE SERVICES PTY LTD

Applicant

AND

KENNETH JAMES WALLER

MURIEL ANNE WALLER

Respondents

Catchwords:

Interlocutory injunction - Agreement to transfer registration of ownership of dredges as security for monies owing - Whether implied term - Transfer to be done within reasonable time - Refusal to transfer - Whether damages an adequate remedy - Balance of convenience - Balance of risk of doing an injustice

Legislation:

Rules of the Supreme Court of Western Australia

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: [2002] WASC 8
Decision Date

CaseChat Overview and Summary

The case of Total Marine Services Pty Ltd v Waller involved a dispute between the plaintiff, Total Marine Services Pty Ltd, and the defendants, Kenneth James Waller and Muriel Anne Waller, over the ownership and possession of two dredges, the Sandpiper III and a smaller dredge. The plaintiff sought an interlocutory injunction and other orders to compel the defendants to transfer the registration of the dredges into the plaintiff's name and deliver possession of the dredges to the plaintiff. The central issue was whether an implied term should be read into the Heads of Agreement signed by the parties, which would require the defendants to transfer ownership of the dredges within a reasonable time.

The court considered the application for an interlocutory injunction in light of the principles governing such orders. The court found that the plaintiff had at least a reasonable prospect of success at trial, and that damages would not be an adequate remedy. The court assessed the balance of convenience and concluded that the potential prejudice to the plaintiff if the injunction were refused outweighed that which the defendants would suffer if the injunction were granted. The court was also mindful that the plaintiff had provided an undertaking as to damages, which would mitigate any potential injustice to the defendants.

The court ultimately granted the interlocutory injunction sought by the plaintiff, requiring the defendants to transfer the registration of the dredges into the plaintiff's name and deliver possession of the dredges to the plaintiff. The court's decision was based on the strength of the plaintiff's case, the inadequacy of damages as a remedy, and the balance of convenience favoring the grant of the injunction.

Orders