Tranchita v Danehill Nominees Pty Ltd
[2004] WASC 154
TRANCHITA -v- DANEHILL NOMINEES PTY LTD & ORS [2004] WASC 154
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 154 | |
| Case No: | CIV:1124/2004 | 28 JUNE 2004 | |
| Coram: | MASTER NEWNES | 8/07/04 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Injunction extended to trial | ||
| B | |||
| PDF Version |
| Parties: | VINCENZO TRANCHITA DANEHILL NOMINEES PTY LTD VINCENZO FAZIO GIUSEPPINA FAZIO VINCENT CALALESINA MARIA CALALESINA SEBASTIANO FAZIO MARIA SEBASTIANO BIANCA ROSIE NASO GIUSEPPE MONASTRA NUNZIATA MONASTRA ERIGO FAZIO REGISTRAR OF TITLES |
Catchwords: | Practice and procedure Interlocutory injunction Preemptive right Whether at the time the right is exercised plaintiff must be ready and willing to complete contract of sale then arising Turns on own facts |
Legislation: | Transfer of Land Act 1893 (WA), s 138 |
Case References: | Bahr v Nicolay (No 2) (1988) 164 CLR 604 Jonns & Anor v Kim Seong Tan & Ors [1999] NSWSC 648; [2001] ANZ Conv R 136 Mehmet v Benson (1965) 113 CLR 295 Motor Works Ltd v Westminster Auto Services Ltd [1997] 1 NZLR 762 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 76 ALJR 1 Bacon v O'Dea (1989) 88 ALR 486 Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd (1995) 326 NSWR 510 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349 Lumley v Wagner (1852) 42 ER 687 National Australia Bank Ltd v Bond Brewing Holdings [1991] 1 VR 386 Pata Nominees Pty Ltd v Durnsford Pty Ltd [1988] WAR 365 Port Kennedy Resorts Pty Ltd v Huat [2000] WASCA 328 Pritchard v Briggs [1980] 1 All ER 294 Richardson v Forestry Commission (1988) 164 CLR 261 Transfield Properties (Kent Street) Pty Ltd v Amos Aked Swift Pty Ltd (1994) 36 NSWLR 321 Walker Corporation Pty Ltd v W R Pateman Pty Ltd (1990) 20 NSWLR 624 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DANEHILL NOMINEES PTY LTD
First Defendant
VINCENZO FAZIO
GIUSEPPINA FAZIO
Second Defendants
VINCENT CALALESINA
MARIA CALALESINA
Third Defendants
SEBASTIANO FAZIO
MARIA SEBASTIANO
Fourth Defendants
BIANCA ROSIE NASO
Fifth Defendant
GIUSEPPE MONASTRA
NUNZIATA MONASTRA
Sixth Defendants
(Page 2)
- ERIGO FAZIO
Seventh Defendant
REGISTRAR OF TITLES
Eighth Defendant
Catchwords:
Practice and procedure - Interlocutory injunction - Preemptive right - Whether at the time the right is exercised plaintiff must be ready and willing to complete contract of sale then arising - Turns on own facts
Legislation:
Transfer of Land Act1893 (WA), s 138
Result:
Injunction extended to trial
Category: B
(Page 3)
Representation:
Counsel:
Plaintiff : Mr A J N Aristei
First Defendant : Mr M J McCusker QC & Mr L E James
Second Defendants : Mr M J McCusker QC & Mr L E James
Third Defendants : No appearance
Fourth Defendants : No appearance
Fifth Defendant : No appearance
Sixth Defendants : No appearance
Seventh Defendant : Mr R Guerrini
Eighth Defendant : No appearance
Solicitors:
Plaintiff : Su Lloyd & Associates
First Defendant : Kott Gunning
Second Defendants : Kott Gunning
Third Defendants : Arthur Metaxas & Co
Fourth Defendants : Arthur Metaxas & Co
Fifth Defendant : Arthur Metaxas & Co
Sixth Defendants : Arthur Metaxas & Co
Seventh Defendant : Vincent Partners
Eighth Defendant : No appearance
Case(s) referred to in judgment(s):
Bahr v Nicolay (No 2) (1988) 164 CLR 604
Jonns & Anor v Kim Seong Tan & Ors [1999] NSWSC 648; [2001] ANZ Conv R 136
Mehmet v Benson (1965) 113 CLR 295
Motor Works Ltd v Westminster Auto Services Ltd [1997] 1 NZLR 762
Case(s) also cited:
American Cyanamid Co v Ethicon Ltd [1975] AC 396
(Page 4)
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 76 ALJR 1
Bacon v O'Dea (1989) 88 ALR 486
Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd (1995) 326 NSWR 510
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349
Lumley v Wagner (1852) 42 ER 687
National Australia Bank Ltd v Bond Brewing Holdings [1991] 1 VR 386
Pata Nominees Pty Ltd v Durnsford Pty Ltd [1988] WAR 365
Port Kennedy Resorts Pty Ltd v Huat [2000] WASCA 328
Pritchard v Briggs [1980] 1 All ER 294
Richardson v Forestry Commission (1988) 164 CLR 261
Transfield Properties (Kent Street) Pty Ltd v Amos Aked Swift Pty Ltd (1994) 36 NSWLR 321
Walker Corporation Pty Ltd v W R Pateman Pty Ltd (1990) 20 NSWLR 624
(Page 5)
1 MASTER NEWNES: This is an application by the plaintiff for an order extending until trial an injunction restraining the eighth defendant, the Registrar of Titles, from registering certain transfers of land lodged on behalf of the other defendants. The third to sixth and eighth defendants did not appear on the application, but it was opposed by the first and second defendants.
2 The essential facts giving rise to this action were not in dispute on this application. The land in question was purchased by the plaintiff and his co-owners in about May 1984. Since that time, various agreements have been entered into by the co-owners dealing with their respective rights and obligations in relation to the land. Relevantly, for present purposes, on 30 August 2000, a written agreement was executed by each of the co-owners, with the exception of the first and second defendants. The agreement is brief and it provides, among other things, that:
"I further agree that should I decide to sell or transfer my interest in the land it will first be offered to the members of my Group and if any or all members of my Group do not wish to purchase the interest in the land being offered it will then be offered on the same terms and conditions to the other two groups mentioned herein in proportionate equal shares."
3 The various groups are then specified. There are three groups, one consisting of eight members of the Tranchita family, another consisting of the third defendant, fifth defendant and the sixth defendant and the third group consisting of the fourth defendant, the seventh defendant and two other co-owners by the name of Grego.
4 On 11 September 2002, the plaintiff received a letter dated 6 September 2002, written on behalf of the first and second defendants. The letter noted that a number of co-owners had approached the first and second defendants to see if they would purchase their interest in the land. In the letter, the first and second defendants offered to purchase the interests of the other co-owners for an amount of $10,793 per acre. The offer was subject to a number of conditions.
5 At about the same time, the plaintiff received a letter dated 9 September 2002 ("9 September letter") addressed both to the members of the Tranchita group and to the first and second defendants. The letter was written on behalf of the third to seventh defendants and the Gregos. In the letter, those parties informed the Tranchita group, and the first and second defendants, that they were prepared to sell their interests in the
(Page 6)
- land for $10,973 per acre and requested that the recipients indicate by close of business on 16 September 2002 whether they intended to purchase any of the interests offered for sale.
6 On 11 September 2002, the plaintiff sent an e-mail in response to the 9 September letter saying that he did not believe the offer was made in accordance with the agreement of 30 August 2000 and, in addition, that one week was not a reasonable time to allow for a response to the offer.
7 On 13 September 2002, the senders of the 9 September letter wrote again to the other co-owners noting that the plaintiff had claimed their offer was not in accordance with their legal obligations under the 30 August agreement and withdrawing the offer.
8 A notice dated 21 September 2002 of a general meeting of the co-owners was then sent to the various co-owners by Mr Grego, acting in the capacity of secretary of the syndicate of owners. The notice advised of a meeting on 30 September 2002 at which consideration would be given by the relevant co-owners, among other things, to purchasing the interests being offered for sale by the senders of the 9 September letter and alternatively to the acceptance by the relevant co-owners of the offer to purchase contained in the letter of 6 September 2002.
9 The plaintiff responded by e-mail of 23 September 2002 in which he said he did not consider the meeting met the requirements of the 30 August agreement.
10 It is not clear what happened on 21 September, but a further meeting was arranged for 7 October 2002. The plaintiff did not attend that meeting. It appears from the minutes of the meeting that all of the other co-owners, apart from the Gregos, declined to purchase the interests offered in the 9 September letter, but agreed to sell their interests to the first and second defendants on the terms of the 6 September letter. The Gregos wanted more time to consider their position.
11 On 9 October 2002, the plaintiff lodged a caveat against the title to the land. By that caveat, the plaintiff claimed an interest as the holder of an option to purchase the land under the 30 August agreement.
12 There, so far as the plaintiff was concerned, the matter effectively rested until, by letters dated 20 January 2004, he received notice under s 138 of the Transfer of Land Act1893 (WA) from the eighth defendant that transfers of the interests in the land of the third to seventh defendants had been lodged and that, unless otherwise directed by the Court, the
(Page 7)
- transfers would be registered at the expiration of 14 days; that is, on 5 February 2004. In each case the transfer of the interest was to the first defendant.
13 On 4 February 2004, the plaintiff obtained, on an urgent ex parte basis, relief under s 138 of the Transfer of Land Act in the form of an injunction restraining the eighth defendant from registering the transfers until the hearing of this application. The injunction has since been extended until the determination of this application.
14 The issue before me is whether the injunction should be extended until trial or whether it should be discharged at this point.
15 Before I turn to the substantive issues, I should mention that counsel for the seventh defendant said the contract between his client and the first and second defendants had fallen through and the transfer of land document had since been cancelled and returned to his client. The seventh defendant therefore has no further interest in the matter.
16 In the writ of summons the plaintiff claims, among other things, an order for specific performance of the first to seventh defendants' "obligation of pre-emption contained in the agreement dated 30 August 2000 … by the said defendants executing and registering transfers of land to the plaintiff pursuant to the same terms and conditions as the transfers executed by the said defendants to [the first defendant] … " and a "declaration that the aforesaid obligation of pre-emption and the said agreement dated 30 August 2000 is valid and enforceable."
17 The claim for specific performance thus conflates the steps of the making of an offer by the relevant co-owners to the Tranchita group and the acceptance of that offer by the plaintiff alone, thereby giving rise to an enforceable contract. It is implicit in the plaintiff's case that, the triggering event for the pre-emptive right having occurred, the offer must be made by the relevant defendants and, once made, it will be accepted by the plaintiff, and the plaintiff alone, as a member of the Tranchita group.
18 No point was taken by the first and second defendants about the form of relief claimed and it seems to me that even if the rights of the plaintiff were to be regarded at this stage as limited as requiring the third to seventh defendants to make an offer to the Tranchita group on the same terms as they intended to transfer their interests to the first defendant, that right would arguably be enforceable by an order for specific performance: Motor Works Ltd v Westminster Auto Services Ltd [1997] 1 NZLR 762 at 766.
(Page 8)
19 It was conceded by the first and second defendants for the purposes of this application that, the event allegedly triggering the right of pre-emption having occurred, whether or not the plaintiff had a beneficial interest in the land capable of supporting a caveat was arguable. That concession was made in light of the decision of the Court of Appeal of New Zealand in Motor Works Ltd v Westminster Auto Services Ltd (supra) and the decision of the Supreme Court of New South Wales in Jonns & Anor v Kim Seong Tan & Ors [1999] NSWSC 648; [2001] ANZ Conv R 136, and the cases there cited.
20 The first and second defendants submitted, however, that the basis for the extension of the injunction had not been made out.
21 The first and second defendants submitted that the plaintiff has at no time said that he is ready, willing and able to complete a contract to purchase the interests of the other co-owners. Nor has the plaintiff said that if an offer were made to him by the other co-owners, he would accept it. The plaintiff had not sought to accept the offer contained in the 9 September letter, but had merely complained that it was not strictly in accordance with the 30 August agreement and that one week was too short a notice for him to determine whether or not to acquire the interests offered. The plaintiff had not said in what respect he alleged the offer was not in accordance with the 30 August agreement nor on what basis he claimed that the time allowed was unreasonable, no time being stipulated in the 30 August agreement.
22 The first and second defendants contended that it was clear the plaintiff had no serious intention of purchasing the interests of the other co-owners in the land. It was submitted that that was also evident from the plaintiff's response to the notice of meeting of 30 September to discuss the 6 September and 9 September offers. Although the notice had said that "your attendance is vital", the plaintiff had elected not to attend. Instead, he had merely asserted that the requirements of the 30 August agreement needed to be addressed before the meeting. Similarly, the plaintiff chose not to attend the meeting of 7 October 2002 at which the offers were discussed and the other co-owners, apart from the Gregos, agreed to sell their respective interests to the first and second defendants.
23 It was submitted on behalf of the first and second defendants that it was therefore clear that there is not now, and there has never been, any intention by the plaintiff to purchase the interests of the third to seventh defendants in the land and there has been no statement by the plaintiff that he is ready, willing and able to do so.
(Page 9)
24 It was also submitted that, although the present claim is by the plaintiff alone, and not by other members of the Tranchita group, the plaintiff claims to be entitled to a right of first refusal over all of the interests in the land held by the other co-owners. It was argued that, in fact, under the 30 August agreement, he would only be entitled to a proportionate share, equal to his proportion of the total interests held by the Tranchita group.
25 That contention, however, seems to me, as was submitted by counsel for the plaintiff, to depend upon the proper construction of the 30 August agreement. In the absence of any other member of the Tranchita group evincing an interest in purchasing the land offered for sale by the other co-owners, it is, I think, arguable that it would be open to the plaintiff to purchase all of the interests in the land so offered.
26 In response to the argument that the plaintiff had already received an offer from the third to seventh defendants to sell their interests by the 9 September letter, counsel for the plaintiff submitted that, among other things, that offer plainly did not comply with the terms of the 30 August agreement because it was a joint offer to the Tranchita group and the first and second defendants. The obligation of the third to seventh defendants under the 30 August agreement was to offer their interests first to the other parties to that agreement. The first and second defendants were not parties to the 30 August agreement. It seems to me that that arguably is correct and that the 9 September letter did not discharge the third to seventh defendants' obligations.
27 It was submitted on behalf of the plaintiff that the question of whether the plaintiff was ready, willing and able to purchase the interests of the third to seventh defendants did not arise at this stage. The land had not yet been offered for sale to him in accordance with the 30 August agreement. Moreover, the question of whether the plaintiff was ready, willing and able was not a question that arose at the time a contract was entered into, but one that was only relevant at the time when performance was due.
28 Counsel for the plaintiff referred to the plaintiff's affidavit sworn 26 March 2004 in which the plaintiff says he is willing, ready and able to accept a formal offer of the interests sought to be sold by the other co-owners of the land. It was submitted that that was sufficient in the present circumstances. There was, in any event, no evidence of the plaintiff's inability or incapacity to perform the contract that would come
(Page 10)
- about as the result of his acceptance of a proper offer made pursuant to the 30 August agreement.
29 It is, of course, the case that in order to obtain an order for specific performance, a plaintiff will be required to establish that they are ready and willing to perform the essential terms of the contract when the time for performance arrives: Mehmet v Benson (1965) 113 CLR 295, per Barwick CJ at 308, Windeyer J at 314; Bahr v Nicolay (No 2) (1988) 164 CLR 604.
30 In Mehmet v Benson, Windeyer J said (at 314):
"At the date when the suit is commenced the plaintiff must then be in a position to say that he is ready and willing to do at the proper time in the future whatever in the events that have happened the contract requires that he do … And he must show too that he has performed or been ready or willing to preform the terms of the contract on his part … "
- In the same case, Barwick CJ pointed out (at 307):
"The question as to whether or not the plaintiff has been and is ready and willing to perform the contract is one of substance not to be resolved in any narrow or technical sense. It is important to bear in mind what is the substantial thing for which the parties contract and what on the part of the plaintiff … are his essential obligations."
32 As the plaintiff's counsel pointed out, in this case there is not currently on foot any contract for the purchase by the plaintiff of the third to seventh defendants' interests in the land which the plaintiff is required to perform. That must await an offer to sell from those defendants and the plaintiff's acceptance of it. The plaintiff has expressly said that he is ready and willing to accept an offer so made.
33 In my view, for present purposes that statement by the plaintiff is sufficient. The position is likely to have been different if it were clear that the plaintiff would not, or could not, accept any such offer, or that any such acceptance would be meaningless because the plaintiff could not, or
(Page 11)
- would not, perform his obligations under the resulting contract, but there is no credible evidence to that effect. The plaintiff has said he would accept such an offer and there is no credible evidence that the plaintiff is not ready and willing to perform his obligations under a contract so constituted. I do not consider that the plaintiff's objection to the 9 September letter can be regarded as showing a lack of willingness or readiness on his part to purchase the relevant interests if they are offered to him in accordance with the 30 August agreement.
34 Even if the obligations that the plaintiff must be ready and willing to perform at this stage are regarded as extending to performance of the contract that would be constituted by his acceptance of an offer of the interests of the third to seventh defendants, I would not regard the absence of an express statement that he is ready and willing to perform such a contract as fatal to this application. As the absence in a statement of claim of a plea of readiness and willingness to perform is not necessarily fatal to a plaintiff, so much less would I regard the absence at this stage of an express statement to that effect as fatal.
35 I am satisfied there is a serious question to be tried. The question that remains is where the balance of convenience lies.
36 The plaintiff contended that the balance of convenience was overwhelmingly in his favour. If the injunction were not continued, the transfers of land would be registered and any rights he may have to acquire the interests of his co-owners under the 30 August agreement would be lost. Damages would be an entirely inadequate remedy. There was no evidence that the defendants would suffer any comparable harm, the only consequence to them of an extension of the injunction being that the registration of the transfers would be delayed and that was a matter that was readily compensable in damages.
37 I did not understand the first and second defendants seriously to contest the balance of convenience, if that point were reached, although counsel for those defendants drew attention to the fact that already the seventh defendant had terminated his agreement to sell his interest to the first and second defendants because of the delay. There was, however, no evidence that any of the other defendants intended or was likely to take that course and there was no evidence that damage beyond that referred to by the plaintiff might reasonably be contemplated at this stage as likely to be suffered by the defendants.
(Page 12)
38 In these circumstances, I consider the proper course is to extend the injunction to trial, with liberty to each of the defendants to apply on 48 hours' notice to vary or discharge the injunction should circumstances change.
39 I will hear the parties on the precise form of orders and costs.
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