Turner v Newport Stage 2A Pty Ltd - [2008] SADC 125

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TURNER v NEWPORT STAGE 2A PTY LTD & ORS
[2008] SADC 125
Judgment of His Honour Judge David Smith
1 October 2008
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS
Application for interlocutory injunction – plaintiff entered into contracts with respectively the first and second defendants to purchase a villa and lease a marina berth in Newport Quays Marina Development – plaintiff alleges that agents of the defendants represented that a lift could be provided to service the three-storey villa – plaintiff alleges that he entered contracts on that basis and paid deposits by way of bank guarantees – the defendants notified the plaintiff that a lift could not be installed – plaintiff purported to rescind the contracts – defendant denied the alleged representation about the lift and refused to accept the rescission – on application for interlocutory injunction discussion of whether plaintiff elected to affirm the contract and thereby precluded the right to seek rescission – also discussion of the extent of knowledge required for an election – discussion of principles applicable to the granting of interlocutory injunctions.
Held – application for interlocutory injunction granted.
Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57, applied.
Castlemaine Tooheys Limited v South Australia [1986] 161 CLR 148; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Kilpatrick v State Supply Board (1991) 56 SASR 591; NWL Ltd v Woods [1979] IWLR 1294; Cayne v Global Natural Resources (1984) 1 All ER 225; State Transport Authority v Apex Quarries Ltd [1988] VR 187; Sargent v ASL Developments Ltd & Ors [1974] 131 CLR 634; Tiplady v Gold Coast Carlton Pty Ltd [1984] 3 FCR 426; Coastal Estates Pty Ltd v Melevende [1965] VR 433; ACMNET Pty Ltd v Ai Tel Pty Ltd [2007] SASC 96; Ewing International L.P. v Ausbulk Ltd (2008) 253 LSJS 195, considered.

TURNER v NEWPORT STAGE 2A PTY LTD & ORS
[2008] SADC 125

This is an application for an interlocutory injunction. The plaintiff seeks orders that the first and second defendants be restrained until the final determination of this action from appropriating two deposits given by him by way of bank guarantees.
The plaintiff entered into two contracts, respectively to purchase a three-storey villa and to lease a marina berth in a development in Port Adelaide known as “Marina Cove Newport Quays”. By reason of his medical condition he required a lift, and alleges that prior to entering into the contracts the defendants, by their sales agent, represented that a lift would be provided at an additional cost of about $15,000. The plaintiff says that acting on that assurance he entered into the purchase contract and the lease on 7 September 2006 and as required provided deposits by way of two bank guarantees.
The purchase price for the villa was $1,221,150 and the deposit was $122,115. The purchase price of the lease of the marina berth was $68,750 and the deposit payable for…

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: [2008] SADC 125
Decision Date: 1 October 2008

CaseChat Overview and Summary

Turner brought proceedings against Newport Stage 2A Pty Ltd and another defendant, seeking an interlocutory injunction to prevent the defendants from proceeding with the sale of a villa and lease of a marina berth in Newport Quays Marina Development. Turner alleged that the defendants' agents had represented that a lift could be provided to service the villa, and that he entered into the contracts on this basis. Upon discovering that a lift could not be installed, Turner sought to rescind the contracts, but the defendants denied the alleged representation and refused to accept the rescission.

The court was required to determine whether Turner had elected to affirm the contracts, which would preclude his right to seek rescission, and the extent of knowledge required for an election. The court also needed to consider the principles applicable to the granting of interlocutory injunctions, such as whether there was a serious question to be tried and whether the balance of convenience favoured the grant of the injunction.

In determining the application, the court found that there was a serious question to be tried as to whether the defendants' agents had made the alleged representation about the lift. The court also found that the balance of convenience favoured granting the interlocutory injunction, as Turner had suffered detriment by paying deposits by way of bank guarantees, and the defendants had not demonstrated any significant prejudice that would result from the grant of the injunction. Accordingly, the application for interlocutory injunction was granted.

The final orders of the court were that an interlocutory injunction be granted to Turner, restraining the defendants from proceeding with the sale of the villa and lease of the marina berth until the trial of the proceeding or further order. The defendants were also ordered to pay Turner's costs of the application.

Orders