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Twinside Pty Ltd v Venetian Nominees Pty Ltd

Twinside Pty Ltd v Venetian Nominees Pty Ltd

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Case Copied 10 June 2008 23 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TWINSIDE PTY LTD -v- VENETIAN NOMINEES PTY LTD [2008] WASC 110

CORAM: BEECH J

HEARD: 6 JUNE 2008

DELIVERED : 10 JUNE 2008

FILE NO/S: CIV 1604 of 2008

BETWEEN: TWINSIDE PTY LTD
First Plaintiff
RAYMOND ALLAN BRIDE
Second Plaintiff
AND
VENETIAN NOMINEES PTY LTD
Defendant

Catchwords:

Landlord and tenant - Relief against forfeiture - Relevance of history of late payment of rent - Turns on own facts

Equity - Injunctions - Interlocutory injunctions - Turns on own facts

Legislation:

Nil

Result:

Interlocutory injunction granted

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr D A Lenhoff
Second Plaintiff            :     Mr D A Lenhoff
Defendant:     Mr T O Coyle

Solicitors:

First Plaintiff                :     S E Kawalsky
Second Plaintiff            :     S E Kawalsky
Defendant:     Martella & Co

Case(s) referred to in judgment(s):

American Cyanamid Co v Ethicon Ltd [1975] AC 396.
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199.
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57.
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618.
Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471.
Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148.
Direct Food Supplies (Vic) Pty Ltd v DLV Pty Ltd [1975] VR 358.
Esther Investments Pty Ltd v Cherrywood Park Pty Ltd [1986] WAR 279.
Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670.
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49.
Greenwood Village Pty Ltd v Tom The Cheap (WA) Pty Ltd [1976] WAR 49.
Hayes v Gunbola (1986) 4 BPR 9247.
Hyman v Rose [1912] AC 623.
Jones v Dunkel (1959) 101 CLR 298.
Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC 459.
Love v Gemma Nominees Pty Ltd [1983 ‑ 1984] ANZ Conv R 68.
Madaffari v Labenai Nominees Pty Ltd [2002] WASC 67.
Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11.
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121.
Shiloh Spinners Ltd v Harding [1973] AC 691.
Switz Pty Ltd v Glowbind Pty Ltd [2000] NSWSC 222.
Todd v Novotny [2001] WASC 171.
Topseal Concrete Services Pty Ltd v Sika Australia Pty Ltd [2008] WASC 57.
Westbrook Holdings Pty Ltd v Roseramble Pty Ltd (1994) 13 WAR 273.
Wynsix Hotels (Oxford Street) Pty Ltd v Toomey [2004] NSWSC 236.

BEECH J:

Introduction

On 6 January 2006 the plaintiffs as lessees and the defendant as lessor entered into a lease of premises owned by the defendant at which the first plaintiff (Twinside) has, since about then, been conducting its business.
On 20 May 2008 the defendant re‑entered into possession of the leased premises, on the ground of non‑payment of rent by the plaintiffs.

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] WASC 110
Decision Date: 10 JUNE 2008

CaseChat Overview and Summary

In the case of Twinside Pty Ltd v Venetian Nominees Pty Ltd, the dispute centred on a landlord and tenant relationship, with Twinside seeking relief against forfeiture of a lease. The parties were before the court to determine whether Twinside was entitled to an interlocutory injunction preventing Venetian from evicting them from the premises. The central legal issue was whether Twinside had established a prima facie case, and if the balance of convenience favoured the grant of the injunction. The court was required to balance the potential injustice to Venetian if the injunction was granted and Twinside ultimately failed at trial, against the injustice to Twinside if the injunction was not granted and they succeeded at trial.

The court considered the principles set out in Beecham Group Ltd v Bristol Laboratories Pty Ltd, which required the court to examine whether Twinside had made out a prima facie case and whether the balance of convenience favoured the grant of the injunction. The court noted that the strength of the probability of success needed for an interlocutory injunction was dependent on the nature of the rights asserted and the practical consequences likely to flow from the orders sought. The court also considered the risk of injustice to both parties if the injunction was granted or not granted. The court was mindful that the apparent strength of Twinside's case diminished the balance of convenience towards making an order.

Ultimately, the court found that Twinside had made out a prima facie case and that the balance of convenience favoured the grant of the injunction. The court was satisfied that there was a sufficient likelihood of success on the merits to justify the preservation of the status quo pending the trial. The court also found that the practical consequences of granting the injunction were not overly prejudicial to Venetian, and that the risk of injustice to Twinside if the injunction was not granted outweighed the potential injustice to Venetian if the injunction was granted and Twinside ultimately failed at trial. The court therefore granted the interlocutory injunction, compelling Venetian to undo its re‑entry and permit Twinside back into possession of the premises.

The final orders of the court included the grant of an interlocutory injunction, preventing Venetian from evicting Twinside from the premises and compelling them to permit Twinside back into possession. This decision highlights the importance of balancing the potential injustice to both parties when considering the grant of an interlocutory injunction in landlord and tenant disputes.

Orders

Orders of the court

Interlocutory injunction granted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

These principles were further explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, [65] ‑ [71] (Gleeson CJ and Crennan J agreeing). Their Honours stated that the relevant principles are those stated in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, where the two main inquiries were said to be whether the plaintiff had made out a prima facie case and whether the balance of convenience favours the grant of the injunction. The phrase 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks: [65], [71]. The apparent statement by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396, 407 that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, there will be a serious question to be tried, is not to be followed. The governing consideration is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought. These principles make it clear that the various considerations identified by Mason ACJ in Castlemaine Tooheys are to be considered together. As the apparent strength of the applicant's case diminishes, the balance of convenience moves against the making of an order: Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49, 54 ‑ 55; Todd v Novotny [2001] WASC 171. The grant of an injunction involves balancing the injustice which might be suffered by the defendant if the injunction is granted and the plaintiff later fails at trial, against the injustice which might be suffered by the plaintiff if the injunction is not granted and the plaintiff later succeeds at trial: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670; Madaffari v Labenai Nominees Pty Ltd [2002] WASC 67 [14]. In some senses, the plaintiffs' application seeks interlocutory mandatory relief, in that it seeks an order compelling the defendant to undo its re‑entry and permit the plaintiffs back into possession of the premises. The principles relating to interlocutory mandatory injunctions were explained in Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471, 483 ‑ 484, and Films Rover International (679 ‑ 682). In some cases, it is said that an interlocutory mandatory injunction should be granted only if the court has a high degree of assurance that the plaintiff will succeed at trial. However, ultimately the question is as to the balance of the risk of injustice. In considering that balance the court must take into account the nature and consequences of the particular injunction sought.