WEILAND & MAD MURRAY'S Palm World Pty Ltd v Camacho - [2015] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
WEILAND & MAD MURRAY'S PALM WORLD PTY LTD v CAMACHO
[2015] SADC 135
Reasons for Decision of Her Honour Judge McIntyre
13 October 2015
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS
Application for injunction. Plaintiffs seek an injunction pending determination of the substantive proceedings restraining the defendant landlord from re-entering premises in reliance on a notice of termination and re-entry and from taking any steps to prevent the plaintiffs from occupying the premises and dealing with the property on those premises.
Held: Whilst there is a serious question to be tried, the plaintiffs have failed to establish that the balance of convenience weighs in favour of granting the injunction.
Landlord and Tenant Act 1936 , referred to.
American Cyanamid v Ethicon Ltd [1975] AC 396 per Lord Diplock @ 405; Australian Broadcasting Corporation v O'Neil (2006) 229 ALR 457; NWL Ltd v Woods [1979] 1 WLR 1294, considered.

WEILAND & MAD MURRAY'S PALM WORLD PTY LTD v CAMACHO
[2015] SADC 135
What is this matter about?

The defendant is the registered proprietor of land situated at 4 Railway Road, Seaford Meadows. It is not in dispute that there was an oral lease for a portion of that land with rental to be paid at the rate of $300 per week in cash to the defendant. There is a dispute as to the other terms of the lease and as to the parties to the lease. The defendant says that he entered into the lease with the first plaintiff. The first plaintiff says that the lease was with the second plaintiff.
On 17 September 2015 agents of the defendant attended at the leased portion of the Railway Road premises (“the premises”) and changed the gate locks. They placed a notice of termination and re-entry, an authority and a warrant to distrain upon the gates of the premises. The premises contain plants, particularly palm trees, garden equipment, office equipment, business records, a trailer and a truck.
The plaintiffs seek an injunction in the following terms pending determination of the substantive proceedings:
That until further order the defendant by himself or by his servants, agents or employees be restrained from:
Re-entering the portion of the land contained within Certificate of Title Register     Book Volume 5431 Folio 920 being the portion previously occupied by the plaintiffs or one of them (“the premises”) in reliance on a notice of termination and      re-entry dated 14 September 2015;
Taking any steps of any nature whatsoever to prevent the plaintiffs from occupying the premises in accordance with and on the basis of the terms of the previous    agreement for lease in reliance by the defendant on any alleged default by the       plaintiffs or one or other of them raised by the defendant in the notice of       termination and re-entry;
Taking any steps of any nature whatsoever to continue to implement any purported restraint previously exercised against the property of the plaintiffs or one or other         of them.
This is opposed by the defendant.
The substantive proceedings issued by the plaintiffs assert that the termination of the lease and the distraint of goods was unlawful. Damages are claimed in relation to those matters and in respect of goods and services that the second plaintiff is asserted to have supplied to the defendant.
Legal principles
The general principles governing the grant or refusal of an interlocutory injunction are well settled.
First the grant of an interlocutory injunction is a remedy that is both temporary and discretionary. In exercising this discretion, the court should consider all the relevant circumstances bearing in mind that the object of this equitable relief is to prevent irremedial prejudice arising pending the final resolution of the issues at trial. [1]
[1] American Cyanamid v Ethicon Ltd [1975] AC 396 per Lord Diplock @405
The applicant for an interlocutory injunction bears the onus of satisfying the court that it should be granted. The first matter to be established is whether there is a serious question to be tried or that there is a sufficient likelihood that the plaintiffs will be entitled to relief at trial.[2] To give a plaintiff standing to seek interlocutory injunctive relief the serious question to be tried must involve some legal right that attracts injunctive relief.
[2] Australian Broadcasting Corporation v O’Neil (2006) 229 ALR 457
In this case it is conceded that there are serious issues to be tried. This is a proper concession. I refer in this context to the outline of the plaintiffs’ submissions provided at the hearing on 8 October 2015 and the affidavit material generally.
The second matter for the court to decide is whether the balance of convenience weighs in favour of granting the injunction or not. This is a contentious issue in the circumstances of this matter. Issues such as irreparable injury, detriment and whether damages are an adequate remedy are subsumed under this general banner of the balance of convenience.[3]
[3] NWL Ltd v Woods [1979] 1 WLR 1294
Balance of convenience
The plaintiffs contend that the defendant will suffer no harm other than a loss of rent until trial. It is said that the plaintiffs will suffer serious consequences. Specifically it is said that the second plaintiff will suffer loss of its trading stock causing total extinguishment of its business and the total loss of goodwill, substantial loss in the value of plants which is difficult to quantify and exposure of the company to claims from persons whose goods have already been sold or for whom they are held on consignment. The financial position of the defendant to meet any claim for damages is said to be unknown.
The defendant says that if the injunction is granted that he would suffer not only a loss of rent but also a detriment in terms of the loss of his security for the amount he says is owing under the lease agreement. He says that the plaintiffs have made no offer to replace this security and that what is sought by the plaintiffs effectively enables them to continue their business and sell the security with no recompense to the defendant. Whilst the plaintiffs have given an undertaking as to damages the affidavit material reveals that the first plaintiff is a pensioner in receipt of Centrelink benefits and that the second plaintiff is a ten dollar company. Accordingly the defendant says that the undertaking provides no comfort to him.
Conclusion
Having carefully considered the affidavit material and the submissions of counsel, I do not consider that the plaintiffs have established that the balance of convenience weighs in favour of granting the injunction. Given the urgency of this matter I will not canvas my reasons for this conclusion in detail but my reasons can be summarised as follows:
·The plaintiffs effectively seek to continue their business from the premises. The defendant contends that this is a retail business operated from a site that is not approved by the council for retail purposes. Whilst the plaintiffs say that this is a wholesale premises this is not at all clear to me on the basis of the affidavit material which is equally consistent with a retail business being operated on those premises.
·The plaintiffs have offered no alternative security to the defendant.
·The undertaking as to damages offered by the plaintiffs is not, on the face of it, supported by any substance.
·The plaintiffs’ offer to pay $300 per week rent into court does not assist the defendant who will be incurring rates, taxes and expenses on the premises.
·The defendant has said that he will not stand in the way of a genuine claim to ownership of goods that have already been sold or are on consignment.
·The possible deterioration of the plants could be addressed by other means.
·Damages would be an adequate remedy on the basis of the information before me. Whilst the plaintiffs submitted that they are unaware of the means of the defendant to pay such damages it is not for the defendant to establish his means on this application but in any event I note that he at least owns the land that is the subject of the dispute.
I therefore dismiss the plaintiff’s interlocutory application for injunctive relief. I will hear the parties as to any further orders that I should make.