West Beach Trust v Profile Events Pty Ltd - [2008] SASC 221

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
WEST BEACH TRUST v PROFILE EVENTS PTY LTD
[2008] SASC 221
Judgment of The Honourable Justice White
11 August 2008
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS
Appeal against refusal by District Court Judge to discharge interlocutory injunction - whether Court had jurisdiction to determine application to discharge injunction on the ground that the original order was wrongly made - whether error affecting original grant of injunction may only ever be corrected on appeal - where applicant relies upon detriment suffered as well as error in granting injunction - where no undertaking as to damages has been given - whether injunction is a mandatory injunction against the Crown.
Held: Appeal allowed. District Court Judge had jurisdiction to determine application on its merits - application remitted to District Court - not necessary to determine other issues.
Magistrates Court Act 1991 (SA) s 19; Crown Proceedings Act 1992 (SA) s 7; District Court Act 1991 (SA) s 43; Supreme Court Civil Rules 2006 (SA) r 292, referred to.
Commissioner of Police v Channel Seven Adelaide Pty Ltd [2008] SASC 164, applied.
BP Chemicals ANZ Pty Ltd v Manildra Starches Pty Ltd [1997] FCA 1189, distinguished.
Profile Events Pty Ltd v West Beach Trust [2008] SADC 30, discussed.
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Metropolitan Petar v Mitreski [2008] NSWSC 243; Butt v Butt [1987] WLR 1351; Woods v Sheriff of Queensland (1895) QLJ 163; Air Express Pty Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249, considered.

WEST BEACH TRUST v PROFILE EVENTS PTY LTD
[2008] SASC 221
Magistrates Appeal

WHITE J. The West Beach Trust (“the Trust”) appeals against the refusal by a District Court judge to discharge an interlocutory injunction.[1]
[1] Profile Events Pty Ltd v West Beach Trust [2008] SADC 30.
Background Circumstances
The Trust is the owner of certain premises at West Beach. Since December 2001 the plaintiff (the respondent to the appeal) has conducted a function centre business on a portion of those premises. The parties have not entered into a formal lease agreement for the plaintiff’s occupation as they have been in dispute about the terms of a proposed lease. The plaintiff asserts, and the Trust accepts, that it is in possession of the premises under an equitable lease.
By notice dated 5 October 2004 the Trust gave some form of notice of termination of lease. The plaintiff disputed the right of the Trust to terminate the lease. In November 2004 it instituted proceedings in the Magistrates Court seeking, amongst other things, declarations as to its interest as lessee of the premises and “an order restraining the defendant from taking possession of the premises until further order”.
The plaintiff’s application for an interlocutory injunction was heard by the former Chief Magistrate on 7 December…

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] SASC 221
Decision Date: 11 August 2008

CaseChat Overview and Summary

West Beach Trust filed an appeal against the District Court's refusal to discharge an interlocutory injunction. Profile Events Pty Ltd was the respondent. The injunction was initially granted to the Trust to prevent Profile Events from entering into an agreement with another party. The Trust sought to discharge the injunction on the grounds that it was wrongly made and that it had suffered detriment as a result of the injunction. The District Court refused to discharge the injunction, but varied it to require Profile Events to make increased payments of rent. The Trust appealed to the Supreme Court.

The legal issues before the court were whether the District Court had jurisdiction to determine the application to discharge the injunction on the merits, whether an error affecting the original grant of the injunction could only be corrected on appeal, and whether the Trust's reliance on the detriment it suffered as well as the error in granting the injunction was sufficient to warrant the discharge of the injunction. The court also considered whether the Trust's failure to provide an undertaking as to damages was a relevant factor in deciding whether to discharge the injunction.

The court held that the District Court did have jurisdiction to determine the application to discharge the injunction on the merits. The court noted that the District Court Judge had considered the Trust's argument that the Crown Proceedings Act 1992 precluded the grant of a mandatory injunction against the Crown, but had rejected it on the basis that it was an appeal point. The court also noted that the Trust had not provided an undertaking as to damages at the time the injunction was granted, but that this was a matter for appeal rather than for the District Court to consider. The court held that the Trust's reliance on the detriment it had suffered as well as the error in granting the injunction was sufficient to warrant the discharge of the injunction, and that the failure to provide an undertaking as to damages was not a relevant factor in deciding whether to discharge the injunction. The court allowed the appeal and remitted the matter to the District Court for further consideration.

The court made no orders as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

Consequently Mr Segal, relying upon what the Trust’s counsel had said, addressed, in opposition to the application for the discharge of the injunction, only the submission of the Trust with respect to s 72 of the CPA. While he did address some of the issues which the Trust had raised in relation to the absence of an undertaking as to damages, this was in relation to the Trust’s alternative application for variation of the injunction orders. The Judge’s Decision The Judge refused to dissolve the injunction but did vary it so as to require the plaintiff to make increased payments of rent. No appeal is brought against the order of variation. The Judge cannot have understood the Trust to have been modifying the basis upon which it sought the dissolution of the injunction as her Honour dealt with the application as though it had been made on a twofold basis originally outlined by counsel. That is apparent from the Judge’s summary of the Trust’s claim for dissolution:The defendant argues for the discharge of the injunction on the basis that s7 of the Crown Proceedings Act 1992 provides that a mandatory injunction cannot be granted against the Crown. It is conceded that this matter was not raised before the Magistrate granting the injunction. It is said that the effect of the injunction is twofold. First it is prohibitory and second it is mandatory in that paragraph 2 compels the defendant to accept the plaintiff as a tenant. The second basis of the application is that the plaintiff has not given an undertaking as to damages and accordingly, it is said that I have discretion to dissolve the injunction.[4][4] [2008] SADC 30 at [26]. The Judge’s understanding of the matter is also apparent from her reasons for refusing to discharge the injunction.Discharge of InjunctionI agree with the plaintiff’s contention that the defendant’s argument in respect to the Crown Proceedings Act 1992 is, in essence, an appeal point that I have no jurisdiction to deal with. If the defendant wishes to pursue this issue then it must do so elsewhere.It is unusual that an undertaking as to damages was not required at the time the injunction was granted. It does appear however that the learned Chief Magistrate considered this issue. He has indicated in his reasons for decision of 7 December 2004 that there was an inability on the part of the plaintiff’s counsel to give an undertaking. Again, this is a matter that would be the subject of an appeal rather than a matter for this Court.Accordingly, I refuse the defendant’s application to discharge the injunction[5].[5] Ibid at [35] – [37].Decision on Appeal The Trust is exercising the right of appeal bestowed by s 43 of the District Court Act 1991 (SA). The appeal does not require permission and is to be by way of re-hearing.[6] The Court is to determine the appeal as the justice of the case requires.[7] As I indicated in Commissioner of Police v Channel Seven Adelaide Pty Ltd,[8] I consider the appeal to be a re-hearing on the documents considered at first instance but with the Court having a power to receive further evidence. The Court is to consider whether the decision at first instance ought to be affirmed or overturned in the light of the material before the Court at the time it hears the appeal.[6] Supreme Court Civil Rules 2006, r 292(1).[7] Rule 292(2), 292(3)(b).[8] [2008] SASC 164 at [12].

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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