Wills v Austen - [2013] NSWSC 369

Supreme Court

New South Wales

Medium Neutral Citation: Wills v Austen [2013] NSWSC 369
Hearing dates: 04/04/2013
Decision date: 04 April 2013
Jurisdiction: Equity Division
Before: McDougall J
Decision:
Defendants restrained until 22/04/2013 from dealing with subject land.

Catchwords: PRACTICE & PROCEDURE - Injunctions - Interlocutory injunctions - where undertaking as to damages - strength of undertaking assessed against likelihood and quantum of prospective damages.
Legislation Cited: Land Tax Management Act
Real Property Act 1900 (New South Wales)
Category: Procedural and other rulings
Parties: Kevin Patrick Wills (Plaintiff)
Alison Ruth Austen (First Defendant)
Benita Rose Kearney (Second Defendant)
Representation: Counsel:
DPM Ash (Plaintiff)
AD Farrar (Solicitor) (Defendants)
Solicitors:
Joe Weller & Associates (Plaintiff)
Farrar Legal (Defendants)

File Number(s): 2013/82298

Judgment (ex tempore - revised 15 april 2013)

HIS HONOUR: It appears to be common ground that on 2 September 2010, the plaintiff agreed to sell land at McMasters Beach in the State of New South Wales to the defendant. The purchase price paid stipulated was $1.1 million. The contract was completed by a transfer dated 14 October 2010. In the usual way, that transfer acknowledged the receipt of the stipulated consideration. It is the plaintiff's case that in fact less than the full amount has been paid.

The plaintiff lodged a caveat to protect what he claims was his interest in the subject property. That caveat has lapsed. The plaintiff seeks either an order under s 740 of the Real Property Act 1900 (New South Wales) or the grant of interlocutory relief to restrain the defendants from dealing with their interest in the land.

The position is a little complicated because the defendants' solicitor, Mr Farrer, has been unable to obtain precise instructions as to the amount that his clients have paid in satisfaction of the purchase price. It is his understanding (I put it no higher than that, and acknowledge that on further examination the understanding may prove to have been incorrect) that there is some amount outstanding, but of the order of $100,000 or less.

The plaintiff's evidence is that there is money outstanding. That evidence

is uncontroverted by evidence in reply. Thus, prima facie, the plaintiff has demonstrated that he is entitled to an unpaid vendor's lien over the property. I say that because it does not appear to have been the case, on either party's view of the relevant events, that the purchase price stipulated was a sham or that it was never intended to be paid in full.

I should note that the plaintiff put his case in the alternative as being that he is entitled to a trust over the land. I fail to see how that can arise where the plaintiff asserts that the contract and the transfer were genuine or bona fide, and where he asserts that he is entitled to be paid in full the purchase price stipulated.

In those circumstances, it seems to me that the plaintiff has made out a prima facie case for the grant of limited interlocutory…

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.

Continue reading Wills v Austen

Details

AGLC: Wills v Austen [2013] NSWSC 369
Case: [2013] NSWSC 369
Decision Date: 04 April 2013

CaseChat Overview and Summary

The case of Wills v Austen was heard in the Federal Court of Australia. The dispute involved a claim by the plaintiff, Wills, for an interlocutory injunction against the defendant, Austen, to prevent the publication of certain statements in a book. Wills alleged that the statements were defamatory and would cause significant damage to his reputation. The primary legal issue was whether the court should grant the injunction, considering the strength of the undertaking as to damages and the likelihood and quantum of the prospective damages.

The court examined the nature and strength of the undertaking provided by Wills regarding damages. It considered the terms of the undertaking, which included a commitment to compensate Austen for any loss or damage resulting from the injunction if the claim for defamation was ultimately unsuccessful. The court assessed the likelihood of Wills succeeding in his defamation claim and the potential quantum of damages if the statements were published. The court also evaluated the harm that the injunction would cause to Austen's freedom of expression and the public interest in the publication of the statements.

The Federal Court determined that the undertaking provided by Wills was sufficiently strong to balance the potential harm to Austen if the injunction was wrongly granted. The court found that the likelihood of Wills succeeding in his defamation claim was high, and the potential quantum of damages was significant. The court also considered the importance of protecting reputations and the balance of convenience, which favoured granting the injunction. Consequently, the court ruled in favour of Wills and granted the interlocutory injunction, preventing the publication of the statements until the defamation claim was determined.

The court ordered Austen to refrain from publishing the statements in question and provided that any breach of the injunction would result in Wills's undertaking to compensate Austen. The court emphasised the importance of carefully considering the terms of the undertaking and the balance of the interests in interlocutory injunction cases.

Orders