Windrum v Rejilo Pty Limited

[1988] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll0 of 1988

B e t w e e n -

GRAHAM MELROSE WINDRUM

Applicant

and

REJILO PTY LIMITED

First Respondent

D.K. & J.A. HOLDINGS PTY

LIMITED

Second Respondent

Application for interim relief

MASON CJ

(In Chambers)

Windrum

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 SEPTEMBER 1988, AT 8.48 AM

Copyright in the High Court of Australia

SlTl/1/RB 1 16/9/88

MR P.R. GRAHAM, QC:  In this matter, if the Court pleases,

I appear with my learned friend, MR R.R.I. HARPER,

for the applicant. (instructed by Klinger Johnstone)

MR A.J. ENRIGHT: If the Court pleases, I appear for the

second respondent. (instructed by Hills, Solicitors)

MR GRAHAM:· Mr Biggins, I understand, appears for the first

respondent, Your Honour. I saw him downstairs and I

think he may have perceived that because I was robed

it was appropriate that we should robe, Your Honour.

Whether or not that has occasioned his delay, I do not

know.

HIS HONOUR: Well, we cannot wait for Mr Biggins.

MR GRAHAM: No. May I proceed, Your Honour?

HIS HONOUR:	Yes, by all means.
MR GRAHAM:	Your Honour, this is a summons dated - -
HIS HONOUR:	Well now, I have read the papers so you can

proceed immediately to endeavour to persuade me that

I ought to grant you interim relief.

MR GRAHAM: May I hand up two documents: one is entitled

"Statements of Principle"; another is entitled "Short

Chronology"?

HIS HONOUR:	Yes.
MR GRAHAM:	And may I seek Your Honour's leave, perhaps, to

file in Court one additional affidavit, an affidavit

of Graham Melros~ Windrum sworn 16 September 198~ this

morning?

HIS HONOUR:	Yes.
MR ENRIGHT:	Your Honour, before my friend starts, could I

have leave to file a copy affidavit in Court. It was

faxed in last night.	I have not got the
original. ....

HIS HONOUR:	Yes.
MR ENRIGHT:	Thank you, Your Honour.
MR GRAHAM:	If Your Honour pleases, we would see the correct principle that Your Honour should apply as being that
indicated by Mr Justice Deane in HE:INEMANN's case which
is on page 3 of  the notes, the statement of principle,
which was the principle applied by His Honour
Mr Justice Toohey last Tuesday in the case of the
NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED V
GENERAL TELEVISION CORPORATION PTY LIMITED. As we read

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His Honour's decision in HEINEMANN's case, the Court

has jurisdiction to grant positive injunctive relief

to an unsuccessful party in our circumstances - - - HIS HONOUR: Well, there is no question that the Court has jurisdiction to grant interim relief. The question

is what has to be shown in order to obtain that relief

and,as I understand it, Justice Deane and Justice Toohey

applied the principle that relief will only be granted

in exceptional circumstances; an exceptional case must

be shown.

MR GRAHAM:  Yes, Your Honour. And as Mr Justice Deane

indicated the prerequisites are a substantial prospect

of obtaining a grant of special leave; an arguable

case for the principal relief sought, in this instance,

specific performance for the contract of sale of a

property adjacent to that of the applicant; and thirdly,

that an appeal to the Court will be rendered nugatory

if the Court refused to grant interlocutory relief to

maintain the status quo.

HIS HONOUR:  Yes, but you have got to bear in mind that in

HEINEMANN, for example, His Honour refused interim
relief notwithstanding that the case had all the indicia
of being an arguable case and also all the indicia of a

case which would attract the grant of special leave.

MR GRAHAM:  But His Honour did, with respect, take into account

the fact that the relevant relief that was sought was

an injunction to restrain the publication of the book,

Spycatcher, between the date of the hearing before

His Honour and the date of the hearing of the application

for special leave or, in due course, the appeal to the

Court.

HIS HONOUR:	Yes.
MR GRAHAM:	It was not concerned with the use of other material

by Mr Wright because that was the subject of an undertaking

to the Court and His Honour took into account, firstly,

that the book, Spycatcher, had been extensively

published in the United States at the time of the

hearing before His Honour with some half a million, I

think, copies and, secondly, that in respect of that

limited period, in the circumstances an account of

profits would be appropriate relief for the wronged

Attorney-General if it were to transpire that he

succeeded.

His Honour specifically said - if I could refer

Your Honour to the passage in the judgment in HEINEMANN.

If Your Honour turns to the judgment in HEINEMANN at

page 614. I have made available a number of authorities

in loose-leaf form, Your Honour. I apologize for the

fact that they are on irregular pieces of paper. Does

Your Honour have that one?

HIS HONOUR:  Yes.

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MR GRAHAM:  At page 614, the right-hand column, the letter D, His Honour having stated the approach,said:

That having been said, the starting point of a consideration of the question whether I

should grant the interlocutory relief which

the applicant now seeks must be the facts that
the learned trial judge refused to grant the

applicant the relief which he sought in the

proceedings at first instance and that that

refusal of the learned trial judge has been

confirmed by the Court of Appeal.

And then this is the important sentence:

If the applicant were able to persuade me

that his appeal to this Court would effectively

be rendered nugatory if I refused to order a

stay or to grant other injunctive relief, I

would be inclined to the view that interlocutory

relief to maintain the status quo should be

granted.

HIS HONOUR:  But why would your case be rendered nugatory if

you were refused?

MR GRAHAM:  Your Honour, for this reason: we seek specific

performance of a contract for sale of land - - -

HIS HONOUR:  I know you do but you would still be entitled

to damages for breach of contract in the event that

you obtain special leave to appeal and you are able to

persuade the Court that the appeal ought to be allowed.

MR GRAHAM: That does beg the question, with respect,

Your Honour, as to whether or not damages is, in fact, an adequate remedy in circumstances where my client owns the property, "Gr,alyn Park" at Monkerai - - -

HIS HONOUR:  I realize that.

MR GRAHAM:  - - - and this is the adjacent property on to

which he wishes to extend his business activity.

HIS HONOUR:  I realise that but it seems to me that if you

are entitled to substantial relief, even though that

substantial relief may not equate to specific performance,

none the less it cannot be said that the subject-matter
of the proceedings is rendered nugatory if you are

refused interim relief and that results in the loss of

your claim for specific performance.

MR GRAHAM: Well, except for this, Your Honour: the principle

as to why specific performance is a remedy that is

granted by the Court, of course, is that it is in

circumstances where damages are an inadequate remedy

and in respect of contracts for the sale of land it is

an underlying principle that damages are,generally

speaking,an inadequate remedy and it is for that reason

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that the relief of specific performance is available

both to a vendor and also to a purchaser or rather,

putting it another way - - -

HIS HONOUR:  Yes, I follow that.

MR GRAHAM:  - - - a purchaser and also a vendor. So that,

Your Honour, we have the fundamental underlying

principle of relief of specific performance; secondly,

we have the fact that this particular parcel of land

has particular significance in that it is adjoining

property.

HIS HONOUR:  Yes, you need not repeat that. I am quite aware

of that.

MR GRAHAM:  And then, Your Honour, if one looks at the

two cases that we have under consideration:

HEINEMANN was in the unique circumstances where, in

effect, the damage had already been done in half of the

globe and it was only a limited period and - - -

HIS HONOUR:  I am not concerned with the facts of either

HEINEMANN or NATIONAL MUTUAL because they were quite

different cases involving publication of material

that might be said to be in the public interest.

MR GRAHAM: Well, Your Honour, in our respectful submission,

in so far as it is necessary for us to demonstrate

that, as His Honour stated it in HEINEMANN there, if

we were able to establish that the relief would

effectively be rendered nugatory, it is a

significant difference in our rights as to whether or

not we are able to get the land as opposed to damages.

HIS HONOUR: Yes, I follow that. Now, what about the point

at issue here? On the face of it, this is a case that

is unlikely to attract the attention of this Court.

MR GRAHAM:  With respect, not, Your Honour, for this reason:

firstly - can I put these propositions?

HIS HONOUR: Yes.
MR GRAHAM:	Firstly, the case is one which bristles with questions

of law of public importance which warrant the attention

of this Court; notably, what can constitute a sufficient

note or memorandum under section 54A of the CONVEYANCING

ACT? In the present case, the question was - - -

HIS HONOUR:  But you have got to get over a preliminary

hurdle before you come to that point.

MR GRAHAM:  I do. May I complete the submission, Your Honour -

I appreciate that. Secondly, what is necessary for

the doctrine of part performance to apply? Thirdly,
whether the principle of estoppel can avoid the

operation of section 54A of the CONVEYANCING ACT:

questions of competing equities and priority;

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questions of illegality and unclean hands. Now,

Your Honour, the case bristles with those, and then

the next submission I put is this - and they are issues

which really warrant the attention of this Court,

Your Honour. Secondly, unfortunately, the Court does

not have the benefit of a judgment of the trial judge

on the last two of those issues I have mentioned

although he certainly gave - - -

HIS HONOUR: Well, that certainly makes it an unsuitable

vehicle for the grant of special leave on those points.

MR GRAHAM: Although they were two points that he did not

decide - - -

HIS HONOUR:  Yes.

MR GRAHAM - - - the question of priorities, and I agree with

that, Your Honour.

HIS HONOUR: 

The Court does not take up cases in order to deal

with interesting questions of law when it lacks the
benefit of consideration of those questions by the
courts below.

MR GRAHAM: 

Yes, I accept that, Your Honour, but we do have a

case - where the critical issues that I have to get

over to make out my case against the first respondent

have all been the subject of decision. The ones that

remain undecided are the competing questions between

the alternative purchaser who entered into a contract

34 minutes after our contract, and ourselves, and I

accept that perhaps those issues are ones that would

have to go back to a lower court. But, Your Honour,

we then have the circumstance that even though the

trial judge decided those important questions of law,

the Court of Appeal declined to enter into a consideration
of any of them. Your Honour appreciates that the matter
was the subject of a series of orders for expedition

as the chronology I have just handed up indicates.

When the matter was given an expedited hearing,

it was given last Friday in the Court of Appeal, and

the Court of Appeal commenced the hearing by indicating

that it wished to hear counsel on, in effect, issue 8

on the notice of appeal, and 8 only, and if it was

minded to the view that 8 could be decided favourably

to the respondents, it would not take the court's time
to consider the other matters and at about, I guess,

11.30 am the court had finished its consideration of

that matter and indicated a view about it. It did hear

me for about another 15 minutes before it handed down

its oral judgment at about 3.30 in the afternoon and

then at 3.45, for about 35 minutes, Their Honours

delivered their oral judgments or reasons for judgment.

Now, in the result the questions which immediately

warrant the intervention of this Court are, firstly,

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whether the consideration by the Court of Appeal of

His Honour's judgment and of the evidence underlying

same constituted a gross injustice to the applicant.

It is a case perhaps not dissimilar to that in which

the Court granted special leave on 11 December 1987

which is noted in the Legal Reporter. It was a case

of BRAUND V HENNING, (1988) 1 Leg Rep SL 6, an appeal
from the Queensland Supreme Court, and it is noted

there - and it is handed up in one of those documents

that Your Honour has - under the heading "Justice":

This was a case in which counsel for the

applicant, Mr David Jackson QC, relied on the

Court's power to grant leave in a case

where the interests of the administration of

justice required reconsideration of the

judgment in the court below. He said he would

not suggest for a moment that it was a case

of overall importance or that the appropriate

tests were in doubt. He said 'It is simply

one where, in the Full Court, the way in which

the applicant's case was treated was not

in accordance with law and it was a substantial

departure, sufficiently substantial to merit

the Court's intervention.

HIS HONOUR:  What is the element of denial of natural justice

here, this manifestation of gross injustice, as you have

described it?

MR GRAHAM:  Your Honour, one matter is the question on which

the courts based their ultimate findings in their

judgments was a question of onus which had not been

indicated as relevant in the course of the argument

that proceeded before the court. There was, in the

court's reasons for judgment, a departure from the

agreed facts and there was a departure from the

accepted facts.

HIS HONOUR: What was the departure from the agreed facts?

When you say "agreed facts", do you mean that there

were agreed facts handed up - stated to the court?

MR GRAHAM:  May I demonstrate what I mean by handing up to

Your. Honour some highlighted passages out of the appeal

books. There are 10 pages in all? May I refer those

to Your Honour?

HIS HONOUR: Yes.

MR GRAHAM:  They are an extract - so that my learned friends

will know what I have referred Your Honour to - to

page 80 from the transcript in the evidence of

Mrs Oag, a witness whom the trial judge accepted;	an
extract from page 162 in the evidence of Mr Walker,
the vendor's solicitor; an extract from page 82 in
the evidence of Mrs Oag;	an extract from page 122

in the evidence of Mr Klinger; an extract from page 226

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of the exhibits section of the appeal book which sets forth

a conversation deposed to by Mr Klinger on 30 September

1987 - that is page 5 before Your Honour.	Can I refer
Your Honour to that?

HIS HONOUR:	Yes.
MR GRAHAM:	These events all occurred on 25 September 1987, Your Honour, and in the course of His Honour
Mr Justice Clarke's judgment which Mr Justice Samuels
concurred in at page 9 in the Court of Appeal at point 1,
His Honour said:

Whilst the court is obliged to reach its conclusions in the case of a contract

arising from oral evidence on the basis

of accepted facts, there is necessarily

likely to be some element of reconstruction

in the oral accounts given.

In so saying, Your Honour, Mr Justice Clarke had been

quoting,relevantly, the critical passage in Mr Klinger's

evidence from a place where that particular evidence

appeared in an affidavit of Mr Klinger sworn on
13 November 1987, some months after the events. However,

if Your Honour looks at page 5, as I have numbered them,

in the pages before Your Honour, Your Honour will see

that the critical words - and these are the words

that the point they decided turned on - were sworn to

as recently after the relevant events as 30 September

in a typed affidavit which had been typed up and was

sworn on that day. So that five days after the

conversation Mr Walker said to Mr Klinger, according

to Mr Klinger:

"Your contract must be with my agents by

5.00 pm and you should arrange for them

to phone me on receipt of the contract."

I then said words to the following effect,

"So that, if I don't hear from you and

provided that the contract is with your

agents by 5.00 pm then I can treat the

contract as having been exchanged?" He

replied "Yes".

And may I remind Your Honour that that is in the

context of an earlier conversation which His Honour

accepted at page 82 in the transcript which is 3 in

those notes before Your Honour.

HIS HONOUR:  Mr Graham, I have read the judgments in the Court

of Appeal and I appreciate the significance of the

evidence to which you have just referred me and it is

possible that if I were looking at this matter I may have

come to a different conclusion from the conclusion

reached by the primary judge and, for that matter, by

the Court of Appeal, but where does that get you?

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MR GRAHAM: It gets me this far, Your Honour - if I could go to

page 6?

HIS HONOUR:	Yes.
MR GRAHAM:	Your Honour will see that Mr Walker, again, within

a space - sorry, this is part of an affidavit he swore

on 12 October which is, what, some 19 days after the

event. He said in respect of paragraph 14 of

Mr Klinger's affidavit: "Agreed". And Your Honour

asked me where do I point to the agreed facts: he

swore:

Agreed, except I do not recollect Mr Klinger

referring to -

and Your Honour will see that what happened is that

Mr Walker said "Agreed" with three qualifications.

They were the only three factual -

HIS HONOUR:	Now, what is this document that is page 6 in the material that you have handed up?
MR GRAHAM:	It is the second page of an affidavit which was sworn by Mr Walker, the vendor's solicitor, which was
in response to the affidavit of Mr Klinger of 30 September
which contains the page I have numbered 5.
HIS HONOUR:	Is it referred to in the judgment of the primary judge or the judgments of the Court of Appeal, that is,
the document appearing at page 6?
MR GRAHAM:	The answer is specifically neither but may I explain

why? Because we tendered this document and it became
exhibit E. We tendered the affidavit and the response

and they were exhibit E. When the learned trial judge

considered the matter - does Your Honour have his

judgment?

HIS HONOUR: Yes, I have. Mr Graham, it may be possible to cut

this short I understand from the Registrar that the

special leave application could be listed for hearing

in the October sittings of the Court in Sydney.

If the application is listed in October what is the attitude of the respondents to your application for interim relief?

MR GRAHAM:  As we understand it, Your Honour, they have not

up until now put any evidence or any forceful submission

in respect to the continuation of interlocutory relief

although last Friday it was opposed and the Court of

Appeal granted it nevertheless.

HIS HONOUR:  Maybe what they have heard this morning may

encourage them to become forceful in their submissions

but what I want to know is, in view of the possibility -

when I say "the possibility" - certainty that this

matter can be listed for hearing as a special leave

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application in October, is the application for interim

relief resisted? After all, that is only three or

four weeks away.

MR GRAHAM:  We will be ready, of course, Your Honour, to

proceed - - -

HIS HONOUR:  Yes. Now, what do the respondents say?

MR P. BIGGINS (instructed by Walker Beer & Associates): Yes,

it is, Your Honour. It is resisted.

HIS HONOUR: Well, why would 28 days create any problem for

the respondents?

MR BIGGINS: Well, there is a difficulty in this respect,

Your Honour: there is - whilst I appreciate there is

an ongoing undertaking as to damages, the difficulty
that the first respondent has and, indeed, the second
respondent, is concern with the rate at which the

damages are accelerating. In terms of the principal

damage to the respondents, it is accelerating at

something in the region of four and a half thousand

a day plus all sorts of other damages flowing as well. either the supreme court or the Court of Appeal or

Your Honour in relation to means of the applicant in

these proceedings is an affidavit which states baldly,

"I have net assets in the region of $1 million".

HIS HONOUR: Well, it is more than that now.

MR GRAHAM:  Can I interrupt and indicate that I do not think

my learned friend has been served yet with the affidavit

which was sworn five minutes before we came to Court.

Dr Windrum has come down from Monkerai, Your Honour.

HIS HONOUR:  I see. It is almost two million. On the face

of it, even if damages increase by, say, 130,000, which

is to put a round figure on the daily damage that

you say is accruing, the evidence before the Court

indicates that the plaintiff would unquestionably be

able to meet it.

MR BIGGINS:  Yes, Your Honour. I would make two brief

submissions then only. The first one would be - and

not wishing to cavil with Your Honour's decision that
the matter, perhaps, ought to be fixed in October -
the first one is simply that the applicant has not made

out the sort of principles that are covered in the

BURGUNDY ROYALE case in showing - - -

HIS HONOUR:  I follow all the difficulty about that, Mr Biggins.

If there was going to be any appreciable delay I would think there would be a very serious question, indeed, about the applicant's entitlement to interim relief, but we are cutting that short by ensuring that the

application for special leave is heard in October.

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MR BIGGINS: Well, leaving that to one side, Your Honour, the

only submission that I would make in relation to the

continuation of the injunction:	I am instructed to
oppose it.

HIS HONOUR:	Yes, I follow that.
MR BIGGINS:	However, if Your Honour decides that it ought to

be granted then we would seek some security by way of

a payment in.

HIS HONOUR:  Yes. Well, I will ask Mr Graham in due course

about that. What about the second respondent?

MR ENRIGHT:  Your Honour, I understand the mood of the meeting

but the second respondent's attitude is that it objects
to the continuation of the injunction but I am not
instructed to argue the matter any further in the light

of what Your Honour said.

HIS HONOUR:	Yes, very well. Yes, Mr Graham.
MR GRAHAM:	Your Honour, the deposit of $150,000 is still held

by the agent. We are prepared to give an undertaking to

the Court not to seek its release, Your Honour.

HIS HONOUR: Until the litigation is disposed of?

MR GRAHAM: Until this special leave application has been disposed

of or if the injunction continues until we are released

from our undertaking as to damages.

HIS HONOUR:  Yes, very well. Now, I can indicate quite shortly

that although if the delay between the hearing of this

application and the hearing of the special leave

application were to be substantial I would have very

serious doubts about the applicant's entitlement to

interim relief, it seems to me that in the

circumstances that the application for special leave to

appeal will be listed for hearing in the next sittings

of the Court in Sydney in October, that I should grant

interim relief to the applicant.

Now, what is the order you actually seek, Mr Graham?

MR GRAHAM: It is in the sutmnons, Your Honour. It is as framed

in the sutmnons in paragraph 1, Your Honour. Essentially,

the restraint is that which has been in place for most of

the last year, Your Honour. I am instructed to give the

usual undertaking as to damages to both the first and

second-named respondents, Your Honour.

HIS HONOUR:	Very well.
MR ENRIGHT:	Your Honour, before you make the order, can I just ask for

one thing? My instructions are that the second respondent is

about to spend money, $20,000 or so, on fertilizer. That

has got to be done within the next month, and there are some

other ongoing expenses. Whilst I imagine that that may

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well be caught up with the undertaking as to damages,

I was just wondering whether it could be specified

that the undertaking extends to the continuing costs
incurred by the second respondent in management of the

property from now until settlement.

HIS HONOUR:  There is no difficulty about that, is there,

Mr Graham? The only problem is actually specifying

what is involved in that.

MR GRAHAM:  Your Honour, if, in fact, it were found that it

was proper, given their duty to mitigate their damage,

to go and voluntarily put superphosphate on now in

respect of a property they do not own and to which they

have not taken title, and if that were so, and if it
was ultimately found to be covered, it would be
covered, Your Honour, but we would not concede it

would be covered - - -

HIS HONOUR:  Yes. I think the difficulty is we cannot

take up time now specifying a possible liability on
the part of the applicant through its undertaking to

cover all sorts of specific expenditures that may

occur hereafter. But upon the applicant giving the

usual undertaking as to damages by its counsel, for special leave to appeal or until further order, the first-named respondent, by itself, its servants

and agents, be restrained from completing any contract

other than the applicant or his nominee.

for the sale of the property, "Kiaka", Monkerai,

MR GRAHAM: 

Your Honour framed that as "until the hearing of

the application". Would it be possible to include
"and until the judgment of the Court thereon",

Your Honour?

HIS HONOUR: 

What I might say is "pending the determination of the application for special leave to appeal" instead

of "pending the hearing of the application for special

leave to appeal", "or until further order the

first-named respondent, by itself, its servants and

agents be restrained" et cetera.

MR GRAHAM: 

Thank you, Your Honour. Would Your Honour reserve

the question of costs?

HIS HONOUR:  I shall order that the costs of the application

be costs in the application for special leave to appeal.

MR GRAHAM: If Your Honour pleases.

AT 9. 18 AM THE MATTER WAS ADJOURNED SINE DIE

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