Kieren Dowd (Hair Products Pty Ltd) v Elven [2022] NSWSC 1789

Supreme Court New South Wales

Medium Neutral Citation: Kieren Dowd (Hair Products Pty Ltd) v Elven [2022] NSWSC 1789 Hearing dates: 21 December 2022 Date of orders: 21 December 2022 Decision date: 21 December 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) The Notice of Motion filed on 15 December 2022 is dismissed. (2) I make no order as to costs. (3) The matter is stood over to the Registrar's List on 8 February 2023. (4) The defendants inform the plaintiff by email of the orders that I have made today. Catchwords: Restraining orders – leased premises – outstanding rent Category: Procedural rulings Parties: Kieren Dowd (Hair Products Pty Ltd) (Plaintiff) Wayne Richard Elven (First Defendant) Diane Elizabeth Elven (Second Defendant) Representation: Solicitors: N Mattock (First Defendant and mentioning for the Second Defendant) File Number(s): 2022/355520 Publication restriction: None

REVISED EX TEMPORE Judgment 1. This matter comes before me today as duty judge. Mr Mattock appears for the first and second defendants. There is no appearance by the plaintiff. I am satisfied that the plaintiff has been informed that the matter is in Court today. 2. The matter first came before Garling J on 24 November 2022 on an urgent ex-parte application by the plaintiff seeking orders restraining the defendant from taking any action to prevent Mr Dowd from attending at the plaintiff's business premises for any purposes associated with his business. 3. On 24 November 2022, his Honour made the orders sought by the plaintiff. Importantly, his Honour made an order in the following terms: "(5) Order until further order, or 9.12.22, whichever is the earlier, that the defendants and each of them by themselves, their servants or agents are restrained whether directly or indirectly, from preventing Mr Kieron Dowd or taking any action to prevent Mr Kieren Dowd from attending premises being property described in 3/SP71105 and known as Unit 3, 21 Groves Avenue, Mulgrave NSW 2756 for any purpose connected with and relating to any manufacturing or business purpose being undertaken at those premises by Hair Products Pty Ltd." 1. Shortly prior to the time when the matter was due to come before the Court, that is, on 9 December 2022, the plaintiff asked that the matter be adjourned further. The matter was then stood over to 15 December 2022 at which time it was further adjourned. 2. The defendants are the owners of property situated at Unit 3/21 Groves Avenue, Mulgrave. They leased the premises to the plaintiff pursuant to a lease commencing in May 2021 and set to expire in May 2026. The plaintiff carried on a business at these premises. As part of that business, the plaintiff undertook manufacturing of wax for the purposes of the business. Mr Dowd informed Garling J that if he was not granted access to the premises, there was a significant risk of fire because of the manufacturing process. His Honour then made the orders to which I have referred on an ex-parte basis. 3. Subsequent to that hearing, the defendants filed a notice of motion (on 15 December 2022) seeking a number of orders, including orders that the plaintiff pay to the first defendant amounts said to be outstanding in respect of rent. 4. The defendants then arranged for the matter to be listed today because of their uncertainty as to the effect of the principal order made by Garling J to which I have already referred. 5. Because of the adjournment of the further hearing of the matter, the defendants are uncertain whether the restraining order, as set out in order 5 made on 24 November 2022, remains in force. 6. It is not because his Honour said: "Order until further order, or 9 December 2022, whichever is the earlier …". 7. However, it is quite appropriate for the solicitors for the defendant to relist the matter to ensure that there is no existing restraining order in place and that is what they have done. To clarify any uncertainty, I confirm that the restraining order made on 24 November 2022 is no longer in place. 8. In those circumstances, there is no order preventing the defendants having access to their property in accordance with the law. I note also that as set out in the affidavit of the first defendant dated 14 December 2022, the plaintiff has now vacated the premises and wishes to hand the keys back. As I understand it, the only thing that prevented that was the uncertainty on the part of the parties as to whether there remained in place any restraining order. In the circumstances, the defendants remain free to do what they wish with the property subject to ordinary legal principles. 9. There remain two further issues to consider, being the motion filed by the defendant and disposal of the plaintiff's summons. 10. Mr Mattock informs me that, as there is now no restraining order in place and that the plaintiff has vacated the premises, the defendants will not be pursuing their motion. 11. There is then the question of the plaintiff's summons. The plaintiff has not complied with earlier orders for the service of evidence. There is no appearance by the plaintiff. On one view, the summons should simply be dismissed. However, Mr Mattock appropriately suggests that the matter be stood over to the Registrar's list so that questions of costs can be considered and that the plaintiff be given a further opportunity to attend before the Court and make any submission he may wish to make in respect of the costs associated with the summons. 12. The defendants should inform the plaintiff of the orders that I have made today by email and that the defendants inform the plaintiff that the matter is again before the Court on 8 February 2023, at which time the defendants may be seeking dismissal of the summons and costs. 13. In the circumstances, I make the following orders: 1. The Notice of Motion filed on 15 December 2022 is dismissed. 2. I make no order as to costs. 3. The matter is stood over to the Registrar's List on 8 February 2023. 4. The defendants inform the plaintiff by email of the orders that I have made today.