STEPHEN MICHAEL LARKIN v MILCHAS INVESTMENTS PTY LTD [1989] NSWCA 130

STEPHEN MICHAEL LARKIN v MILCHAS INVESTMENTS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER J 13 June 1989

[1989] NSWCA 130

Meagher J In this matter the claimant, Dr Stephen Michael Larkin, seeks various orders staying a judgment which Young J gave on 8 June 1989.

The dispute between the parties is a vendor and purchaser dispute, Dr Larkin claiming to be the purchaser (although that seems to be in some slight doubt), the vendor being Milchas Investments Pty Limited, the opponent. His Honour Young J found against Dr Larkin, who in those proceedings was the cross-claimant.

The case Dr Larikin sought to make before his Honour was based (1) on contract, although Mr Coles, his counsel, has told me this morning that that was not considered the primary case of the purchaser; (2) on estoppel and Trade Practices Act. There is a caveat on the property lodged by Dr Larkin and his Honour ordered that the caveat be removed.

The property in question is listed for auction tomorrow 14 June. As Mr Grieve, senior counsel for the opponent, has pointed out to me, while in form this application is an application for stay, in substance it is really an application for an injunction to preserve Dr Larkin's position until the hearing of the appeal. I agree with that submission. That raises the question of whether there is an arguable point.

I shall not repeat the facts which are in evidence or any of the matters put to me this morning. Suffice it to say that whilst the allegation that there was a contract between the parties is a very bold submission, it is not quite so bold as to justify the description of being frivolous or obviously false. I am therefore against the submissions of Mr Grieve on that point.

Likewise, the estoppel point, while it seems to me to be exceedingly doubtful, is perhaps arguable, particularly in light of the extended area for the operation of the estoppel laid down by the High Court in Waltons Stores (Interstate) Ltd v Maher 164 CLR 387. Oh the third point (the Trade Practices point) I am unable to see any arguable point for that submission taken in isolation. In other words, I cannot see how it can conceivably be argued, if Dr Larikin lost both the contract and the estoppel point, how a misrepresentation would really generate a right to specific performance of a contract which did not exist. I do not see how on that basis of the Trade Practices Act it could justify the retention of the caveat. However, the upshot of all of that is at least in the first and second causes of action which I have described I do think the appellant has an arguable point. Perhaps barely an arguable point but nonetheless an arguable point.