WALL and ORS v DAMICO INVESTMENTS PTY LTD and ANOR [1994] NSWCA 335

WALL and ORS v DAMICO INVESTMENTS PTY LTD and ANOR

THE SUPREME COURT OF NEW SOUTH WALES APPEAL

HANDLEY, SHELLER AND COLE JJA 21 September 1994

[1994] NSWCA 335

Handley JA The claimants have applied urgently on notice for an interim injunction pending the hearing of an appeal from a decision of Brownie J given about 10 o'clock this morning in which his Honour declined to restrain an auction sale of a country property near Narrabri known as "Woolangabba" which was scheduled to commence at 11 o'clock. The decision of Brownie J was interlocutory and the claimants only have an appeal to this Court by leave. The matter has been presented to the Court largely orally through senior counsel for the claimants and the opponents in view of the urgency of the application.

The Court is informed that Brownie J declined to grant an interlocutory injunction because of the construction which he gave to cl11 and cl12 of the Deed of Trust in question.

The Court is of the preliminary view that the construction which his Honour adopted does not really displace the equity of the claimants to prevent a significant change in the composition of the assets of the trust

pending the hearing of a suit for specific performance of an option which if granted, would remove the alleged vendors from the trust altogether on payment of their contractual entitlements under the exercise of the option. In these circumstances the Court considers that it is appropriate to grant leave to appeal and to grant an injunction to restrain the intending vendor from proceeding to auction the property.

The Court has already granted a short injunction to defer the commencement of the auction from 11 am to 11.30am. It now will grant an order until the hearing of the appeal or the further order of the Court restraining PB & AT Wall Pty Ltd by itself, its servants and agents from auctioning or selling the property "Woolangabba'" by public auction.