Private Health Group Pty Limited (ACN 085 398 116) v Epping Private Hospital Pty Limited (ACN 068 228 482) & Ors [1999] NSWSC 1007

New South Wales Supreme Court CITATION : Private Health Group Pty Limited (ACN 085 398 116) v Epping Private Hospital Pty Limited (ACN 068 228 482) & Ors [1999] NSWSC 1007 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 3827/99 HEARING DATE(S) : 6 September 1999 JUDGMENT DATE : 6 September 1999

Private Health Group Pty Limited (ACN 085 398 116) (Plaintiff) Epping Private Hospital Pty Limited (ACN 068 228 482) (First Defendant) PARTIES : Hathelasse Pty Limited (ACN 003 492 813) (Second Defendant) Doran Healthcare Pty Limited (ACN 062 802 626) (Third Defendant) Fodor Investments Pty Limited (ACN 005 437 114) (Fourth Defendant) JUDGMENT OF : Hamilton J

COUNSEL : J Campbell QC / A Lo Surdo (Plaintiff) AS Martin (Defendants) SOLICITORS : pappas, j. attorney (Plaintiff) Christopher C. Freeman & Co. (Defendants) CATCHWORDS : EQUITY [338] - Equitable Remedies - Injunctions - Interlocutory Injunctions - Balance of Convenience - Interlocutory Injunction granted for short limited period to permit preparation for final interlocutory hearing. DECISION : Interlocutory injunctive relief granted for 8 days.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J MONDAY, 6 SEPTEMBER 1999

3827/99 PRIVATE HEALTH GROUP PTY LIMITED (ACN 085 398 116) v EPPING PRIVATE HOSPITAL PTY LIMITED (ACN 068 228 482) & ORS

JUDGMENT His Honour: 1 During the weekend I granted an ex parte injunction in this matter up to and including today to prevent the retaking of possession of premises (''the premises'') on which a medical centre business is conducted at Neutral Bay. That business was the subject of one of four interdependent contracts for sale between the defendants and the plaintiff. The defendants claim that one of the four contracts has been validly terminated by reason of non-compliance with a notice to complete, that all the contracts are thereby at an end and that the defendants are therefore entitled to take possession of the premises. They, indeed, commenced to take possession of the premises physically late on Friday afternoon and continued to do so during Saturday, which led to the grant of the ex parte injunction that I have mentioned. 2 Mr A S Martin of counsel, who now appears for the defendants, declares himself ready for a fully contested interlocutory hearing this afternoon. Mr Campbell of Queen's Counsel, who now appears with Mr Lo Surdo for the plaintiff, says that he is not ready for such a hearing and asks for the extension of the injunction for a short finite period. Next Tuesday, 14 September, is suggested as being a suitable time by which both parties should be fully ready for a fully contested interlocutory hearing, if that should prove necessary. Mr Martin contends that one contract has clearly been terminated and that the others are therefore clearly at an end so that not even this short period of further relief should be given. 3 However, the matter does not appear to me to be so clear. Various arguments have been raised, including arguments that there was not readiness, willingness and ability on the part of the defendants to complete all four of the interdependent contracts, in that there had not been compliance with the terms of the contracts by the vendor at the time the notice to complete was given and expired. Mr Martin says this matters not, because lack of readiness or breach in relation to the other three contracts did not affect the defendants' right to terminate the contract for the sale of land, which is said to be the one in respect of which there was a clear right of termination. The situation, therefore has complexities. I do not think that it is immediately clear at all that there was a right to effect a termination which brought all of the contracts to an end, if there were breach or lack of readiness to complete in respect of one or more of them, quite apart from other aspects of this somewhat complicated matter which may be brought out if a short time for preparation is allowed. 4 Doubts are raised as to the plaintiff's financial viability, and this is put as a ground for noncontinuation of the injunction. I have granted the defendants leave to file in Court today a notice of motion seeking security for any undertaking as to damages that is accepted by the Court and also security for costs. I should put on public record that, when obtaining the ex parte injunction during the weekend, counsel properly and frankly told me that the plaintiff did not immediately have available finance to complete the contracts. It does not, of course, necessarily follow from that that the plaintiff is impecunious. 5 The question of the balance of convenience obviously arises. Just as the plaintiff is at present conducting the premises as a medical centre, the defendants or one of them did so prior to the plaintiff being let into possession under the relevant contract for sale, and that defendant would seek again to conduct upon the premises a medical centre if it regained possession. I think, bearing in mind the shortness of the adjournment that I propose to grant with covering injunctive relief, that what would be most highly inconvenient would be for possession of this centre to shift more often than necessary between the contesting bodies of doctors who seek possession of it. In those circumstances, I think that the best course is, against a continuing undertaking as to damages given on the plaintiff's part, to continue the existing injunction up to and including Tuesday, 14 September 1999. 6 I make the following orders. (1) I adjourn both the principal proceedings and the notice of motion which has been filed today to 14 September 1999 at 9.30 am before the Registrar. (2) Upon the plaintiff by its counsel giving to the Court the usual undertaking as to damages I continue up to and including 14 September 1999 the existing injunction. (3) I reserve the costs of today. (4) I direct that the plaintiff on or before 10 September 1999 file and serve any affidavits on which it intends to rely. (5) I direct that the defendants file any further affidavits on which they intend to rely on or before 10 September 1999 and any affidavits in answer to the plaintiff's material on or before 13 September 1999. (6) I appoint Thursday, 9 September 1999 for the return of subpoenas or notices to produce such subpoenas or notices to be served by noon on 8 September 1999. …oOo…