Newcastle Bowling Club v Newcastle City Bowling Club [2002] NSWSC 320

New South Wales Supreme Court

CITATION : Newcastle Bowling Club v Newcastle City Bowling Club [2002] NSWSC 320 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3583/01 HEARING DATE(S) : 12/04/02 JUDGMENT DATE : 12 April 2002

Newcastle Bowling Club (In Liquidation) - Plaintiff PARTIES : Newcastle City Bowling Club Ltd - First Defendant Aabadex General Pty Ltd - Second Defendant JUDGMENT OF : Barrett J

COUNSEL : Mr D.A. Allen - Plaintiff Mr R.J.A. Sergi - Defendants SOLICITORS : Catalyst Partners - Plaintiff Mason Lawyers - Defendants CATCHWORDS : EQUITY - injunctions - injunction to preserve subject matter of appeal - subject matter in clear jeopardy if injunction continued - balance of convenience favours withholding of further injunction CASES CITED : Archer v Archer [1999] NSWCA 286 Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110 DECISION : Application refused

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

FRIDAY 12 APRIL 2002

3583/01 - NEWCASTLE BOWLING CLUB v NEWCASTLE CITY BOWLING CLUB

JUDGMENT

1 This application follows in the wake of a decision of Brownie AJ on 6 February 2002 concerning entitlement to a perpetual lease of Crown Land at Newcastle, being the site of a bowling club. His Honour made a declaration that the plaintiff is the registered proprietor of the perpetual leasehold and that the first defendant has no entitlement to occupy the buildings erected on the property. 2 The first defendant has taken steps to appeal. To be more precise, it has filed a holding summons but has not yet filed a summons for appeal. No affidavit in support has been filed. 3 There is in place an order made ex parte on 28 February and continued on 2 April restraining the plaintiff from transferring, disposing of, mortgaging (or increasing any mortgage liability), encumbering, entering into contracts in relation to or dealing with, in any manner whatsoever, the perpetual leasehold. The defendants seek to continue those restraints. The plaintiff opposes such continuation. 4 The plaintiff is in liquidation and the liquidator, in the due course of his administration, wishes to proceed to sell the leasehold property. 5 An added dimension comes from the fact that the Department of Land and Water Conservation, being the department responsible for the administration of the lease on behalf of the Crown, has raised with the liquidator of the plaintiff concerns it has about continuing departures from the terms of the lease. It appears that the lease terms restrict the use of the land to that of a bowling club and that, in the view the Department takes, it is now being used instead as a trading club, without bowling as the principal function. 6 In those circumstances the Department notified the liquidator of the plaintiff, by letter dated 25 February 2002, that the liquidator would be given three months to re-establish the correct use of the site as a bowling club. The letter concluded: "If at the end of May you are unsuccessful, the Department will then have to make serious decisions about the future use of the site." 7 There is evidence of a conversation between the liquidator's representative and an officer of the Department subsequently in which the representative enquired what would happen if reestablishment of the correct use could not be achieved by the end of May. The reported response was: "We will probably cancel the lease and no person will be able to trade at the property." 8 The defendants base their claim for continuation of the injunction on the pendency of the appeal. The decision of the Court of Appeal in Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110 is referred to as the source of relevant principles, particularly the statement of the then President, Kirby P, at page 117 quoted at paragraph 99 of the decision in Archer v Archer [1999] NSWCA 286. The relevant passage is as follows: "Where, as here, there is an appeal as of right to this Court, which the appellant has exercised, where no more relief is sought than to preserve the status quo pending the outcome of the appeal, where the appeal appears to raise an arguable point, where no special prejudice is alleged, where the Court could deal with the questions promptly and where the failure to give relief may involve serious (and arguably irreversible) damage to the appellant and loss of valuable rights, the balance of convenience favours the issue of an injunction upon appropriate conditions." 9 I was also referred to the observations of Priestley JA, where the arguable point aspect of the President's passage was described in the words, "at least greater than frivolous or trivial". 10 It is difficult for me to come fully to grips with the prospects on appeal because there is no fully formulated or articulated appeal document. There is, at best, a statement by the applicant's solicitor who says, in his affidavit of 28 March, that he has formed the view that five grounds of appeal may be available. He goes on to describe them briefly. Mr Allen, counsel for the plaintiff, has put it to me that all of those matters are of a uniformly weak kind. I must say that I think there is considerable substance in that view. Added to that, there is the point that Brownie AJ himself said when giving judgment: "It seems to me that the plaintiff has made out its case and has indeed done so quite comfortably."