New South Wales Supreme Court CITATION : Voskuilen v Morisset Mega-Market Pty Ltd [2002] NSWSC 63 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1258/02 HEARING DATE(S) : 31 January 2002 JUDGMENT DATE : 31 January 2002 PARTIES : Harry Voskuilen (P) Morisset Mega-Market Pty Ltd (D) JUDGMENT OF : Young CJ in Eq COUNSEL : T Catanzariti (P) Glen Miller QC (D) SOLICITORS : McGillivray (P) David Landa Stewart (D) CATCHWORDS : EQUITY [342]- Injunction- Ex parte application- The duty of candour when applying for an ex parte injunction applies equally to litigants in person. REAL PROPERTY [463]- Licences- Termination- Right to use stall in market- Whether summarily terminable. LEGISLATION CITED : Copyright Act 1968 (Cth), s 202 Trade Practices Act 1974 (Cth), s 4E, s 46 Alonso v Leichhardt MC (1975) 1 BPR 9368 Australian Blue Metal Ltd v Hughes [1963] AC 74 CASES CITED : Chaka Holdings Pty Ltd v Sunsim Pty Ltd (1987) 10 BPR 18171 Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337 Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 DECISION : See paras 27 and 28. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION 1258 of 2002 YOUNG CJ in EQ THURSDAY 31 JANUARY 2002 VOSKUILEN v MORISSET MEGA-MARKET PTY LTD Judgment 1 His Honour: This is an application to continue an interlocutory injunction which was initially granted during vacation. 2 The plaintiff is a person who has operated a series of stalls at a weekend market conducted by the defendant at Morisset. The defendant trades as the Morisset Mega-Market. The plaintiff has for at least a couple of months used stalls K256-259, from which he has sold trinkets, sporting memorabilia, oil paintings and things of that ilk. 3 On 20 January 2002 it was made quite clear to the plaintiff that he was no longer welcome as a stallholder at the market. There was some correspondence between the defendant and the plaintiff's solicitor, Mr McGillivray, and it was indicated on 23 January by the defendant that it would permit the plaintiff to remove his fittings and fixtures to 25 January 2002 or, should he choose not to do that, the defendant would remove and store the fittings, fixtures and stock at his cost. 4 The letter continued: "Should he still intend to seek an injunction to prevent us from doing this we ask that you advise us of the basis on which the injunction will be sought and to give us notice as there is no basis for the injunction to be sought ex parte. If an injunction is nevertheless sought ex parte we trust that you will tender this facsimile to the Court. If not we reserve our right to tender it on the question of costs and will be looking to your client for substantial damages for not being able to let the space to other stallholders." 5 What then appears to have happened is that the plaintiff personally moved the Vacation Judge on 25 January 2002 and the Judge ordered that upon the plaintiff giving in person the usually undertaking as to damages the defendant was restrained until further order from preventing the plaintiff from occupying and trading out of those market stalls. 6 The matter was brought back before the Equity Duty Judge at the beginning of term and by consent continued to today. 7 Today the plaintiff seeks continuation of the injunction on a number of bases. The defendant submitted that there is absolutely no basis for granting any injunction and, in any event, the initial injunction should never have been granted because there is a duty of candour on anyone seeking an injunction in this Court to give to the judge approached to grant an ex parte injunction all the necessary information, including information against the applicant's interest. 8 The material would tend to suggest that the Vacation Judge was not informed that there had been correspondence and that the defendant's solicitor expected to receive notice of any application, and there is nothing in the court file to suggest that that letter was tendered before the Vacation Judge. 9 The answer that has been given to the submission that that fact alone should mean the injunction goes, was that the plaintiff himself applied for the injunction and not the solicitor, and it may be, indeed, that the plaintiff applied without the knowledge of the solicitor. It is further said that it may well be that the plaintiff personally had never read cases like Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681, where the High Court laid it down that where the duty of candour has not been fulfilled the defendant is ex debito justitiae entitled to have it discharged. 10 In my view, the mere fact that a litigant in person applies for an injunction, and may well be ignorant of what the law is concerning his or her duty of candour, does not affect the defendant's rights and on the material before me the injunction really should go for that reason alone. 11 However, I can also deal with the matter on the merits. The first matter that one has to consider is whether the plaintiff has a prima facie case. That requires looking at what the plaintiff's property is, and what the plaintiff's legal and equitable rights are. 12 It is acknowledged on both sides that what the plaintiff had was some form of contractual licence. The evidence tends to suggest that a company, now in liquidation, which was at least partly controlled by the plaintiff's son, had an arrangement with the defendant, and that when that company ceased trading the plaintiff became involved with the stalls on the basis, as he says, that there was no enforceable agreement that would have involved his stalls in any way, and the arrangements were continued on a weekly basis. 13 He says in para 10 of one of his affidavits of 25 January 2002 that when the company went into liquidation in June 2001: " … from this time I commenced receiving invoices in my name and continued to pay on a week to week basis and this was accepted and I was never asked to enter into any other arrangement." 14 None of these invoices were ever put in evidence. Accordingly, the contract that there appears to be between the plaintiff and the defendant was that the plaintiff would have a licence to occupy certain stalls in the defendant's market on a week to week basis. Unless one can imply further terms into the arrangement, there would be no obligation on the plaintiff to continue to come back to the market week by week and so preserve the defendant's goodwill in its market, nor would there be any obligation on the defendant to allow the plaintiff to come back week after week. 15 However, counsel for the plaintiff says that when one looks at all the circumstances, including that there were fittings and fixtures left permanently up in the market space, that everyone knew that orders were being taken from one week which could be fulfilled in another week, there must be an implied term that the licence would not be revoked, at least without reasonable notice. 16 It is said that this flows from cases such as Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337. I am not at all sure that that is so because the consequence of the implied term would be that the plaintiff also would be required not to quit without reasonable notice, and I am not at all sure whether that mutual covenant is one that should be implied at all. 17 However, the law as laid down by the Privy Council on appeal from New South Wales in Australian Blue Metal Ltd v Hughes [1963] AC 74, makes it quite clear that where one has a contractual licence there must be a period of reasonable notice implied if it is necessary for the licensee to have a run down period for its business, or to remove its fixtures. Alternatively, there is a principle of equity in which equity allows a period of grace on terms for the protection of the party who might otherwise suffer undue hardship from the sudden termination of a licence (see Lord Devlin at pp 101-102). 18 The legal or equitable right referred to in Australian Blue Metal v Hughes would seem to me to be applicable in the instant case. However, that does not necessarily permit the plaintiff to trade and would not support the claim in the summons that the plaintiff be permitted to go back into occupation and use the stalls. All it would do is cover the plaintiff in removing his fittings and fixtures and making provision for customers whose orders had been placed but not received or paid for. 19 I cannot see any other right that the plaintiff has with respect to the actual licence. Further, the defendant, both by the letter of 23 January 2002 and by its counsel today in court has indicated that it would permit the fittings and fixture to be removed or, alternatively, as it said in its letter, disassemble the stand itself. It also undertook to provide notice as to where the plaintiff's customers could contact him with respect to existing orders. Thus, there is no basis either in the licence or in the equitable and legal principles to which I have referred which could support the rights claimed by the plaintiff. 20 The plaintiff's counsel, however, relies on two other matters. Before dealing with those I should note the submission that equity has jurisdiction to intervene to protect revocable licences. The authority cited for that proposition was my decision in Chaka Holdings Pty Ltd v Sunsim Pty Ltd (1987) 10 BPR 18171. However, that was really not authority for the proposition at all. It is a case dealing with the relief against forfeiture of licences. 21 The principles under which equity intervenes have not been fully developed, but there is no doubt at all that equity does intervene in proper cases to restrain wrongful revocation of contractual licences. However, it only does so when damages are an inadequate remedy. This almost always means that the case must contain some special factor which means that damages are not an adequate remedy. Thus, there are cases like Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 where the licence to enter was associated with a business contract, or Alonso v Leichhardt MC (1975) 1 BPR 9368 where a town hall had been booked for a public meeting for which extensive notice had been given and untold hardship would be caused if the meeting could not be held. 22 There seems to be no corresponding factor in the instant case which would activate equity's jurisdiction, but that may be a matter of discretion. 23 The other two points I can deal with relatively quickly, but before doing so I should note that a lot of the evidence appears to have been prepared by the plaintiff in person and so, legally speaking, goes into a lot of immaterial detail as to why it may have been that the defendant wished to disassociate itself from the plaintiff. The defendant suggested that it did not like the plaintiff's smoking and being abusive to management. The plaintiff said that the real reason was that he was trying to organise a stallholders' association and the defendant just would not tolerate this. 24 However, if the licence can be revoked without giving a reason it is just completely immaterial what the commercial reasons may have been on one side or the other. 25 The other two grounds were, first, that s 202 of the Copyright Act 1968 (Commonwealth) showed that there had been a groundless threat of legal proceedings and the court could grant an injunction under that section. However, assuming that right exists, and assuming the facts support it, that would not justify the court in making a mandatory injunction that the plaintiff go back into occupation of a stall where his licence had been terminated. 26 The remaining argument is that there was an abuse of market power under s 46 of the Trade Practices Act 1974 (Commonwealth). Forgetting about any jurisdictional problems there may be in this court dealing with a complaint about s 46, the abuse of market power does involve the court having to establish what the market is. Market, of course, in s 46 does not mean the Morisset Mega-Market. Section 4E of the Trade Practices Act, and the cases that have been decided under it, make it quite clear that one must consider the economics of the buying and selling of the commodities that are taking place. Even though the evidence suggests that the present is one of the bigger markets, in the lay sense, between Sydney and Newcastle, there is just not the evidence to suggest that the defendant has the economic power to prevent trade, in the sorts of commodities that the plaintiff has been dealing with, in even the geographical area concerned, let alone the wider Sydney/Newcastle conurbation. 27 It follows, in my view, that there is just insufficient material for me to say that there is an arguable case and, accordingly, I need not consider the other aspects that usually arise in interlocutory injunction cases, namely, whether damages are an adequate remedy, or the balance of convenience. 28 It further follows that the injunction previously granted must be dissolved and the plaintiff pay the costs of the interlocutory hearing. I stand over the suit to 12 March 2002 before the Registrar at 9.30 am. ***************************** Last Modified: 02/20/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.