Lym International Pty Ltd v Chen [2006] NSWSC 1363

New South Wales Supreme Court

CITATION : Lym International Pty Ltd v Chen [2006] NSWSC 1363

HEARING DATE(S) : 1 December 2006

JUDGMENT DATE : 4 December 2006

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Interlocutory injunction granted.

CATCHWORDS : EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Appropriate balancing exercise.

CASES CITED : Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533

PARTIES : Lym International Pty Limited (P) Yu Po Chen (D)

FILE NUMBER(S) : SC 5533/06

COUNSEL : S A Wells (P) D R Pritchard (D)

SOLICITORS : Lazarus Tomko Lawyers (P) Middletons (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

MONDAY, 4 DECEMBER 2006

5533/06 LYM INTERNATIONAL PTY LIMITED v YU PO CHEN JUDGMENT 1 HIS HONOUR: In this matter I heard a contested interlocutory injunction application on Friday, 1 December 2006. The proceedings concern a property at Mona Vale on which there are being erected 15 units to be strata titled. The property is close to the beach. The projected sale price of the units when completed will be some $18 million. The units are close to completion and the process of obtaining registration of the strata plan is under way. 2 Late in the history of the building operations the property was sold by the plaintiff, which was the original owner and developer, to the defendant, who was at the time of the sale playing the role of project manager. The plaintiff's claim in the proceedings and in the interlocutory injunction application is based upon frauds allegedly committed by the defendant on the plaintiff in relation to that contract. 3 The summer season is almost upon us and, although this is a dull selling season in respect of much urban property, there seems little dispute that it may be a lively selling time for beachside properties. The plaintiff seeks to restrain the selling of any of the units off the plan or otherwise until these proceedings can be determined. 4 The proper approach to the determination of the interlocutory injunction application was most usefully set out by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535 - 6 as follows: "As I see it, the position is as follows. Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled: see, eg, Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 216; A v Hayden (No 1) (1984) 59 ALJR 1 at 4-5; 56 ALR 73 at 79. Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg, whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or whether the urgency of the matter renders it impracticable to give proper consideration to the question: see, eg, A v Hayden (No 1) (at 4; 78); Cohen v Peko-Wallsend (1986) 61 ALJR 57 at 59; 68 ALR 394 at 397. If the Court does decide the question of law the uncertainty is to that extent removed.