Buildx Construction Building Group Pty Ltd v Perpetual Trustee Company Ltd [2007] NSWSC 1282

New South Wales Supreme Court

CITATION : Buildx Construction Building Group Pty Ltd v Perpetual Trustee Company Ltd [2007] NSWSC 1282

HEARING DATE(S) : 29 & 30 October 2007

JUDGMENT DATE : 30 October 2007

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Application for interlocutory injunction refused and proceedings dismissed.

CATCHWORDS : EQUITY [333] – Equitable remedies – Injunctions – Interlocutory injunctions – Serious question to be tried – Generally - Serious question not established.

Buildx Construction Building Group Pty Ltd (P) PARTIES : Perpetual Trustee Company Limited (D1) Challenger Managed Investments Limited (D2)

FILE NUMBER(S) : SC 5264/07

COUNSEL : I Maarmari, Director (with leave) (P) D Gasic, Solicitor (Ds)

SOLICITORS : I Maamari, Director (with leave) (P) Deacons (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 30 OCTOBER 2007

5264/07 BUILDX CONSTRUCTIONS & BUILDING GROUP PTY LTD v PERPETUAL TRUSTEE COMPANY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: This is an application for an injunction to restrain an auction sale of a commercial property situated at 160 - 162 Haldon Street Lakemba. The auction is listed for today at 10.30 am and is seventh in the list of properties to be auctioned. In the absence of objection, I have given Mr Maamari, a director, leave to appear on behalf of the plaintiff, although not all the formal requirements have been fulfilled. 2 The material laid before the Court from both sides is very thin. I shall set out first the limited matters which are admitted or proved by evidence. 3 It is common ground that judgment for possession of the property was obtained by the defendants on 27 March 2007 and that possession of the property was subsequently obtained by the defendants under a writ of possession issued pursuant to that judgment. On 19 September 2007 Kheir and Associates, who were then solicitors for the plaintiff, wrote to Anthony Sunman, the then solicitor for the defendants, and to an officer of the defendant itself, advising that a contract for sale of the property had been entered into by the plaintiff. There is in evidence a copy of the front page of the contract. The purchasers under the contract are Sarah Maamari and Malakeh Maamari. The price is $2,200,000. The deposit is stipulated as $55,000, leaving a balance of $2,145,000. There is in evidence a letter from the Arab Bank Australia to Malakeh and Sarah Maamari. It is stated to be an indicative letter of offer to finance the purchase and is expressed to be subject to the issue of a formal offer. It offers a loan of $1,520,000 towards the purchase of the property. There is also in evidence a development consent of Canterbury City Council of 25 October 2007 issued in favour of the plaintiff for an arcade development on the property. 4 In addition to the matters of which there is actual evidence, Mr Maamari informs the Court that the purchasers under the contract are two of his children who are about 20 years of age. It is said that finance would be available for the contract to be completed within about two weeks, although the only documentation concerning the proposed loan is the indicative letter of offer of 19 September 2007 to which I have already adverted. Mr Maamari has further informed me that he became aware of the proposed sale at about the beginning of October. 5 Mr Maamari has also informed me that he instructed Kheir and Associates about a fortnight ago to make an injunction application, but the Court was not approached until Mr Maamari himself last evening sought the return of the present summons on short notice. He has also stated that he paid some $5,000 to Mr Kheir to deal with the matter and has been let down by Mr Kheir in his attention to the matter. It would appear from the form of the documents that the solicitor had some part in drafting the form of the summons and the perfunctory affidavit Mr Maamari has affirmed. 6 I have received no further assistance from the defendants as to the history or circumstances of the matter. This is in no way the fault of Mr Gasic, who this morning appears for the defendant. The defendant is in a situation where its files relating to the matter were in transition between and, indeed, in part remain in transition between Mr Sunman, the solicitor who previously acted for it and Deacons, of which Mr Gasic is a representative, which firm has now been appointed the defendant's solicitors in the matter. Mr Gasic, however, is instructed that the defendant seeks to proceed with the sale this morning and opposes the grant of the injunction. 7 The material, particularly the evidentiary material on which alone I can in the end act, are not sufficient to found the grant of an injunction. This is unfortunate if it is correct, as Mr Maamari has informed me, that he instructed solicitors some little time ago to make an injunction application and has in some way been let down by them. Nonetheless, the Court can act only on the material laid before it. This is an application that is made, for whatever reason, at the eleventh hour or later and I cannot see sufficient justification in the material before me to grant an injunction restraining the sale at this late stage. 8 In view of all of the above matters, whilst it is obvious that the plaintiff may be disadvantaged by the auction sale proceeding, I am not prepared to find on the material before me that it has been established that there is a serious question to be tried in relation to the entitlement of the plaintiff to injunctive relief. 9 I ought add that there are serious gaps in the evidence laid before me as to the matters relevant to the grant of an injunction. Although the indicative letter of offer was given by the Arab Bank some six weeks ago, there is no further evidence available as to whether and when the loan will actually materialise. Furthermore there is absolutely no evidence or material before the Court as to how two 20 year old children of Mr Maamari would be able to provide the more than half a million dollars which would be needed to complete the purchase over and above funds lent by the Arab Bank. Nor are there in evidence, although the contract is said to exist, the terms of the contract that has been entered into by the plaintiff for the sale of the property to the Maamari children. 10 Furthermore, Mr Maamari has informed me that the plaintiff, of which he is the sole director, is prepared to give an undertaking as to damages, but I remain unconvinced from the answer he gave to a question that I asked that he has any real understanding of what that undertaking means, what its ambit is and what the consequences of its breach may be. 11 In light of all the above deficiencies, but particularly because of the failure to establish a serious question to be tried, the interlocutory application must fail and, as the auction is to take place today, the further continuation of the proceedings is pointless.