New South Wales Supreme Court CITATION : Azkanaad Pty Ltd v Galanos Bros Pty Ltd [2008] NSWSC 508 HEARING DATE(S) : 21 May 2008 JUDGMENT DATE : 21 May 2008 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Injunction granted for short time to permit application to be made to Court of Appeal for injunction pending hearing of appeal. CATCHWORDS : APPEAL AND NEW TRIAL [248] - Appeal - Practice and procedure - Stay of proceedings or injunction to prevent execution of judgment pending appeal - Application where appeal to Court of Appeal pending usually dealt with by Court of Appeal or Judge of Appeal rather than Judge in Division – Injunction granted for short time to permit application to Court of Appeal. CATEGORY : Procedural and other rulings CASES CITED : Azkanaad Pty Ltd v Galanos (No 2) [2008] NSWSC 476 Pro Corp Civil Pty Limited v Napoli Excavations and Contracting Pty Limited [2006] NSWSC 358 PARTIES : Azkanaad Pty Limited (P) Galanos Bros Pty Limited (D) FILE NUMBER(S) : SC 2454/08 COUNSEL : M V Sahade (P) N A Cotman SC (D) SOLICITORS : Philip Goldman & Co (P) VA Lawyers Pty Limited (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 21 MAY 2008 2454/08 AZKANAAD PTY LIMITED v GALANOS BROS PTY LIMITED JUDGMENT 1 HIS HONOUR: In this case the plaintiff tenant is in possession of a service station and the defendant landlord is out of and attempting to gain possession. In its efforts to resist this, the plaintiff made a claim in these proceedings for final relief that was dealt with by Gzell J on 16 May 2008: Azkanaad Pty Ltd v Galanos (No 2) [2008] NSWSC 476. It failed to gain any such relief. The defendant is now threatening to re-take possession of the premises. 2 The plaintiff seeks an injunction to restrain the defendant from doing so pending the hearing of an appeal in the Court of Appeal from the decision of Gzell J. The general practice is for a Judge in a Division to give such an injunction for a short time only to permit the proposed appellant to commence proceedings in the Court of Appeal and to seek longer term relief from the Court of Appeal, which is the tribunal in which the interlocutory situation pending the appeal should be determined. Einstein J said so in Pro Corp Civil Pty Limited v Napoli Excavations and Contracting Pty Limited [2006] NSWSC 358 at [65]. My own practice and, in my belief, the practice of other Judges in this Division confirms in general terms what Einstein J said at that place. 3 Mr Cotman, of Senior Counsel for the defendant, has pressed on me that no injunctive relief at all ought be granted in the present case. He has pointed out to me the prima facie entitlement of his client to the benefit of the final order made in the proceedings by the trial Judge. Furthermore, he has made out a strong case on the balance of convenience for his client being permitted to re-take possession of the service station summarily. 4 I do not intend to go into those grounds in detail but I should indicate that they include that the rent on the premises has been paid irregularly and short paid; an apparent inability to pay its debts; that the plaintiff has conducted its business in the premises only irregularly; and that the plaintiff's undertaking as to damages in support of the injunction sought is valueless in light of its financial situation, or certainly that it has failed to generate any confidence that an undertaking as to damages would be met. Another element of hardship which is put forward on the defendant's behalf as to the balance of convenience is that it is in negotiations with Woolworths Ltd, obviously a desirable alternative tenant, to grant it a lease of the premises and that it is fearful that, if the matter is delayed, Woolworths Ltd will lose interest and it will lose this desirable replacement tenant. 5 These are weighty matters and there is a deal of evidence to support them. On the other hand, the plaintiff's case on the balance of convenience is that it has conducted a business in the premises over some years and that its removal from the premises and consequent irrevocable destruction of that business would be a great hardship indeed. 6 The reason that I do not propose to conduct except in a very limited way any balancing exercise of these elements of inconvenience is that there are two other important considerations in the grant of injunctions to maintain the status quo pending the hearing of an appeal and they are a judgment as to the prospects of success in the proposed appeal combined with an inside or authoritative knowledge as to when the appeal is likely to be heard in the Court of Appeal. 7 As to the first of those, it is not, in my view, other than in exceptional circumstances where it cannot be avoided, appropriate for a single Judge in a trial to pass upon the likelihood of the success of an appeal from another trial Judge of the Division. That is a matter better dealt with in the Court of Appeal either by a single Judge of Appeal or a Full Court as appropriate. 8 Secondly, a Judge of Appeal would be able to pass upon the questions as to whether or not an expedited hearing of the appeal was justified or likely and when the hearing of the appeal would take place. 9 The opinion I have come to is that, viewed over a very short term of a week or so, the harm occasioned to the plaintiff by permanent loss of possession would outweigh any additional inconvenience that the defendant would undergo by the grant of an injunction for such a short period. The loss of rent during that time (if it occurred) would not be great in the overall picture. The evidence indicates that Woolworths Ltd is not likely to go away as an interested alternative tenant in the space of a week or so, although it may lose interest if the availability of the premises is postponed for a longer period. 10 In these circumstances, it is my view that the general practice should be adhered to. I shall keep the time tight in view of the circumstances that I have outlined. I propose to grant an injunction up to and including 30 May 2008 to permit an approach to be made to the Court of Appeal. If the Court of Appeal needs a little longer than that to deal with the matter, that can no doubt be dealt with by a Judge of Appeal. 11 The orders of the Court will therefore be that upon the plaintiff by its counsel giving to the Court the usual undertaking as to damages I order that the defendant be restrained by itself its servants and agents from re-taking possession of Lot 1 Captain Cook Drive Woolooware being the whole of Lot 1 in Deposited Plan 226839 up to and including 30 May 2008. In the unusual circumstances of this case it is my view that the appropriate order as to costs is that costs be reserved. I direct that these orders may be entered forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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