New South Wales Supreme Court CITATION : Chahrouk & Anor v Sydney Markets Ltd [2008] NSWSC 1215 HEARING DATE(S) : 17 November, 2008 JUDGMENT DATE : 17 November 2008 JURISDICTION : Equity Division JUDGMENT OF : Palmer J EX TEMPORE JUDGMENT DATE : 17 November 2008 DECISION : Interlocutory injunction granted. CATCHWORDS : INTERLOCUTORY INJUNCTION – Whether serious question to be tried – whether balance of convenience favours injunction – no question of principle. CATEGORY : Procedural and other rulings Anwar Chahrouk (First Plaintiff) PARTIES : Aussie Fruitveg Pty Ltd (Second Plaintiff) Sydney Markets Ltd (Defendant) FILE NUMBER(S) : SC 5493/08 COUNSEL : R.D. Marshall, Ms J. Beck (Plaintiffs) S. Philips (Defendant) SOLICITORS : Pope & Spinks (Plaintiffs) Middletons (Defendant) 5493/08 Chahrouk & Anor v Sydney Markets Ltd JUDGMENT – Ex tempore 17 November, 2008 1 The First Plaintiff, Mr Chahrouk, is a licensee of fruit and vegetable stalls at the Sydney Markets Complex ("the Markets"), which is operated by the Defendant. Mr Chahrouk conducts his business through the Second Plaintiff, Aussie Fruitveg Pty Ltd. 2 Mr Chahrouk is entitled to conduct the business at the fruit and vegetable stalls pursuant to an Occupancy Agreement granted by the Defendant. The Occupancy Agreement contains a term entitling the Defendant to refuse entry by the Plaintiffs, or either of them, to the Markets in the following terms: " 6.2 SML may refuse entry to the Markets SML may refuse entry to the Markets to your officers, partners, employees, agents, contractors, customers, invitees and all other persons if for any reason it considers their entry to the Markets to be undesirable. Without limiting the reasons SML may use to exclude persons from the Markets pursuant to this clause, SML may exclude persons for the following reasons: … (d) they have made a nuisance of themselves, created a disturbance or acted in a way that was unsafe and threatened the person or property of others in the Markets;" 3 On 20 October 2008, Mr Chahrouk was involved in an incident of violence at the Markets. I will return to that incident in a little more detail shortly. On 21 October 2008 the Defendant issued a notice pursuant to clause 6.2(d) of the Occupancy Agreement, banning Mr Chahrouk from attending the Markets for a period of twelve months. Mr Chahrouk challenged that notice. 4 On 14 November 2008, the Defendant issued a new notice banning him for a period of six months. That notice relied upon the incident which had occurred on 20 October 2008. 5 The Occupancy Agreement does not provide a mechanism for the hearing of disputes between the parties in anything like a process such as arbitration or even by an informal hearing at which the parties may present their cases and be heard. 6 The Plaintiffs commenced proceedings by way of Summons on 3 November 2008. They challenged the validity of the banning notice for twelve months which had been issued on 21 October 2008. Since that time, as I have said, the Defendant has issued a substituted banning notice for a period of six months. The Plaintiffs now seek interim relief in respect of that second and substituted banning notice. The Summons will have to be amended in due course to refer to the second notice, but the contest today is as to whether interim relief ought to be granted in respect of the second notice. 7 The Plaintiffs say that the factual basis upon which that notice is founded does not exist; that is, Mr Chahrouk has not done any act which would fall within clause 6.2(d) of the Occupancy Agreement thereby entitling the Defendant to suspend his contractual right to attend the stalls in the Markets. 8 There are two questions which arise on this application. The first is, of course, whether there is a serious question to be tried as to whether an act falling within clause 6.2 of the Occupancy Agreement occurred such as to entitle the Defendant to invoke its right to suspend Mr Chahrouk's attendance in accordance with clause 6.2. The second question is where the balance of convenience lies if the Plaintiffs have made out a serious question to be tried on the first issue. 9 It is necessary to observe in relation to the first issue that the incident which occurred on 20 October 2008 is now the subject of criminal proceedings. The Police have conducted an investigation into what occurred and have charged Mr Chahrouk with assault. That charge is defended. It is to be heard, so I am informed, in the Local Court at some time early next year. It is inappropriate, for that reason, for this Court either to purport to decide the facts in contest in the criminal proceedings or, indeed, to say anything very much about them one way or another in such a way as may prejudice the conduct of the criminal proceedings. 10 It may be said, however, that the affidavit evidence presented in Court today demonstrates a very clear division between the parties as to what occurred on 20 October. According to Mr Chahrouk and three witnesses called by him, the alleged victim of the violence was in fact the perpetrator and the aggressor in the incident, and Mr Chahrouk was doing no more than defending himself against an attack. Affidavit evidence produced by the Defendant is to the contrary effect. 11 It is impossible, as I have said, and extremely undesirable, for me to attempt to determine the factual issues. It is clear that the finding as to whether or not Mr Chahrouk was guilty of an assault is one which must be made, after the testing of evidence by cross examination, by the Local Court which is determining the assault charge next year. 12 I conclude that there is sufficient evidence to raise a serious question to be tried as to whether or not Mr Chahrouk did anything on 20 October 2008 which could fall within the scope of clause 6.2(d) of the Occupancy Agreement. I turn to the question of where the balance of convenience lies. 13 Mr Chahrouk has given evidence that it is necessary for him to be present at the stalls in the ordinary course of business to ensure that his business is being conducted properly and efficiently. He says that he has relationships with clients which it is important for him to maintain. That evidence is not in dispute. 14 Mr Chahrouk says that he has been a stallholder at the Markets for many years – I think in excess of ten. He says that during the whole of that time he has never been involved in any incident of violence and that there has been no complaint of that character ever levelled against him. That evidence is unchallenged by any evidence to the contrary proffered by the Defendant. 15 The Defendant says that there should be no interim injunction, the effect of which would be to permit Mr Chahrouk to gain entry to the Markets, because the Defendant has an obligation to protect its customers and its staff from violence and that there is reason to suppose that Mr Chahrouk will, if granted access, pose a threat to persons on the property. 16 As I have recounted, there is no support for that suggestion in the evidence. This incident seems to be an isolated instance arising out of a dispute as to the payment of a debt. However, I am mindful of the fact that violence and aggression is a serious problem. One cannot ignore the fact that the Sydney Markets are not conducted like a vicarage tea party. 17 Mr Chahrouk through his Counsel has proffered an undertaking to the Court, in essence, to be of good behaviour if the interim injunction is granted permitting him to have access to the Markets pending the determination of the proceedings While I do not think that such an undertaking would tip the balance one way or another – that is, that I would decline to grant relief if the undertaking were not proffered – I think, nevertheless, that it is a further assurance to the Court that it is proper, in the exercise of discretion as to the balance of convenience, to grant the injunction. 18 For these reasons, I will accept the undertaking proffered by Mr Chahrouk to the Court through his Counsel in terms of the document initialled and place with the papers. I make orders in accordance with the Short Minutes of Order. – oOo – 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.