Zel Management Pty Limited v JGS Holdings Pty Limited [2011] NSWSC 1237

Supreme Court New South Wales

Medium Neutral Citation: Zel Management Pty Limited v JGS Holdings Pty Limited [2011] NSWSC 1237 Hearing dates: Thursday, 6 October 2011 Decision date: 06 October 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Application declined. Catchwords: INJUNCTIONS - Plaintiff seeks ex parte injunction - plaintiff has seriously arguable case and balance of convenience favours grant of injunction - circumstances that a Court had recently withdrawn injunction given plaintiff's failure to pay moneys into court - Court had also restrained plaintiff from lodging further caveats - circumstances entail inappropriate to grant ex parte relief. Category: Procedural and other rulings Parties: Zel Management Pty Limited (plaintiff) JGS Investment Holdings Pty Limited (defendant) Representation: Counsel: R E Dubler with D Allen (plaintiffs) Solicitors: Sterling Legal File Number(s): 2011/260470

Judgment (ex tempore) 1HIS HONOUR: Having regard to the plaintiff's tender of a bank cheque for $150,000, by way of security for the undertaking as to damages, or on account of the purchase price payable upon the exercise of its call option in respect of the property, and the evidence that addresses the various conditions precedent referred to in the deed that lies at the heart of these proceedings, which tends to establish that those conditions precedent if not satisfied were waived, and in the absence of a defence being filed within the time limit for filing a defence, I would be inclined to conclude that the plaintiff had a seriously arguable case for final relief on the material now before the court. Further, I would incline to the view that the balance of convenience favoured the grant of the injunction sought, as it is not apparent that there would be any detriment to the defendant from such an injunction, whereas an apparently strong case for final relief might otherwise be defeated. 2However, I do not come to this matter afresh. On 15 August 2011, Ward J extended the operation of the plaintiff's caveat, the effect of which was to prevent the defendant from dealing with the subject property, subject to conditions that there be paid into court the sum of $150,000 within 14 days and on the usual undertaking as to damages proffered by the plaintiff and on behalf of two associated entities which were required to file in court, within a limited time, a formal undertaking as to damages. 3On 2 September 2011, the plaintiff not having complied with either of those conditions, the defendant asked her Honour to order the withdrawal of the injunction. Having regard to the circumstance that the $150,000 had not been paid, her Honour thought that there was now real doubt as to the ability of the plaintiff to establish that it was entitled to specific performance and a real prospect that it would simply be left to a claim for damages, and made an order discharging the order extending the operation of the caveat. Specifically, her Honour refused the plaintiff's application to extend, to October 5 2011, the time for payment into court of the sum of $150,000. Thus, on 27 September 2011, when an associate of the plaintiff had lodged a substantially identical caveat, her Honour made orders for withdrawal of that subsequent caveat and restrained the plaintiff and various associates of the plaintiff from lodging a caveat over the property. 4All those proceedings took place on notice between the parties. Despite what I have said about the question to be tried and the balance of convenience, as it now appears to me on the evidence before me it cannot be said that the same position would necessarily obtain in the event of the defendant having an opportunity to be heard. In light of the history of the proceedings, it seems to me that there would be a great sense of injustice if, the plaintiff having been restrained from lodging any further caveat, the defendant were suddenly to find itself bound by an injunction which, while not necessarily preventing it from selling the property, might have substantially the same effect. 5For these discretionary reasons, in my view, it would be inappropriate to grant ex parte relief. Moreover, the evidence does not persuade me that there is a sufficient risk of dissipation in the short term as to justify the grant of ex parte relief. 6I will abridge time for service and make the notice of motion returnable at a time convenient to counsel. 7My orders are as follows: 1.Upon the undertaking of Tom Zreika, solicitor, to pay the appropriate filing fees, grant leave to the plaintiff to file a notice of notice motion in the form initialled by me dated this day and placed with the papers. 2.Direct that motion be returnable before me as duty judge at 2 p.m. on Friday 7 October 2011. 3.Abridge time for service of the motion to 5 p.m. today.