Wills v Austen [2013] NSWSC 369

Supreme Court New South Wales

Medium Neutral Citation: Wills v Austen [2013] NSWSC 369 Hearing dates: 04/04/2013 Decision date: 04 April 2013 Jurisdiction: Equity Division Before: McDougall J Decision: Defendants restrained until 22/04/2013 from dealing with subject land. Catchwords: PRACTICE & PROCEDURE - Injunctions - Interlocutory injunctions - where undertaking as to damages - strength of undertaking assessed against likelihood and quantum of prospective damages. Legislation Cited: Land Tax Management Act Real Property Act 1900 (New South Wales) Category: Procedural and other rulings Parties: Kevin Patrick Wills (Plaintiff) Alison Ruth Austen (First Defendant) Benita Rose Kearney (Second Defendant) Representation: Counsel: DPM Ash (Plaintiff) AD Farrar (Solicitor) (Defendants) Solicitors: Joe Weller & Associates (Plaintiff) Farrar Legal (Defendants) File Number(s): 2013/82298

Judgment (ex tempore - revised 15 april 2013) 1HIS HONOUR: It appears to be common ground that on 2 September 2010, the plaintiff agreed to sell land at McMasters Beach in the State of New South Wales to the defendant. The purchase price paid stipulated was $1.1 million. The contract was completed by a transfer dated 14 October 2010. In the usual way, that transfer acknowledged the receipt of the stipulated consideration. It is the plaintiff's case that in fact less than the full amount has been paid. 2The plaintiff lodged a caveat to protect what he claims was his interest in the subject property. That caveat has lapsed. The plaintiff seeks either an order under s 740 of the Real Property Act 1900 (New South Wales) or the grant of interlocutory relief to restrain the defendants from dealing with their interest in the land. 3The position is a little complicated because the defendants' solicitor, Mr Farrer, has been unable to obtain precise instructions as to the amount that his clients have paid in satisfaction of the purchase price. It is his understanding (I put it no higher than that, and acknowledge that on further examination the understanding may prove to have been incorrect) that there is some amount outstanding, but of the order of $100,000 or less. 4The plaintiff's evidence is that there is money outstanding. That evidence is uncontroverted by evidence in reply. Thus, prima facie, the plaintiff has demonstrated that he is entitled to an unpaid vendor's lien over the property. I say that because it does not appear to have been the case, on either party's view of the relevant events, that the purchase price stipulated was a sham or that it was never intended to be paid in full. 5I should note that the plaintiff put his case in the alternative as being that he is entitled to a trust over the land. I fail to see how that can arise where the plaintiff asserts that the contract and the transfer were genuine or bona fide, and where he asserts that he is entitled to be paid in full the purchase price stipulated. 6In those circumstances, it seems to me that the plaintiff has made out a prima facie case for the grant of limited interlocutory injunctive relief. 7Mr Farrer properly criticises the plaintiff's evidence. He notes that there has been nothing from the plaintiff himself. The plaintiff has filed a statement of claim and that statement of claim has been verified. 8However, the affidavits on which the plaintiff relies today are made by his solicitor, Mr Weller. The first of those affidavits did nothing more than say that Mr Weller was informed by the plaintiff and believed that each of the facts alleged in the statement of claim was true and annexed various documents and offered the usual undertaking as to damages. 9The second affidavit dealt with the circumstances in which the caveat had lapsed. It then went on to look at the facts asserted in the statement of claim. In substance, it set out the relevant facts as pleaded, and said that Mr Weller was informed by the plaintiff and believed that those facts were true. 10The third affidavit dealt with an aspect of the second affidavit relating to the worth of the plaintiff's undertaking as to damages. 11I accept that the evidence is, to put it mildly, unsatisfactory. Nevertheless, however, it was read without objection. In circumstances where this is an interlocutory hearing, the Court may act on hearsay evidence. The weight of the evidence is a different matter, but in circumstances where there is nothing to controvert it (and where many of the underlying or basic facts are corroborated by documents) the evidence must be given some weight. 12Thus, as I have said, notwithstanding Mr Farrer's submissions as to the strength of the evidence, I am satisfied that the plaintiff has made out a prima facie case for injunctive relief on an interlocutory basis. 13The next point taken was as to the strength of the plaintiff's undertaking as to damages. The evidence on that is somewhat obscure. Mr Weller's second affidavit set out the plaintiff's circumstances and asserted that he had "a half share of the house where his brothers live". The third affidavit suggests that indeed the plaintiff is a joint tenant of the property in question and that it has a land value, according to the Land Tax Management Act of $319,000. The title search disclosed no relevant encumbrance. 14Mr Ash of counsel, for the plaintiff, corrected the assertion as to the "half share". He said that the correct position was that the brothers had a life interest in the property and that the plaintiff and the other joint tenant had, in effect, the reversion. 15The value of a joint tenancy in a reversion, in the absence of any evidence that would enable the Court to assess the likelihood of the reversion's falling in and of the plaintiff outliving the other joint tenant, is somewhat nebulous. 16Nonetheless, there is no evidence that the defendants wish to do anything with the subject property at present. 17The object of the undertaking as to damages is to protect the defendant against whom an interlocutory injunction is granted in the events that, by reason of a continuance of the injunction and upon its being found on a final hearing to have been unsustainable, any loss incurred by the defendant will be recompensed. 18Thus, the strength of the undertaking as to damages must be assessed against the likelihood that damages will be suffered and the likely magnitude of those damages. 19In this case there is no evidence to suggest that the defendants have any intention to deal with the property. Thus it is unlikely, on the evidence as presently it stands, that they will sustain any damage by reason of the subsistence of the injunction, if granted. 20Further, if circumstances change it is open to the defendants to make application for discharge or variation of any injunction that is granted. 21Although there is no evidence of any present intention to deal with the property, nonetheless I think on balance that the grant of interlocutory relief is justified. 22I take into account, among other things, the fact that it is unlikely that the grant of injunctive relief would occasion any significant hardship to the defendants. 23It does, however, seem to me to be important that the plaintiff himself put on evidence in proper form in support of his statement of claim. That should be done, in my view, before the defendants are required to put on their evidence and at the same time as the defendants are required to file their defence. 24If it is correct to say, as Mr Farrer asserted, that the amount at issue may be of the order of $100,000 or less, then this is obviously a case that should be dealt with as expeditiously as possible. Indeed, I would have thought it is a case that should be resolved by mediation if the parties cannot bring themselves to the negotiating table without the assistance of a court order. 25In those circumstances, I propose to grant interlocutory injunctive relief and to give directions for the filing of a defence and as to the plaintiff's affidavit evidence. I then propose to bring the matter back before the Court so that the position can be examined, in particular with a view to seeing whether (if the proceedings have not by then been resolved) early mediation will help. [Counsel addressed.] 26I make the following orders: 1. Note that the plaintiff by counsel gives to the Court the usual undertaking as to damages. 2. Order that up until 5 pm on 22 April 2013 the defendants or either of them be restrained from dealing with the land 12 Bombi Road, McMasters Beach, being the land titled in Torrens folio number B/363802. 3. Direct the plaintiff to serve all affidavit evidence on which he intends to rely in chief in support of his statement of claim by 18 April 2013. 4. Direct the defendants to file and serve their defence by 18 April 2013. 5. Stand the proceedings over to the Registrar's List on 22 April 2013. 6. Reserve the costs of today. 27I reserve liberty to apply on twenty-four hours notice.