Consideration
24 This Court has jurisdiction in respect of the applicant's claim, as already mentioned. This Court is not a clearly inappropriate forum for the determination of the parties' dispute. The only consideration to the contrary is the small value of the applicant's claim which casts doubt on whether a Superior Court should be called on to determine it. Although the applicant's claim could not have been brought in Division 2 of the Federal Circuit and Family Court of Australia because s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) does not give jurisdiction on "ACT matters" to that Court, under s 32AB(1) of the Federal Court of Australia Act 1976 (Cth) this proceeding as a proceeding in this Court can be transferred to that Court. There would appear to be very good reason to do that, which is a matter that the docket judge can consider once a docket judge is assigned. The parties also indicated that they would be amenable to very early mediation.
25 As the applicant has already sought a stay in ACAT which has been refused, there is no need to consider whether to require the applicant to take such a course. Unfortunately, no reasons for ACAT's decision appear to have been published. In any event, they have not been made available to me. The result is that I am not able to understand why the stay application was refused and whether the reasons are such as to persuade me that this anti-suit injunction application should also be refused.
26 There is no doubt that it would be contrary to the interests of justice for both proceedings to continue in parallel. That would raise the spectre of conflicting outcomes, but it would also be wasteful of the parties' resources, as well as the public resources committed to the administration of justice by this Court and ACAT. Every consideration of convenience, expense and efficiency demands that one or other of the proceedings does not progress and that the parties' dispute be determined in one forum.
27 There is however only one forum where both sides' claims can be heard and determined in full, and that is this Court. That is because the claim that the applicant asserts is over the jurisdictional threshold of ACAT. The applicant could abandon that portion of its claim that exceeds the threshold of $25,000, and in that way have both claims heard in ACAT, but that could potentially do substantial injustice to the applicant.
28 I am satisfied on the facts that I have set out above that there is a serious issue to be tried in relation to the termination of the contract and consequently the entitlement of the respondents to the return of their deposit or the applicant to any damages. There is also doubtless a serious issue to be tried on the question of steps taken by the applicant, if any, to mitigate its damages.
29 The matter that troubles me is the quantum of the applicant's claim. As I have said, there is essentially no evidence to justify the quantum at the level of $220,000 or indeed at any level above the ACAT jurisdictional limit. Mr Buckland, who appears for the applicant, draws attention to the provision in the contract that in respective of any variation, the applicant is entitled to a "builder's margin" of 20%. The difficulty with that is the contract states that that is not the profit that the builder is receiving on the contract, and in any event that would reach a figure of $140,000 not $220,000 - although nevertheless substantially above the ACAT threshold. The sum of $220,000 represents a margin of 31%. That is manifestly excessive.
30 Mr Buckland also submits that the court can and should infer from the applicant's conduct in applying to set aside the orders in ACAT that were made in its absence, applying to ACAT to stay the proceeding there, bringing the proceeding in this Court and now applying for the anti-suit injunction in this Court, that the applicant does indeed have a reasonably arguable claim at an amount significantly in excess of the ACAT jurisdictional limit.
31 There is, of course, some force in that, although there is also the available inference that the applicant has taken those steps to frustrate the respondents' efforts to obtain the refund of their deposit. That would be consistent with what seems to me to be the extraordinary and oppressive conduct of the applicant in holding the respondents to the contract a year after they had first said that they cannot afford to go ahead with it. That may well raise issues of estoppel and unconscionable conduct, but those are not issues for decision at this stage.
32 The Court is in the horns of a difficult dilemma. That is because, on the one hand, it might be said that there is insufficient evidence before the Court to be satisfied that there is a serious issue to be tried on the question of quantum above the ACAT jurisdictional limit, such as to justify the exercise of the discretion against ordering an anti-suit injunction, but on the other hand, if the anti-suit injunction is refused, the two parallel proceedings would continue with all that that entails.
33 It seems to me that the omission of adducing any evidence to support an assessment of quantum may have been because of oversight, rather than because the quantum is likely to be less than the ACAT jurisdictional limit. On that basis, I am satisfied that there is a serious issue to be tried on that question.
34 Turning to the question of the balance of convenience, I accept that there is considerable prejudice to the respondents if they are, at this late stage, merely days before their final hearing in ACAT, to be restrained from continuing that proceeding. But, ultimately, the considerations with regard to the interests of justice, which are essentially subsumed into the balance of convenience inquiry, must carry the day. It would seriously undermine the public's confidence in the administration of justice if a situation could be allowed to continue where the same dispute is being litigated in two parallel forums.
35 So, with considerable reservation, I conclude that an anti-suit injunction must issue. In the circumstances, there must be an injunction restraining the respondents from taking any further steps in the ACAT proceeding, including seeking any relief at the hearing next week, other than to apply to stay or discontinue that proceeding.
36 Because what might otherwise have been a relatively straightforward case is not so, arising from the applicant's failure to adduce any evidence or explanation in support of its quantum, and as an expression of the court's disquiet in that regard, the costs order that is fair and appropriate in the circumstances is that the costs of the interlocutory application be the respondents' costs in the cause in the principal proceeding.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.