Lan v Kaymet Corporation Pty Ltd

Court of Appeal (NSW)|2017-03-09|Before: McColl JA, Leeming JA, Hammerschlag J, Coll JA

Background

Kaymet was the developer of a building located in Lusty Street, Wolli Creek, containing 94 residential apartments. Between 23 November 2009 and 1 April 2010 each of the 24 appellants (and a number of others) were parties to contracts with Kaymet to purchase an "off the plan" apartment in the proposed development. The contracts were in identical form.
Each contract contained a provision that completion was conditional on the registration of the "Strata Documents" with Land and Property Information New South Wales on or before the "Date of Registration". In the events which occurred, the Date of Registration was 30 months from exchange of each contract.
After the Date of Registration had passed, Kaymet purported to rescind the contracts. It did so in a rising residential market, with the consequence that each apartment was apparently worth, or at least potentially worth, considerably more than the contract price.
The appellants and 19 other purchasers (43 in all) instituted proceedings in the Equity Division disputing the entitlement of Kaymet to rescind the contracts. The 43 plaintiffs did so on the ground, among others, that Kaymet itself was responsible for the delay in registration of the Strata Documents.
On 6 December 2013, Hammerschlag J made an order by consent in the Equity Division proceedings in the following terms: "The usual undertaking as to damages having been proffered through their counsel by the persons, named in the Schedule to the Short Minutes of Order I am about to make, until further order [Kaymet is] restrained from taking any steps to lease the units or sell the units as provided in the Short Minutes of Order which I have … placed [with] the papers."
The Short Minutes of Order referred to in the order made by Hammerschlag J provided as follows: "The usual undertaking as to damages having being proffered by the persons named in the Schedule hereto, through their Counsel, until further order [Kaymet is] restrained from taking any step to (a) Lease the Units in the residential complex at … Lusty Street, Wolli Creek, listed on the Schedule hereto, to any person; or (b) Sell the Units, to any person other than the person or persons listed on the Schedule hereto as the purchaser."

The hearing before the primary Judge

At the outset of the hearing before Hammerschlag J Mr Corsaro, senior counsel for Kaymet, indicated to his Honour that he wished to read some affidavits. His Honour asked counsel for the plaintiffs (the respondents to Kaymet's application) what the legal issue was. Counsel replied that the issue was whether the unrealised gain made by Kaymet could be offset against Kaymet's claim for loss of rental.
The primary Judge pointed out that the parties had not complied with directions for the filing of evidence. Both counsel then asked for a short adjournment to determine whether they could agree on a "substratum of fact" to enable the matter to proceed without further delays.
Before the adjournment, Mr Corsaro provided his Honour with a "large format A4 document" (A4 Document) which apparently set out the calculations on which Kaymet's claim for compensation for lost rent was based. It appears that the A4 Document had only been provided to the plaintiffs' counsel the morning of the hearing before Hammerschlag J. No doubt suitably encouraged by his Honour's observation that the parties' lawyers were in "egregious breach" of s 56 of the Civil Procedure Act 2005 (NSW), counsel returned after a brief adjournment and stated that they had reached agreement on some figures. (The A4 Document was not included in the White Book and despite a request by this Court for its production during argument on the appeal it was not provided.)
Mr Corsaro then explained to his Honour that the A4 Document calculated Kaymet's loss of rental for each of the apartments the plaintiffs had agreed to purchase. Although the injunction had been granted on 6 December 2013, the calculations of lost rental were made in each case from a later date because, according to Mr Corsaro, Kaymet wished to take a "conservative view" of its losses. Depending on the date of rescission of the contracts of sale, it appears that the calculations commenced on various dates between 5 February 2014 and 5 November 2014. However, in each case the period in respect of which loss of rental was calculated continued until 15 October 2015. [5]
The parties also informed the primary Judge that they agreed that the increase in value of each apartment between the date the injunction was granted (6 December 2013) and 15 October 2015 exceeded the loss of rental claimed for that apartment. His Honour confirmed in the course of argument that he should assume that: "in all of these cases there is an unrealised market gain exceeding the amount of the alleged lost rental".
The following exchanges then took place: "CORSARO: … the agreement will relieve the Court of having to listen to any cross-examination, but I still wish to rely on the affidavits that have been served at sometime. HIS HONOUR: Why? CORSARO: Why? Because they relate to intention to lease, lest it be relevant, lest it be said that -- HIS HONOUR: Is that in dispute? CORSARO: It doesn't appear to be, on the basis of what we've seen. However, we haven't had that concession. … HIS HONOUR: Mr Drummond [counsel for the plaintiffs], are you putting in issue that Mr Corsaro's clients would have leased them out if they could have? DRUMMOND: No, your Honour we are not. HIS HONOUR: That is another agreed fact. DRUMMOND: Yes. Could I make clear for Mr Corsaro, we accept it was reasonably foreseeable that they would have rented the units out at some stage after the injunctions and the undertakings -- HIS HONOUR: The principle is whether it is just and equitable to make allowance for the fact that as a consequence of the passage of time that the value exceeds the unrealised market value, capital value on sale would exceed the value if now realised of the rental they would have earned? DRUMMOND: Yes. HIS HONOUR: This principle you talk about, is that affected by whether or not the plaintiffs are likely to have sold or does it not matter? DRUMMOND: We say it doesn't matter. … HIS HONOUR: Mr Corsaro presumably is not taking issue with the principle that if there was a realised gain he could [not] still get the rental as well. DRUMMOND: Yes." (Emphasis added.)
After hearing submissions from counsel for the plaintiffs, his Honour delivered an ex tempore judgment without calling on senior counsel for Kaymet.

Primary Judgment

The primary Judge concluded that Kaymet was entitled to compensation in the agreed amounts for lost rental without any deduction for the unrealised capital gains. The primary Judge's reasons for reaching this conclusion are concise: "[5] [Kaymet] now moves for an order for compensation reflecting the loss that it suffered as a consequence of not being able to rent out each of the units, for the period from the date or [sic] rescission in each case to the date the injunction was dissolved. The parties are agreed that, but for the injunction, [Kaymet] would have rented out the units and they are agreed as to the amount of rental forgone. [6] The plaintiffs resist [Kaymet's] claim on one basis only, namely that the capital sale value of the units increased during the relevant period (of the injunction) by more than the lost rental. They put that this unrealised gain falls, on equitable principles, to be set off against [Kaymet's] loss. In support of this proposition they rely on the two decisions of Young CJ in Eq in Churnin v Pilot Developments Pty Ltd [2007] NSWSC 1459 and [2008] NSWSC 831, in which his Honour held that when the Court assesses compensation to be paid under the usual undertaking as to damages it is applying equitable principles and that it is just, in appropriate circumstances, to offset losses made by the object of the injunction, against gains made by it. [7] The difference between that case and this one is that there the gains were realised, whereas here they have not been. It is not suggested that [Kaymet] has sold, or that it should have sold, any of the units. [Kaymet] was under no obligation to sell the units. There is no basis in equity or in law for applying the principle to unrealised or potential gains. No gain has been made by [Kaymet] as it had been made in Churnin's case." (Emphasis added.)

Appellants' submissions

The appellants' written submissions accepted that counsel then appearing on their behalf had conceded before the primary Judge that Kaymet was: "entitled to have leased the Apartments during the currency of the injunction and, but for the injunction, would have done so".
Mr Sexton contended that the issue presented for determination at trial was whether the unrealised appreciation in the value of the apartments should be set off against the lost rental income, the quantum of which had been agreed between the parties. This was an issue of principle. The primary Judge dealt with the issue on the basis that the capital appreciation that had occurred after the injunction was granted remained unrealised and therefore could not be offset against Kaymet's loss of rental. In substance, his Honour had decided that if a defendant benefited from an unrealised capital gain as a result of an injunction, that gain could never be offset against losses sustained by the defendant attributable to the injunction.
According to Mr Sexton, had the primary Judge applied the correct test, he would have determined the quantum of compensation, if any, that was just or equitable in all the circumstances of the case. In applying this test, his Honour should have considered "the relevant counterfactual". Mr Sexton submitted that if the injunction had not been granted, Kaymet would have either leased the apartments or sold the apartments. If Kaymet had done the latter, they would not have obtained the benefit of the capital gain that accrued thereafter.
It was said that the primary Judge's error was to distinguish between a realised capital gain and an unrealised gain. Mr Sexton submitted that the decision of Young CJ in Churnin v Pilot Developments Pty Ltd [6] (Churnin) is authority for the proposition that a court, when assessing a claim for compensation based on an undertaking as to damages, should offset a realised capital gain against loss of income attributable to the injunction. As a matter of principle, in determining compensation that is just and equitable, there are no grounds to distinguish between realised and unrealised gains.

Kaymet's submissions

Mr Corsaro submitted that by reason of the concessions made by the plaintiffs (including the appellants) before the primary Judge, the issue presented to his Honour for determination was whether an unrealised capital gain not caused by the grant of the injunction should be offset against the loss of income attributable to the injunction. In addressing this question, his Honour was relieved from making detailed findings because the important factual matters were the subject of concessions. In particular, the plaintiffs conceded that any capital gain accruing to Kaymet was the result of its ownership of the apartments and was not a result of the injunction being granted. Churnin was authority only for the proposition that in an appropriate case gains attributable to the grant of an injunction may be offset against losses attributable to the injunction. On the agreed facts in this case, Kaymet's loss of rental was a necessary consequence of the injunction, but Kaymet would have received the benefit of the unrealised capital gains regardless of whether an injunction had been granted.

Principles

There was no dispute between the parties as to the principles to be applied in determining a claim for compensation founded on an undertaking as to damages. They have been authoritatively stated by the High Court in Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd [7] (Air Express) and European Bank Ltd v Evans [8] (European Bank).
The practice of courts of equity in requiring an undertaking as to damages is of long standing. Aickin J, in his judgment at first instance in Air Express [9] said that such an undertaking has been required since the mid-nineteenth century in cases where an injunction is granted pending determination of the proceedings or until further order. In Mansfield v Director of Public Prosecutions for Western Australia, [10] the High Court pointed out that the equity practice actually has a longer history, going back at least to the beginning of the nineteenth century.
The reason for the practice was explained by Gibbs J when dismissing the appeal from Aickin J in Air Express: [11] "The object of requiring a plaintiff who seeks an interlocutory injunction to enter into an undertaking of this kind is to attempt to ensure that a defendant will receive compensation for any loss which he suffers by reason of the grant of the injunction if it appears in the event that the plaintiff was not entitled to obtain it. The insistence upon the giving of an undertaking is a very important, if not an essential, means of preventing injustice from being done by the court when it makes an order at an interlocutory stage, before the rights of the parties have been finally determined. The court has a discretion not to enforce such an undertaking, but unless the defendant has been guilty of conduct that would render it inequitable to enforce the undertaking it would seem just, speaking generally, that a plaintiff who has failed on the merits should recompense the defendant for the damage that he has suffered as the result of the making of the interlocutory order."
The general principle is that if the party against whom the injunction is granted (the defendant) subsequently succeeds in having the injunction dissolved, that party is entitled to be compensated for all losses sustained by reason of the grant of the injunction. [12] It does not matter whether it was correct at the time to grant the injunction. [13]
In Air Express, the defendant claimed compensation for losses incurred by reason of an interlocutory injunction effectively preventing it from importing two aircraft. [14] The injunction was subsequently dissolved and the issue was whether the defendant's losses were caused by the injunction or whether the defendant would have incurred the losses in any event. Mason J explained why the distinction is important: [15] "For this reason little is to be gained in the present case from an examination of the myriad authorities which deal with causation of damage in contract, tort and other situations many of which were pressed upon us in argument. We are better advised to look to the purpose which the undertaking as to damages is designed to serve and to identify that causal connexion or standard of causal connexion which is most appropriate to that purpose. The object of the undertaking is to protect a party, normally the defendant, in respect of such damage as he may sustain by reason of the grant of the interim injunction in the event that it emerges that the plaintiff is not entitled to relief. It is no part of the purpose of the undertaking to protect the defendant against loss or damage which he would have sustained otherwise, as for example, detriment which flows from the commencement of the litigation itself. That is loss or damage which the defendant must bear himself, as he does when no interim injunction is sought or granted. Consequently, it is for the party seeking to enforce the undertaking to show that the damage he has sustained would not have been sustained but for the injunction." (Emphasis added.)
The decision in Air Express rested on findings that the losses by the defendant were due to the existence of the litigation and not to the effect of the injunction. Aickin J said that: [16] "In a proceeding of an equitable nature it is generally proper to adopt a view which is just and equitable, or fair and reasonable, in all the circumstances rather than to apply a rigid rule. However the view that the damages should be those which flow directly from the injunction and which could have been foreseen when the injunction was granted, is one which will be just and equitable in the circumstances of most cases and certainly in the present case." This statement of principle was unanimously endorsed by the High Court in European Bank. [17]
In European Bank, the Court pointed out that the undertaking as to damages is given by the plaintiff to the Court for the purposes of enforcement and is not a contract between the parties to the litigation. [18] Accordingly, the principles governing the assessment of damages for breach of contract apply to claims based on an undertaking as to damages only by analogy. The court should look to the purpose the undertaking is to serve and identify the standard of causal connection most appropriate to that purpose. [19] Moreover: [20] "Given its origin and application to varied circumstances in particular cases, the process of assessment of compensation cannot be constrained by a rigid formulation."
European Bank did not involve a claim for compensation arising out of the dissolution of an injunction. The claim in that case was based on an undertaking as to damages given when an order was made for the payment of moneys into court. However, the High Court applied the same equitable principles to the compensation claim and its approach is significant for the present case.
The Court of Appeal in European Bank ordered a judgment debt of USD 8.7 million in favour of the Bank to be paid into court pending an application by another party to the proceedings (E) for special leave to appeal to the High Court. [21] E gave the usual undertaking as to damages. [22] The High Court dismissed the special leave application and the Prothonotary repaid the amount in court to the Bank. [23] The Bank then applied for an order against E for compensation on the ground that but for the payment into court, it would have converted the USD 8.7 million into euros and made about USD 800,000 more than the interest earned on the Prothonotary's account. [24]
The trial judge found that but for the interlocutory order, the Bank would have converted the funds into euros and made the profit it claimed. The trial judge also found that at the time of the undertaking E knew that the Bank traded in foreign currency and earned money from currency differentials. [25]
The High Court stated that the correct approach involved three questions: [26] "… the first question was 'What is the loss that is now alleged?', the second 'Did that loss flow directly from the [injunction]?' and the third 'Could the loss sustained have been foreseen at the time of that order?'"
The High Court held that these three questions had to be answered in favour of the Bank. The Court clearly accepted that the critical factual issue was what the Bank would have done had the Court of Appeal not ordered the judgment debt to be paid into court. Once it was established that the Bank would have converted the funds into euros, the inquiry was not whether the Bank's actual loss was foreseen when the undertaking was given, but whether a loss of the kind actually sustained by the Bank could have been foreseen. [27]

The present case

The appellants' submissions in this Court appear to assume that the parties asked the primary Judge to decide a question of principle that would resolve the proceedings. That question is said to be whether a defendant who claims compensation for loss of rental attributable to an interlocutory injunction, must offset any unrealised capital gain accruing between the date the injunction is granted and the date it is dissolved. Mr Sexton submitted that the argument before the primary Judge proceeded on the basis that a realised capital gain must always be offset and the only question was whether an unrealised capital gain should be treated in the same way.
As the exchanges between the primary Judge and counsel demonstrate, his Honour was not asked to decide a matter of principle devoid of reference to the particular facts of the case. Both parties informed his Honour at the outset of the hearing that they wished to adduce evidence. Kaymet proposed to read affidavits establishing its intention to lease the apartments had the injunction not been granted. The plaintiffs proposed to adduce valuation evidence demonstrating that the apartments had increased in value between the grant of the injunction and its dissolution.
Instead of adducing evidence of this kind, the parties agreed to proceed on the basis of mutual admissions. The plaintiffs accepted not only that Kaymet had sustained losses of rental income as the result of the injunction granted on 6 December 2013, but also that Kaymet was entitled to be compensated for the losses it claimed in respect of each apartment. In each case the agreed loss was calculated in respect of a period beginning between 5 February 2014 and 5 November 2014 and ending on 15 October 2015 (the date on which the parties apparently assumed that the injunction had been dissolved). Kaymet conceded that each apartment had increased in value by an amount greater than the lost rental claimed in respect of that apartment. Kaymet did not concede that it would not have enjoyed the capital gain had the injunction not been granted.
The plaintiffs' concession necessarily implied that Kaymet, had the injunction not been granted, would have leased each apartment and derived rental during a period ending on 15 October 2015. In other words, the counter-factual accepted by the plaintiffs was that in the absence of the injunction, Kaymet would not have sold any of the apartments prior to 15 October 2015 but would have leased them and received rental until that date. If in the counter-factual world Kaymet had completed sales of the apartments before 15 October 2015, Kaymet could not have derived rental during the whole of the period ending on 15 October 2015. [28] By conceding that the plaintiffs were liable to compensate Kaymet for its claimed loss of rental (subject only to the question of a set off), the plaintiffs conceded each of the three matters identified by the High Court in European Bank. [29]
This conclusion is confirmed by the express statements of the plaintiffs' counsel. He confirmed to the primary Judge that the plaintiffs were not putting in issue that Kaymet would have leased the apartments. He also expressly accepted that it was reasonably foreseeable that Kaymet would have leased the apartments but for the injunction. In answer to a question from his Honour, the plaintiffs' counsel stated that it was irrelevant to their argument whether or not Kaymet would have sold the apartments.
The primary Judge understood the concessions in the way I have interpreted them. His Honour said that the parties were agreed that, but for the injunction, Kaymet would have rented out the apartments and derived the net rentals it claimed as compensation for losses caused by the grant of the injunction. [30]
As the High Court explained in Air Express and European Bank, it is essential to a defendant's claim for compensation based on an undertaking as to damages that the claimed losses are causally related to the grant of the injunction. If the losses would have occurred in any event, as in Air Express, it would not be just and equitable to award compensation to the defendant.
In the present case, there was no dispute that it was just and equitable for Kaymet to be compensated for its loss of rental income. That loss was a result of the injunction and was reasonably foreseeable when the injunction was granted. The issue that the primary Judge had to determine was whether it was just and equitable, in assessing the quantum of compensation, to offset the capital gains that accrued to Kaymet after the injunction was granted.
It may well have been just and equitable to offset Kaymet's capital gains against its loss of rental if the gains (like the losses) were causally related to the grant of the injunction. But the concessions made on behalf of the plaintiffs, as the primary Judge found, established that Kaymet would have received the benefit of the appreciation in value of the apartments whether or not the Court granted an injunction restraining it from selling the apartments. The primary Judge, therefore, did not err in concluding that, in the particular circumstances of this case, it was just and equitable to compensate Kaymet for its loss of rental income and that no set off was required for the unrealised capital gains.

Churnin

The appellants' argument in this Court and the plaintiffs' argument before the primary Judge interpreted the judgments of Young CJ in Eq in Churnin as establishing that realised capital gains must be taken into account when assessing just and equitable compensation for losses attributable to the grant of an injunction which is subsequently dissolved. The primary Judge seemed to accept this interpretation, although his Honour may have merely been reflecting the contentions put to him.
In my view Churnin does not stand for the proposition the appellants attribute to it. Somewhat simplified, the facts were as follows:

In March and April 1999, the defendant entered into contracts to sell units off the plan to the plaintiffs.
The contracts were subject to registration of the strata plan, an event which did not occur until 19 November 2002.
At some point prior to 29 October 2001, the defendant purported to rescind or terminate the contracts.
On 29 October 2001, the plaintiffs, on giving an undertaking as to damages, obtained an injunction restraining the defendant from reselling the units.
The injunction was dissolved on 22 December 2003.
The defendant subsequently resold all the units for substantially more than the capital price.
Had there been no injunction, the defendant would have resold the units and received the proceeds of sale by 30 June 2003.
In fact the defendant did not complete the contracts for the resale of the units until 28 April 2004.

In Churnin I, Young CJ in Eq assessed compensation on the basis that the defendant had been kept out of its money for about ten months. After the judgment was delivered, the plaintiffs pointed out that his Honour had overlooked their contention that the defendants' capital gain on the resale should be taken into account. In Churnin II, Young CJ in Eq held that the defendant had suffered no loss by reason of the injunction. The totality of his Honour's reasoning is as follows: [31] "There is little authority on the point as to whether the court should offset gains made by the defendant because of the injunction against the loss suffered by the injunction. There is every reason why one should do so as the aim is to find the just and equitable loss that the defendant has really suffered by the injunction. Furthermore, the only reported case to deal with the point to which I have been referred, Victorian Onion and Potato Growers' Association v Finnigan [1922] VLR 819 at 822 fully supports the proposition. Accordingly, on balance, Pilot suffered no loss by the injunction and thus Pilot's claim for damages must be dismissed."
The key difference between Churnin II and the present case is not that the capital gain in the former was realised while Kaymet's gain was unrealised. The critical difference is that the defendant in Churnin II intended to sell the units as soon as it could do so, while Kaymet intended to retain the apartments and derive income from leasing them. In Churnin II, the effect of the injunction was apparently to delay the defendant reselling the units by about ten months. The defendant's claim for compensation was essentially for the additional cost of borrowing funds during the period of delay and other holding costs.
In Churnin II it was just and equitable to offset the defendant's capital gain against its holding costs because the appreciation in value was regarded as attributable to the injunction. Whether the appreciation in value should have been characterised in that way is perhaps debatable. It may have been open to the defendant to contend, for example, that although it obtained much higher prices for the units than would have been obtained under the original contracts, the increase in value (if any) during the ten months delay occasioned by the injunction was less than the interest charges and other holding costs. That argument, however, was not advanced.
Churnin II does not establish that it is always just and equitable to offset realised capital gains against losses attributable to the grant of an injunction which is later dissolved. Nor does Churnin II establish that it is never just and equitable to do so. Equally Churnin II has nothing to say about whether unrealised capital gains should be offset against losses attributable to the grant of an injunction which is later dissolved. Each case must depend on its own circumstances.

Victorian Onion

Reference was also made in argument to Victorian Onion and Potato Growers' Association Ltd v Finnigan (No 2) [32] (Victorian Onion). In that case an injunction was granted in February 1922 restraining the defendants from selling onions produced on land in Victoria except to the plaintiff, who gave an undertaking as to damages. The injunction was dissolved in April 1922. The price of onions fluctuated wildly throughout the year but between February and about April 1922, the price fell from £7 per ton to under £5 per ton. In the meantime, the defendants sold onions at prices ranging from a low of £4.10 s in April 1922 to a high of £16.
Cussen J, in an ex tempore judgment, declined to award compensation to the defendants. He said that he did not do so "merely by reason of the delay of some months in making the application" but by reason of all the circumstances of the case. [33] However, it is clear that his Honour was influenced by the desirability of "persons who are entitled to make such applications to make them promptly". His Honour pointed out that a party who delays "may run the risk of its appearing that they have suffered no harm, but have gained a benefit by the injunction". [34]
Cussen J's judgment illustrates that in assessing compensation the particular circumstances have to be considered. In that case, his Honour took into account the great fluctuations in the price of onions within short periods and his Honour's view that the defendants "gained a benefit by the injunction". [35] There is nothing in Victorian Onion inconsistent with the conclusions I have reached.

Orders

The appeal must be dismissed. The appellants must pay Kaymet's costs of the appeal.

Endnotes

The appellants (as I describe them) filed both a Notice of Appeal on 30 August 2016 and a Notice of Motion on 7 December 2016 seeking leave to appeal pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW). The Notice of Motion was filed out of an abundance of caution in case, contrary to the appellants' contentions, leave is required.
Qi Wang v Kaymet Corporation Pty Ltd [2016] NSWSC 742 (Primary Judgment).
See NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210 at [23]-[25] (Santow JA, Beazley and Bryson JJA agreeing); cf Hall v van der Poel [2009] NSWCA 436 at [3] (Hodgson JA, McColl and Basten JJA agreeing); Chen v State of New South Wales [2016] NSWCA 177 at [14] (Leeming JA).
Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459.
As has been noted, the injunction was dissolved as from 30 October 2015: see at [15] above. For unexplained reasons, the A4 Document apparently took 15 October 2015 as the date the injunction was dissolved.
[2007] NSWSC 1459 (Churnin I); [2008] NSWSC 831 (Churnin II).
(1981) 146 CLR 249; [1981] HCA 75.
(2010) 240 CLR 432; [2010] HCA 6.
Air Express at 260.
(2006) 226 CLR 486; [2006] HCA 38 at [30]-[31] per curiam.
Air Express at 311-312.
Griffith v Blake (1884) 27 Ch D 474 at 476 (Baggally LJ, Cotton and Lindley LJJ agreeing), followed in Air Express at 261-262 (Aickin J). See also at 310 (Barwick CJ), 319-320 (Stephen J), 322-323 (Mason J).
Air Express at 261-262 (Aickin J).
An ex parte injunction was initially granted to restrain the Commonwealth from granting an import licence for the aircraft. Air Express Ltd was subsequently added as a defendant: Air Express at 252-253.
Air Express at 324-325.
Air Express at 266-267.
European Bank at [18].
European Bank at [14].
European Bank at [16], citing Air Express at 324 (Mason J).
European Bank at [17].
European Bank at [6].
European Bank at [6].
European Bank at [7].
European Bank at [8]-[9].
European Bank at [20].
European Bank at [29].
European Bank at [29].
It is, in theory, possible for a proprietor of land to sell subject to a lease and to agree with the purchaser to continue to receive the rental income for a period. However, neither party has suggested this as a realistic possibility in the present case.
See at [42] above.
Primary Judgment at [5].
Churnin II at [16]-[17].
[1922] VLR 819;28 ALR 413.
Victorian Onion at 823.
Victorian Onion at 823.
Victorian Onion at 822. 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. Decision last updated: 28 March 2017

Solicitors: SHL & Associates Lawyers (Appellants) Alphonse & Associates (Respondents) File Number(s): 2016/195054 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2016] NSWSC 742 Date of Decision: 30 May 2016 Before: Hammerschlag J File Number(s): 2013/196153

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