170 CLR 394
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District180 ALR 448
Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65
Judgment (7 paragraphs)
[1]
Background circumstances
The application comes to the Court in the following circumstances. On 14 October 2010, this Court delivered its principal judgment in a successful appeal by Macquarie against a decision of Nicholas J: Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268. Following delivery of the principal judgment, the parties submitted short minutes of order, which were largely agreed. The Court made orders on 13 December 2010 allowing the appeal, set aside certain orders made by the trial judge and in lieu, relevantly, made the following orders:
4(1) Judgment and an order for possession by the appellant of Lot 11 in DP 809663 ("the car park site") and Lot 12 in DP 809663 ("the hospital site");
4(2) Judgment for the cross-appellant (the cross-claimant) against the cross- respondent (the cross-defendant) for $389,207.34 plus interest.
…
4(13) Order that there be an enquiry before a Judge or Associate Judge other than Nicholas J as to the amount of damages which are payable by the respondent to the appellant, or an account of moneys received by the respondent (which account would include both revenue received and reasonable expenses incurred and rental from 1 December 1999), at the appellant's election, in respect of being kept out of possession of the car park site and the hospital site between 17 March 2000 and the date of being restored to possession.
[Emphasis added.]
The Court also made the following orders:
6. Stay the operation of the judgment in 3(2) [sic 4(2)] above, including any form of enforcement of such judgment, until the conclusion of the enquiry or further order of the Court.
7. Stay the operation of the balance of the orders:
(1) for 28 days after date of making of these orders unless within that time an application for special leave to appeal to the High Court of Australia is filed;
(2) until further order, but subject to any order of the High Court of Australia, if within 28 days after the date of making of these orders an application for special leave to the High Court of Australia is filed;
provided that, for the purposes of the enquiry, the date of being restored to possession shall not operate until any stay of the order for possession in order 3(1) [sic 4(1)] above has been lifted.
…
9. Liberty to apply on two working days' notice to Hodgson JA's associate and the solicitor for the other party.
On 10 June 2011, the High Court of Australia refused the Health Service's application for special leave to appeal the decision of this Court.
Macquarie subsequently elected for an inquiry as to damages, and that inquiry has proceeded before Kunc J. It seems to be common ground that the inquiry has now concluded and his Honour has reserved judgment.
One issue ventilated on that inquiry is the period over which damages is to be assessed in respect of Macquarie being kept out of possession of the two sites. The issue seems to be whether Macquarie is confined to damages for the period from 17 March 2000 to 14 October 2010 (when this Court delivered its principal judgment) or should the period of assessed damages extend up until judgment in the inquiry, absent the Health Service discharging the stay and vacating the properties before judgment is given. Macquarie's contention before Kunc J was that the effect of this Court's orders on 13 December 2010, is that the Health Service may keep the benefit of possession of the two sites in return for damages at the inquiry being assessed as if the trespass by the Health Service was continuing until possession is restored.
The Health Service contended before Kunc J that the stay order made on 13 December 2010 (order 7) was lifted by operation of order 7(2), when the special leave application was refused by the High Court.
Macquarie took the position before Kunc J that while the stay was in place, and because it was expressed to be "until further order", its claim for being wrongfully kept out of the properties continued until it was given possession by the Health Service. Macquarie pointed to the observation by Kunc J in an earlier interlocutory judgment that, by agreement, the parties accepted in practical terms this meant the date of his Honour's final judgment on the inquiry: see Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd (No 6) [2014] NSWSC 1549 at [7].
Nonetheless, counsel for Macquarie acknowledged on this application that in closing submissions before Kunc J on 30 July 2015, Macquarie had accepted that there was no binding contractual agreement that the stay would not be lifted until judgment was given on the inquiry, but had asserted there was an estoppel to that effect, based on the principles in Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 or Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; 69 NSWLR 603. Counsel further accepted before Kunc J that the Health Service could give notice of change of its position, and a reasonable period of notice to enable Macquarie to prepare for an orderly transition of possession of the sites would be 3 months, expiring on 1 November 2015. The Health Service reserved its rights before Kunc J on 31 July 2015 to contend that the period of notice should be a shorter period.
Thereafter correspondence ensued between the Health Service and Macquarie in relation to the steps and timing required to facilitate the Health Service giving Macquarie possession of the car park site and the hospital site. On 31 July 2015, Macquarie sent a letter to the Health Service stating its intention to meet within the next two weeks to plan that process. That letter asserted that it would be necessary for an application to be made to this Court to make appropriate orders.
The Health Service responded by letter dated 13 August 2015 that it was unnecessary to obtain orders of this Court to facilitate the transition of the two sites to Macquarie. The Health Service proposed that Macquarie retake possession by 28 August 2015.
Macquarie responded by letter dated 20 August 2015 stating that it had been advised that the stay of the order for possession made by this Court was still on foot and that in order for the stay to be lifted and for Macquarie to take back possession of both car park and private hospital sites, the Court must lift the stay.
On 1 October 2015, the Health Service filed a notice of motion seeking an order that the stay of the orders made by this Court on 13 December 2010 for possession by Macquarie of Lot 11 DP809663 and Lot 12 DP809663, to the extent that it is still on foot, be dissolved or lifted.
[2]
Disposition of application
On the hearing of the notice of motion, counsel for Macquarie initially sought an adjournment.
The stated ground for the adjournment was to provide time for Macquarie to file and serve affidavit evidence in support of its contention that the stay should not be lifted immediately because, if there was any delay in the Health Service providing possession of the properties once the stay was lifted, Macquarie might be precluded from making a claim for damages, or for an occupation rent, in respect of the period between the date the stay was lifted and the date the Health Service gave Macquarie possession of the two properties. The concern expressed by counsel for Macquarie was that on one view, the terms of the inquiry as to damages ordered by this Court on 13 December 2010, might not permit a claim for damages by Macquarie in respect of any period of possession by the Health Service after the stay is discharged.
There are two difficulties with this contention. The first is that if the Health Service does not give up possession of the properties upon the stay being discharged, Macquarie could enforce the judgment for possession in the usual way by applying for the issue of writs of possession. Any claim by Macquarie against the Health Service for damages, or an occupation rent, for being kept out of possession of the properties after the stay was discharged could be pursued in the usual manner on an inquiry as to damages. If, as Macquarie seems to apprehend, the terms of the inquiry as to damages ordered by this Court on 13 December 2010 might not permit such a claim to be made by Macquarie on that inquiry, that is not a sufficient reason for not discharging the stay.
The second difficulty is that, in any event, there was unchallenged affidavit evidence from the solicitor for the Health Service, given on information provided by Dr Teresa Anderson, the Chief Executive of the Health Service, that the Health Service is ready, willing and able to hand back possession of the car park site and the hospital site to Macquarie. This evidence is consistent with the position of the Health Service expressed in the correspondence referred to above. The only thing preventing the Health Service giving up possession of the sites to Macquarie is Macquarie's insistence that the stay of the order for possession be lifted before the Health Service gives up possession.
Ultimately Macquarie did not press its application for an adjournment. Instead it tendered a folder of documents (Exhibit 1) and a letter from Macquarie to Dr Teresa Anderson of the Health Service dated 9 October 2015 (Exhibit 2) in support of its contention that an immediate discharge of the stay order would be detrimental or prejudicial to Macquarie. It was contended that any discharge of the stay order should not take effect until Monday 2 November 2015. This is the first business day after the expiry of the 3 month period referred to in Macquarie's submissions on the estoppel argument before Kunc J.
[3]
Estoppel argument
Macquarie contended that there was a "standstill agreement" between the parties, arrived at after this Court's orders of 13 December 2010, that the stay of the order for possession would not be lifted until the conclusion of the inquiry as to damages before Kunc J. Counsel for Macquarie accepted, as he had done on the inquiry before Kunc J, that the so-called standstill agreement was only relied upon to support an estoppel, rather than a binding contractual agreement, and that either party could withdraw from the "agreement" upon giving reasonable notice.
It was contended by Macquarie that a period of reasonable notice was required to effect the orderly handover of possession of the car park site to Macquarie having regard to the operational parameters of the car park. Reference was made to the need to make arrangements for security services; cleaning services, communication strategy; occupational health and safety and risk management; rental payments; allocation of car parking spaces to hospital staff; hospital staff car parking rates; mechanisms for the billing, payment and collection of parking fees; use of New Hospital Road; signage; and third party licences or agreement for existing car park services.
In addition, Macquarie pointed to the need to transfer operational equipment associated with the car park including boom gates, access control system to the boom gates, CCTV systems, traffic light management programs and software components for the car park infrastructure.
It is unnecessary to determine the merits of either Macquarie's estoppel argument, or what would be a reasonable period of notice for the Health Service to withdraw from the so-called "standstill agreement". The question whether the stay of the order for possession should be lifted, and whether on terms including as to timing, involves a discretionary judgment of what is appropriate and in the interests of justice in all the circumstances: Re Sinanovic's Application [2001] HCA 40; 180 ALR 448 at [7] (Kirby J).
[4]
Orderly transition of the properties
Having regard to the operational requirements of the car park site referred to above, it is in the interests of both parties that there be an orderly transition of the control of those operations from the Health Service to Macquarie. It is evident that Macquarie is not presently in a position to assume operational control of the car park site. Macquarie seeks a period of 3 weeks to make the necessary arrangements for the transfer of the operations, before the Heath Service gives up possession upon the discharge of the stay. No submission was made by the Health Service that such a period of time was either unreasonably long or otherwise unnecessary to facilitate the transfer of the car park operations.
In my view, the stay should be discharged on 2 November 2015.
In reaching this conclusion I have taken into account need for Macquarie to make the necessary operational arrangements referred to above and deal with the users of the car park site, including hospital staff and doctors, and with third party service providers. I have also taken into account the absence of any submission by the Health Service that it would suffer prejudice if the stay (which has been in place for nearly 5 years) was not lifted immediately.
I accept the unchallenged evidence that the Health Service is ready, willing and able to hand back possession of the two sites to Macquarie. In these circumstances, no case has been made out by Macquarie for attaching any further conditions to the discharge of the stay along the lines sought by Macquarie in its letter to the Health Service dated 9 October 2015.
[5]
Costs
As to costs of the motion, they should follow the event. The Health Service has been successful in obtaining the discharge of the stay. Macquarie took a position in correspondence which required the Health Service to bring the matter to Court rather than agree to a consent order to discharge the stay. Macquarie also initially sought an adjournment of the motion to prepare material to oppose the relief sought, and the position it ultimately adopted on the motion (which was a significant departure from the undertakings sought in its letter to the Health Service of 9 October 2015) was not articulated until well into the hearing of the application.
[6]
Orders
Accordingly, the orders of the Court are as follows:
(1) Stay ordered by this Court by order 7(2) made on 13 December 2010, be discharged with effect from 9.00 am on Monday 2 November 2015.
(2) Respondent (Macquarie) to pay the applicant's costs of the notice of motion filed on 1 October 2015.
[7]
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: 15 October 2015
Parties
Applicant/Plaintiff:
Macquarie International Health Clinic Pty Ltd
Respondent/Defendant:
Sydney South West Area Health Service
Cases Cited (6)
Judgment
HIS HONOUR: Before the Court is an application by the respondent, Sydney South West Area Health Service (Health Service), to dissolve an earlier order of this Court made on 13 December 2010 staying the operation of a judgment and order for possession by the appellant, Macquarie International Health Clinic Pty Ltd (Macquarie), of two parcels of land at Camperdown referred to as 'the car park site' and 'the hospital site': Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 348.