Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd [2007] NSWSC 98 | Case summary

6315/06 - NORTHERN STAR AGRICULTURE PTY LTD v MORGAN AND BANKS DEVELOPMENTS PTY LTD JUDGMENT 1 HIS HONOUR: This is an application for an interlocutory injunction by a person who allegedly holds a right of pre-emption over land at Tweed Heads to prevent the current proprietor of that land selling it to a third party. 2 The plaintiff relies on the provisions of a document entitled "Development and Profit Share Agreement" bearing date (unhelpfully near the top of page 20) 11 December 2003 and purportedly executed as a deed. 3 The document appears to suffer the defect of being cobbled together from different precedents and contains some internal inconsistencies. I will examine detailed clauses shortly. However, it is useful first to take an overview of the document. 4 The document notes that the defendant is to become the owner of property at Tweed Heads (hereafter the Property). It notes that the plaintiff introduced the defendant to the Property and acknowledges that the defendant will pay the plaintiff a "fee" equal to 50% of the Project Profits. 5 Under the document, the defendant is to provide all the capital and is to provide its expertise and to bear all the risk. The plaintiff is also bound to provide its expertise by participating in the Project Control Group. 6 Clause 2.4 provides that "Subject to clause 7, no interest in the Property is created in favour of the plaintiff by this document." 7 Clause 7.5 is a provision that the plaintiff has a caveatable interest in the Property and may therefore lodge a caveat to protect its interest under the document. No other right of property is conferred on the plaintiff by clause 7. 8 The plaintiff lodged a caveat to protect its interest on 14 September 2005. 9 Clause 13 provides that the terms of the document are to cease when the defendant no longer owns any part of the Property. 10 Clause 15 is the vital clause for present purposes. Clause 15.2 deals with an assignment by the defendant to a related corporation. I do not need to repeat its terms. The balance is as follows: "15.1 Except as specified to the contrary in this document and subject to the Approved Mortgages, none of the rights or obligations under this document may be assigned or transferred without the prior written consent of all the parties. 15.3 Except if clause 15.2 applies, if MBD proposes to sell the Property to a third party MBD must first offer to sell the Subject Property to NSA by written notice specifying the terms of proposed of [sic] sale including the sale price for the Subject Property. The offer remains open for acceptance by written notice for 21 days after the date the notice is given. 15.4 If the NSA accepts the offer, the sale of the Subject Property to the NSA at the specified sale price and terms must be completed within 90 days of the end of the offer period. 15.5 If the NSA does not accept the offer, MBD may transfer its rights and obligations under this document and sell the Subject Property to a third party within 45 days of the end of the offer period on terms that are not more favourable to the third party than the terms the subject of the offer to the NSA including without limit at a price that is not less than the price contained in the offer to NSA." 11 It would seem that in 2006 the defendant gave a notice that it intended to sell, but nothing came of it. 12 On 9 November 2006, the defendant's solicitor gave the plaintiff three documents, viz: (1) a notice that it intended to sell the Property to Smart Oasis Pty Ltd on certain terms; (2) a copy of the draft contract; and (3) a covering letter. 13 On 8 November 2006, the defendant also entered into a call option with Smart Oasis Pty Ltd. Clause 2.3.1 of the call option noted that a third party had been granted a right of first refusal over the Property. 14 The option was purportedly exercised by Smart Oasis. 15 In an earlier episode in these proceedings, the plaintiff applied to extend its caveat whose existence had been threatened by a lapsing notice. 16 Hall J dismissed the plaintiff's application for reasons he gave on 12 January 2007, [2007] NSWSC 2. 17 On 10 January 2007, the plaintiff filed an amended notice of motion by which it applied for a further order that an injunction be given to restrain the defendant from entering into or completing any contract of sale of the Property to Smart Oasis. The defendant objected to the new claim being agitated on 10 January. Hall J adjourned it: it came on before me as Duty Judge on 5 February 2007 and again briefly on 9 February 2007. 18 Between the time Hall J dealt with the case and it coming on before me, Smart Oasis Pty Ltd was added as a second defendant. I have called the original defendant, "the defendant", and the second defendant "Smart Oasis". 19 When the case was presented to me, Mr J B Simpkins SC and Mr T W L Stuart appeared for the plaintiff, Mr R R I Harper SC and Mr A Gee appeared for the defendant and Mr P E King appeared for Smart Oasis. 20 As is clear from all the modern authorities, in order to obtain an interlocutory injunction a plaintiff must establish: (1) that it has an arguable case; (2) that the balance of convenience justifies the grant rather than the refusal of an injunction; and (3) that damages are not an adequate remedy: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153. These three heads are not independent one of the other as a strong score under one head may make up for a low score on another. 21 Further, it must be borne in mind that these three headings are really a guide. It has often been said that the statute gives a general discretion to the court as to whether or not it will grant an injunction and that such general power is not to be constrained by strict verbal formulae; see eg Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208, 215. 22 In Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, 535, M H McLelland J summed up the situation as follows: "Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled ... ."

25 Where the disputed question is not one of fact, but rather one of pure law or construction, there is authority that it is the duty of the judge to decide the questions. As Powell J said in MCP Muswellbrook Pty Ltd v Deutsche Bank (Asia) AG (1988) 12 NSWLR 16, 30: " a pure question of law, or a question of law based on facts which, at the time, are not in contest, it is the duty of a judge to decide that question, and, further, it is in the interests of the parties that he do so." 26 However, the preponderance of authority is that it is a matter for the exercise of the discretion of the judge whether he or she will decide questions of pure law or construction finally or not: see Nuhan Ltd v Jewel Superannuation Fund Pty Ltd [1980] 2 NSWLR 304, 309; Karaguleski v Vasil Bros & Co Pty Ltd [1981] 1 NSWLR 267, 269; Segulin v Car Owners Mutual Insurance Co Ltd (Needham J, 4.7.1984, unreported); Hortico (Australia) Pty Ltd v Energy Equipment Co (Australia) Pty Ltd (1985) 1 NSWLR 545, 549; Cohen v Peko-Wallsend Ltd (1986) 68 ALR 394, 397; 61 ALJR 57, 59; Australian Postal Corp v Gray (1989) 98 FLR 468, 472-4. 27 In my experience, when there are questions of law or construction on an interlocutory application for injunction, the judge usually decides them finally. However, the discretion not to do so will usually be exercised in two types of situation: (1) where there is insufficient time for the proper consideration of the matters raised; and (2) where the full surrounding circumstances may be relevant to the questions. 28 Proceedings for removal or extension of a caveat are in much the same plight. 29 The reason why I have spent a little time in stating these principles is that the plaintiff has already lost a similar application before Hall J. It will be necessary in this judgment to analyse his Honour's reasons to determine whether he did or did not decide matters on a final basis, and, if he did not, whether principles of comity mean that on the present application, I should adopt his findings. 30 Mr Simpkins submitted that the plaintiff had two proprietary rights in the Property: (1) an equitable charge; and (2) and equitable right that came into existence when the right of pre-emption was triggered. 31 Mr Harper says that Hall J has already held that there is no equitable charge and that that is the end of the point. He also says that Hall J held that any right stemming from the pre-emption clause came to an end before the end of 2006. Indeed, his Honour appeared to hold that the parties had each recognized that there was no prospect of the project, the subject of the document, being carried out. 32 It is thus necessary to analyse Hall J's judgment to see what it in fact decided and to consider principles of issue estoppel and res judicata flowing from a judgment on an application to extend a caveat. 33 Hall J at [55] -[58] set out the question he had to decide under s 74K of the Real Property Act 1900, that is, whether the plaintiff's caveat has or may have substance. He noted that the principles to be applied were much the same as when the court is considering an interlocutory injunction. 34 His Honour then turned his mind to the question as to whether there was an equitable charge. 35 His Honour said at [70] and [76] (Mr Underwood was the then counsel for the plaintiff): "[70] The effect of that evidence is that the parties no longer intend to develop the property and no issue, in that respect, was raised by Mr Underwood on this application. In other words, the evidence does support the conclusion that the parties reached a stage whereby the property was to be sold and not developed under the Agreement, the remaining questions being, inter alia, at what price and to whom … . [76] Although the agreement may not have been formally terminated, it is, by reason of the evidence I have referred to earlier, clear that the parties have reached the position where they have agreed to abandon the proposed development envisaged by the Agreement." 36 His Honour decided on agreed facts that there could be no profit flowing from the document in all the circumstances and thus there could be no charge. 37 In my view that was a final determination of the point. 38 His Honour then turned to the pre-emption point. He held that if there was any equitable interest that came into being when the pre-emption clause was triggered, it ceased no later than 30 November 2006. 39 Again, this appears to me to be a final determination of the point. 40 Mr Simpkins put that if a decision is "truly" interlocutory in nature and not final, there can be no issue estoppel. He cites Schlieske v Minister for Immigration and Ethnic Affairs (1987) 79 ALR 554, 574. I would not disagree with that submission. 41 Mr Simpkins then proceeds to acknowledge that a decision can be made on an interlocutory application which is final and conclusive. However, he puts that the proper approach to this type of decision is to ask whether it is reasonable to regard the earlier decision as a final determination of the issue that one of the parties wishes to raise again. He cites in support the Full Federal Court decision in Makhoul v Barnes (1995) 60 FCR 572 and the decision of Cooper J in Re Martin; Ex parte Amtron Australia Pty Ltd (1996) 62 FCR 438. 42 I can accept in general what the Federal Court said in those cases, though not every thought expressed by every judge. However, the test is whether a reasonable construction of the interlocutory judgment shows that a point has been the subject of a final determination rather than whether it is reasonable for a party to seek to have another try. 43 The decision of the New Zealand Court of Appeal in Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37, which on the facts is similar to the present case, was cited to me. My view is that in the present case, where Hall J made clear findings, that case reinforces the view that there is an issue estoppel. 44 In my view on the true construction of Hall J's reasons, he has determined the present point on a final basis. 45 Mr Simpkins says that, even were I to come to this view, in my discretion, I could still proceed to redetermine the point. This is theoretically correct, see Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322 [418] following Arnold v National Westminster Bank plc [1991] 2 AC 93. 46 However, there must be some good reason for the court to exercise such a discretion: none has been demonstrated in the instant case. 47 In my view the determination of Hall J on the extension of caveat application means that the present application must also fail. 48 If I were wrong in the above approach, the same result seems to me to follow from alternative approaches to the problem. 49 Mr Simpkins says that "It is now clearly established that successive applications of an interlocutory nature can be made provided that there is no abuse of process involved." He cites the decision of the Court of Appeal in Nominal Defendant v Manning (2000) 50 NSWLR 139. 50 The submission is correct and the basic proposition was affirmed by the subsequent decision of the Court of Appeal in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315, but the sting in the tail is "provided that there is no abuse of process involved". 51 The judgments in the Manning case made it clear that with one proviso, the Court of Appeal accepted the line of decisions in this Division and the Common Law Division that, as a general rule, the court expects that people will not make successive interlocutory applications but will marshal their best case for a single presentation and the court may well, in its discretion, dismiss any subsequent application as an abuse of process. The line of decisions to which I refer include Brimaud v Honeysett Instant Print Pty Ltd (M H McLelland J, 19.9.1988, unreported) but the vital part is reproduced in the judgment of Foster AJA in the Manning case at 161 and Wentworth v Rogers (Sperling J, 28.4.1995, unreported) but noted (1996) 70 ALJ 613. 52 The qualification was that that practice was not a rule of law, it was only a general rule and the court must be careful as to when to apply it. However, it may well be appropriate to apply it unless there were factors pointing to the fact that it would be unjust to do so. 53 There would be a number of such factors. One would be if fresh facts had arisen, another would be where the parties had agreed that a preliminary skirmish would bind them for a limited time only so that both sides would have time to prepare. It is idle to list further possibilities. 54 The general practice is reinforced by the policy that litigation must be dealt with efficiently and that all questions should be dealt with together. A person seeking an interlocutory injunction must usually put all of his or her cards on the table during the one and only application and cannot hold some back for another go before a different judge. 55 In the present litigation, the injunction case should have been presented at the same time as the application was made for the extension of the caveat. In the circumstances, I cannot see anything in the exigencies of it being vacation time that impinges on the situation. The case appeared to be fully presented to Hall J. 56 Thus, in the instant case, there was a fully argued interlocutory application before Hall J who considered the large number of contentions raised and ruled on them in a learned reserved judgment. I cannot see any factors which would make it just to proceed other than in accordance with the usual practice and so am disinclined to enter again into the issue of whether there is a charge in favour of the plaintiff. 57 In any event, it is fairly clear, as Hall J noted, that there is no equitable charge in the instant case. The decision of the Court of Appeal in Troncone v Aliperti (1994) 6 BPR 13,291 does not support the proposition that whenever there is the grant of a right to lodge a caveat, there is automatically a grant of an equitable charge. At its highest it says that in the ordinary case, if there is nothing more, a court can presume such a grant. However, here, apart from other factors, we have an express clause (2.4) which denies the plaintiff any proprietary right in the land. Although cl 2.4, is subject to clause 7, that does not necessarily mean that it recognises that a property right is conferred by cl 7. Hall J discussed the relevant principles of law and his decision was clearly correct. 58 The plaintiff then says that even if it is precluded from raising the equitable charge point again, it has a further equitable interest and that is, that upon its right of pre-emption being triggered, it obtained what might be called an equitable proprietary right in the nature of a quasi option. 59 Mr Simpkins says that Hall J did not consider this aspect of the case. Mr Harper disagrees. 60 In my view, based on [81] et seq of Hall J's judgment, Mr Harper's view is correct. It would seem that whilst Mr Underwood said at times that he was not relying on this equity, he in fact relied on it and Hall J decided the point. Hall J's decision was that if there was such an equity, it had ceased to exist by 30 November 2006. 61 Because I have reached this view, there is no need for me to go further and deal with the so-called "merits" of the plaintiff's claim. In case the matter goes further, however, I will briefly consider them. 62 The key points in the dispute are: (a) whether the right of pre-emption was triggered and by what; and (b) whether cl 15.5 requires the defendant when selling the land to assign the burden of the agreement with the plaintiff at the same time. 63 As to point (a), it is unnecessary to enter into the debate as to whether on a right of pre-emption being triggered, an equitable right equivalent to an option springs up. On the authorities, whilst it is clear that a right of pre-emption alone creates no interest in land, on such right being triggered, such a right may spring into existence. 64 However, here again, one must not fall into the trap of saying that just because there is a right of pre-emption and just because the event for its exercise has occurred, that an equitable right springs into being. 65 Most of the significant cases on the subject were listed by Campbell J in Sahade v BP Australia Pty Ltd (2004) 12 BPR 22,149, 22,158 at [41]-[42] to which one should add Auckland Regional Services Trust v Palmer [1996] 3 NZLR 752. Generally the cases say that one must carefully read all the relevant documents before reaching the conclusion that an equitable interest in land has been created. Indeed, in Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510, I noted the correct proposition at p 526 as "it may be in certain circumstances that one can say that the grant of such right together with the contingencies which have happened will mean that there has been by those combined actions the grant of an option". 66 In Sahade, Campbell J again emphasised the necessity of paying close attention to the terms of the relevant documentation when considering whether a quasi option had been conferred. 67 In the light of clause 2.4 (particularly bearing in mind that that sub-clause contains no reference to cl 15, but only to clause 7 dealing with the right to caveat) and the difficulties referred to in the succeeding paragraphs of these reasons, it is extremely doubtful that this document even in the light of a triggering event created any interest in land. In my view it did not. 68 However, even if the preceding paragraph were wrong, the argument based on the triggering of the right of first refusal must in any event fail. 69 This is because if the triggering event was the desire to sell (The First Possibility), the desire was expressed 21 days before 30 November. Any right thus ceased on 30 November. If the right were to run from the submission of the purported offer made to the plaintiff (The Second Possibility), again, the right ceased by 30 November. 70 The Third Possibility is that the right commenced on the making of a formal offer referring to a particular contract complying strictly with the document. On the plaintiff's own case, this has not occurred and thus the right has not yet been triggered. The plaintiff may have a personal right which may ground an injunction, but no proprietary right. 71 For the reasons set out earlier, there is insufficient evidence to show me that there is an arguable case that there is any such personal right that would justify the grant of an injunction. 72 If I needed to choose between the possibilities, I would say that the argument that the expression of a desire to sell triggered the plaintiff's right is hard to run in light of the terms of the deed. 73 Mr Harper's written submissions, which I will leave with the papers, well shows up the difficulties in implementing the document if this were the case. In particular, is the pre-emption right spent as soon as the defendant expresses an intention to sell on particular terms? For how long does it remain alive? 74 I consider that the most likely construction is the second. I do not consider that in a commercial document of this nature, there must be a precise dotting of every "i" and crossing of every "t". So long as there is a clear indication of the desire to sell and a clear indication of the terms and a notice to the plaintiff, then time starts running for the implied option (if any) to be exercised. Any debate as to the precise terms of the contract that the plaintiff is to enter into can be the subject of debate or court action during the option period, but the plaintiff cannot just let the period expire without exercising that option. 75 I now briefly turn to heading (b) which involves the construction of cl 15.5. I have set out the clause above. The two possible constructions are that the defendant may only sell the Property if it also assigns the rights under the document to the purchaser. The other view is that the rights are alternative. 76 In view of my other findings, the answer is academic and I will not devote too much time to it. However, I prefer Mr Harper's submissions that the latter construction is the correct one. In particular, the submission that the parties could never have intended that, should the project fail, the property could never be sold unless the plaintiff, who had given no real consideration, consented, seems unanswerable. 77 I will now deal with peripheral matters and consider the other elements necessary to consider before ruling on this sort of application. 78 First, I should note that, although it was only obliquely argued, there is considerable mileage in the point that as the plaintiff never gave any valuable consideration for its rights under the document, it is to be regarded in equity as a volunteer, and, generally speaking, "Equity does not assist a volunteer". 79 The plaintiff has been reimbursed for all its expenses on the project. The only 'real' consideration is its efforts to find the site for the defendant. This probably is no consideration in equity. No reason has been shown why the maxim should not apply to put the plaintiff out of court. 80 As to balance of convenience, the plaintiff says that if the Property is sold to Smart Oasis, it will lose the opportunity to resell the Property at a great profit to a buyer it has in the wings. The plaintiff reopened its case to show that it has a serious buyer who might make a bid for the land. On the other hand, if an injunction were granted, the defendant will not be able to complete its contract, it may be liable in damages and it will continue to suffer loss through the project. 81 In my view the balance of convenience tells against the grant of an injunction. 82 As to whether damages are an adequate remedy, it must be noted that it was common ground before Hall J that the project contemplated by the document for the development of the Property could not be implemented and that the only course was for the Property to be sold. 83 Once this is appreciated, there is no problem with calculating damages. 84 The plaintiff says that it will lose the profits on resale. However, these can be easily calculated. 85 As to the element of whether damages might be an adequate remedy, I agree with what Brereton J said in Goyal v Chandra [2006] NSWSC 239 at [42]: "It is sometimes said in applications for interlocutory injunctions that one consideration is whether damages would be a sufficient remedy. Properly understood, the real question is whether final injunctive relief would be declined because damages would be a sufficient remedy; if it can be seen at the interlocutory stage that that would be so, then an interlocutory injunction would be declined." 86 This is a further reason for declining to give interlocutory relief in the present case. 87 Thus, whichever way one looks at the case, the plaintiff fails on this interlocutory application and it must be dismissed with costs. 88 After the majority of the above had been written, the Court was informed that the plaintiff had lodged a further caveat. It will be necessary to give supplementary reasons after I have heard argument as to whether that caveat should be removed. 89 The present is an interlocutory application. It is rare these days for such an application to have to be determined as the practice is that an early final hearing of urgent injunction cases can usually be arranged. 90 I thought that that could occur in the instant case. However, the defendant required its application for security for costs to be heard before the final hearing. Normally, if such an application can be summarily disposed of in a short time, I would deal with it on the spot. However, from a cursory examination of the solicitor's affidavit in support, the present application for security for costs looked to be grossly inflated. 91 The present case is a relatively simple one for experienced commercial lawyers. However, the defendant's solicitor, a suburban solicitor, asserted that it was proper to brief senior and junior counsel on an application for security for costs and with counsel's fees and with his own the estimated costs he would bill $15,000. He would charge about $26,000 for his own work in preparing the case, despite the fact he had senior and junior counsel briefed and $2500 (including counsels' fees) for 3 directions hearings. Obviously if that affidavit were read, there would be long cross-examination of the solicitor as to his fees and professional competence, and this was not a matter which I could deal with in a duty judge period. I thus had to deal with the application on an interlocutory basis. 92 The court must now make provision for the continuation of the case. The motion for security for costs will need to be fixed before a Registrar and, when that and other interlocutory skirmishes are over, the Registrar will doubtless place the case in the general list call over. 93 All I need do at this stage is to dismiss the motion for interlocutory injunction with costs, order the return of the exhibits and list the case for mention before the Registrar. Unless counsel suggest some other date to me when these reasons are delivered, I will have the matter listed for mention before the Registrar on 1 March 2007 at 9:30 am. 94 There is an interlocutory injunction currently in force. That will be discharged as of 5:15 this evening, to enable the plaintiff to consider whether it will seek leave to appeal. The defendants are to have liberty to institute an enquiry pursuant to the undertaking as to damages provided that a notice of motion to do so is filed no later than 15 March 2007. SUPPLEMENTAL REASONS 95 The motion to remove the most recent caveat came on before me on 14 February 2007. 96 This caveat is in fact the third to be lodged by the plaintiff. The second being exactly as the first removed after Hall J's order and was considered invalid by the Registrar General. 97 The third caveat, although poorly drafted, sought to protect the so called right consequent upon the triggering of the right of first refusal. For the reasons given earlier, such a caveat could not have substance, and its removal was ordered on that day with costs, with reasons to be furnished. 98 I must say that I was concerned that the third caveat was lodged. No interim injunction was sought from me and time and costs were wasted by its filing. It also raises the question (on which I have no more than an uneasy feeling) as to whether the activities of one of the plaintiff's lawyers who appears personally interested in the project has allowed his personal interests to outweigh his professional obligations. 99 Mr Harper also asked for an order that the plaintiff be restrained from lodging further caveats. I did not make that order as I considered that, although the plaintiff's activities in the caveat area have been extraordinarily aggressive, there was no current threat. Indeed, the only bases for caveats would be the two bases that have not been dismissed and the Registrar General's supervision of the workings out of s 74 O of the Real Property Act 1900 is sufficient protection.

Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd

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Judgment (14 paragraphs)

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Cases Cited (18)

Cited By (5)