OORANYA PTY LTD -v- ISPT PTY LTD [2018] WASC 256 (22 August 2018)

(a) under the terms of the lease agreement between Ooranya and Bayswater and the City of Perth, those parties are granted exclusive possession of the Bocelli Espresso Café area for the purposes of conducting a café business;

(b) under the terms of the lease there is no constraint upon the trading hours of the café business. Ooranya and Bayswater are theoretically permitted under the terms of their lease to trade 24 hours a day, although historically under the preceding 19 or so years of their lease occupancy at this site they have not traded around the clock. Prior to 2018 their usual trading hours, which could fluctuate, were roughly between 6.00 am and 5.00 pm with late night trading on Friday nights until approximately 8.30 pm. Beyond that, there would, of course, be the usual preopening and postopening preparatory and close of business cleanup duties for staff before or after customers were served within those hours;

(c) under the terms of their lease the plaintiffs are granted exclusive possession of an area comprising both a covered (café) area and an alfresco area within Forrest Place. The area leased extends to cover vertical space above the Café area to a height of four metres; and

(d) ISPT raises no allegations at all of unlawful conduct by Ooranya or Bayswater as a basis to support its common law economic tort cause of action as seen from its counterclaim. Nevertheless, it relies upon the tort of intentional interference with ISPT's contracts arising out of the conduct of having or procuring persons to be present upon the Bocelli Espresso Café premises in March 2018 and then again in June 2018 - for the contended explicit purpose of preventing Lendlease from progressing works for ISPT under the construction contract, preventing ISPT from progressing the works and preventing the City of Perth from providing ISPT and Lendlease with access to the Bocelli Espresso Café areas in order for them to use all the necessary heavy equipment to install gantry structure(s).

1. One of the primary defensive responses put by the plaintiffs in answering the counterclaim and in resisting the interlocutory injunction sought is, to contend that, in the wake of a 2007 decision of the House of Lords, see OBG Ltd v Allan [2007] UKHL 21; [2008] 1 AC 1, particularly by the reasons of Lord Hoffman absent any establishment by ISPT of a different tort of causing loss by unlawful means (which ISPT does not seek to raise here) that ISPT holds no arguable cause of action against them. This was the basis upon which the plaintiffs originally sought a summary judgment and the dismissal of the ISPT counterclaim; on the basis that the economic tort as pleaded and contended for by ISPT was wholly unarguable. Before turning to those and other arguments, it is necessary to provide some further context.

1. The plaintiffs (Ooranya and Bayswater) commenced an action CIV 1600 of 2018 against ISPT on 5 April 2018. By that action they seek common law damages for the tort of private nuisance alleged against ISPT. This is by reason of alleged noise, dust and vibration associated with all the surrounding construction works now being effected over the Forrest Chase premises and in their vicinity by ISPT and its servants, contractors and agents since 18 February 2018. Under particulars provided at par 7 of the statement of claim as endorsed upon the writ, the plaintiffs complain of the erection of signage and hoardings around the Myer store building and boundary of their leased premises and demolition works through the use of machinery, including jackhammers, excavators and heavy drills.
2. Under par 8 of the statement of claim it is said that construction works are ongoing and occur between the hours of 7.00 am until times past 9.30 am in the morning and then in the evenings commencing at around 5.00 pm and thereafter. Under par 9 it is pleaded that this conduct constitutes a wrongful, substantial and unreasonable interference with the conduct of the plaintiffs' adjacent café business, Bocelli Espresso Café (ie, a private nuisance ongoing tort). This is said to be by reason of the excessive levels of noise, vibration and dust affecting the premises and its clientele, resulting in multiple disruptions, a loss of custom and a trespass by workers as agents of ISPT upon the Bocelli Espresso Café premises.
3. Ooranya and Bayswater, however, have not sought to obtain an interlocutory injunction restraining ISPT's works. In part of the voluminous materials filed on an interlocutory basis in the application it emerges that the plaintiffs would appear to have been sensibly advised that any interlocutory injunction sought by them would require an undertaking as to damages as a pre-requisite to such relief. Their financial exposure arising out of a possible loss at trial upon their private nuisance cause of action might then produce a financially devastating outcome for them longer term. Hence, they only seek a permanent injunction, common law damages and an expedited trial.
4. It may be seen that irrespective of ISPT's economic tort cause of action upon its counterclaim, the plaintiffs can still pursue their subsisting cause of action for private nuisance in respect of which they claim ongoing financial losses arising out of ongoing construction works generally and arising from the ongoing redevelopment works at the Forrest Chase site.
5. Any grant of interlocutory injunctive relief to ISPT upon its counterclaim does not or should not affect the viability of the private nuisance cause of action of the plaintiffs. What ISPT argues for on its counterclaim is something related, but nevertheless a different cause of action.
6. Shortly, I will proceed to list the voluminous affidavit materials sought to be relied upon by the parties respectively on this strongly resisted application for interlocutory injunctive relief as pursued by ISPT on its counterclaim. I should observe, however, that:

(a) hearsay evidence is admissible upon interlocutory applications of the present kind, unlike at a trial;

(b) in assessing the application for interlocutory relief I will essentially proceed upon the basis of what is respectably arguable at this stage. I do not render final determinations of fact or law in the process. That is simply not feasible. Moreover, I point out that by custom in Western Australia witnesses are usually not crossexamined, generally speaking, upon their affidavits filed in support of interlocutory applications such as that presently pursued. Hence, any factual observations I render within these reasons bearing upon the ultimate matters required for determination at trial are to be viewed as necessarily provisional only.

1. In this section of these reasons I identify the affidavit materials relied upon by each of the parties upon the present interlocutory application.
2. The applicant, ISPT, read and relied upon the following affidavits in support of interlocutory relief:

(1) affidavit of Michael D Barr dated 21 June 2018 [court document 42 (358 pages)];

(2) affidavit of Nicholas J De Vries dated 20 June 2018 [court document 44 (639 pages)];

(3) affidavit of Gurukugan Kugananthan dated 20 June 2018 [court document 45 (4 pages)];

(4) supplementary affidavit of Gurukugan Kugananthan dated 26 June 2018 [court document 53 (26 pages)];

(5) supplementary affidavit of Nicholas J De Vries dated 26 June 2018 [court document 54 (5 pages)];

(6) affidavit of Robert E Staniford dated 26 June 2018 [sworn in CIV 2056 of 2018 and read and relied upon on the present application [court document 4 (8 pages)];

(7) affidavit of Nicholas J De Vries dated 9 July 2018 [court document 64 (284 pages)];

(8) supplementary affidavit of Robert E Staniford dated 10 July 2018 [court document 69 (16 pages)];

(9) affidavit of Michael D Barr dated 20 July 2018 [court document 79 (17 pages)];

(10) affidavit of Francesco Agnello dated 6 June 2018 [court document 36 (170 pages)];

(11) affidavit of Francesco Agnello dated 17 July 2018 [court document 74 (87 pages)];

(12) affidavit of Gurukugan Kugananthan dated 30 July 2018 [court document 92 (5 pages)];

(13) affidavit of Michael D Barr dated 30 July 2018 [court document 94 (3 pages)];

(14) affidavit of Nicholas J De Vries dated 30 July 2018 [court document 93 (2 pages)];

(15) affidavit of Michael D Barr dated 31 July 2018 [court document 96 (3 pages)];

(16) affidavit of Gurukugan Kugananthan dated 31 July 2018 [court document 97 (16 pages)];

(17) affidavit of Michael D Barr dated 3 August 2018 [court document 101 (40 pages)];

(18) supplementary affidavit of Michael D Barr dated 6 August 2018 [court document 102 (8 pages)];

(19) affidavit of Michael D Barr dated 8 August 2018 [court document 103 (65 pages)];

(20) affidavit of Michael D Barr dated 10 August 2018 [court document 105 (7 pages)];

(21) affidavit of Michael D Barr dated 13 August 2018 [court document 106 (56 pages)]; and

(22) affidavit of Michael D Barr sworn on 17 August 2018 [court document 113 (26 pages)].

1. As seen there is an unprecedented amount of material relied upon. It emerged slowly over time on a drip feed basis. The last four or five affidavits by Mr Barr were a product of my request for greater clarity about how the Bocelli Espresso Café premises would look following the gantry installation work. ISPT's evidence on this point emerged painfully and slowly to its ultimate end positions: see Annexures A, B and C, which show computer generated drawings produced by Mr Barr for ISPT showing perspectives of how the Bocelli Espresso Café was to present following the so called gantry installation work, and as it progressed. As it emerged even later, these sketches do not show the scaffolding or canvas to be used to cover the scaffolding proximate to the café.
2. One of the affidavits relied upon by ISPT is a further affidavit of Michael David Barr sworn 31 July 2018. That affidavit bears heavily upon and explains the duration of the proposed works as foreshadowed by ISPT and its contractors during and after installation of a gantry or gantries above Bocelli Espresso Café. It is an important affidavit clarifying the scope and potential intrusive effects of the requested interlocutory orders, if made for ISPT.
3. The plaintiffs rely upon the following affidavits in resisting the present application:

(1) affidavit of Francesco Agnello sworn 6 June 2018 [court document 36 (170 pages)];

(2) subsequent affidavit of Francesco Agnello 17 July 2018 [court document 74 (57 pages)];

(3) affidavit of Giuseppe Agnello dated 6 June 2018 [court document 37 (7 pages)];

(4) affidavit of Giuseppe Agnello dated 17 July 2018 [court document 75 (5 pages)];

(5) affidavit of Brandon Leigh Cross sworn 16 August 2018 [court document 107 (19 pages)];

(6) second affidavit of Clara Elisabeth Hagan sworn 16 August 2018 [court document 108 (7 pages)];

(7) affidavit of Giuseppe Agnello sworn 17 August 2018 [court document 111 (10 pages)]; and

(8) third affidavit of Clara Hagan sworn 17 August 2018 [court document 112 (6 pages)].

1. As a part of the plaintiffs' overall materials they indicate their reliance upon pars 11, 12, 22, 30 - 38 and 48 of Mr Francesco Agnello's affidavit of 6 June 2018 and pars 11 and 12 of Mr Francesco Agnello's affidavit of 17 July 2018.
2. I also observe that Ooranya and Bayswater through their lawyers have filed objections against a great many paragraphs of the defendant's affidavit (see court document 91). Many of those objections were of form raising allegedly objectionable issues, such as material being argumentative or conclusionary, or by way of comment upon documents or, indeed, at some points allegedly scandalous. Whilst I do note those objections of form, it is unnecessary to rule specifically upon any of them, as most of the basic underlying facts (save for where I point to the contrary position) are not essentially in dispute.

1. The essential core disputed factual issues (which can only be finally resolved at a trial) are twofold.
2. First, is the issue concerning the knowledge and intention of the plaintiffs through their directors, officers, agents or servants concerning the existence and broad content of the contractual relationships between ISPT and Lendlease and the City of Perth.
3. Secondly, and even more fundamental, is the disputed question of whether the conduct of the plaintiffs in terms of their alleged procuring of persons to be present upon the Bocelli Espresso Café premises in the late evening or early hours of the morning on occasions during March and June 2018 (as is complained of by ISPT's counterclaim) was conduct that was executed by the plaintiffs with the objective of specifically bringing about a breach of the contracts between ISPT and Lendlease and/or the City of Perth, or at least bringing about a frustration in the performance of those contractual arrangements by that presence conduct.
4. They are, essentially, the two key critical factual issue in primary dispute.
5. The affidavit material filed on behalf of the plaintiffs through the Agnellos contends that the presence of persons at the café at those (unusual trading) times was for a purpose of the plaintiffs seeking to trade in order to recoup, in effect, the alleged trading losses they had suffered in 2018 by reason of the (private nuisance) works that ISPT had commenced by way of its redevelopment and about which complaint was originally made under the plaintiffs' private nuisance suit.
6. On the other hand, ISPT alleges as its key contention that the plaintiffs have effectively adopted a deliberate tactic of causing persons to be present at hours and times during March and June 2018 in what were aberrant trading hours for the Bocelli Espresso Café premises (viewed historically) but particularly during June 2018 in winter in Perth. These are circumstances where it is said by ISPT the potential customers who would seek to take advantage of the services of the Bocelli Espresso Café at these aberrant trading times would be minimal, if not negligible. Later in these reasons I refer to some tabulated customer recordings of patrons at the Bocelli Espresso Café at these aberrant trading hours.
7. Those questions are the subject of an elaborate canvassing under the parties' materials which I will collect in the next section of these reasons.
8. I must say at the outset, however, that I am prepared on this application to accept that for the purposes of the present injunction application there is sufficient material provided for me to proceed on the basis, as I do, that ISPT has a very respectable prospect of showing at trial that the plaintiffs have, in fact, intentionally acted in March and June 2018 so as to cause and procure persons to be present at the café at what are aberrant trading hours - and with a purpose of frustrating the execution of ISPT's contractors' gantry installation works.
9. The next section of my reasons deals with the parties' submissions. The parties respectively have filed very extensive written submissions. A first wave exchange occurred in a context of ISPT resisting the as foreshadowed defendant's summary judgment application made against ISPT's counterclaim at a hearing convened on 27 June 2018. At that time, however, I essentially dealt only with submissions made on behalf of the plaintiffs to the effect that the counterclaim was defectively pleaded by ISPT in CIV 1600 of 2018, as regards largely its then pleas of contractual breaches and as to the alleged sustaining of damages. (This is not to mention some of the problematic Eshelby issues concerning the June 2018 conduct not properly being a subject of a counterclaim cause of action that was issued by ISPT on 27 April 2018.) In the end, I struck out the then pleaded counterclaim of ISPT but granted leave to replead. This is now a subsequently repleaded defence and counterclaim filed by ISPT.
10. At that time, the then foreshadowed interlocutory injunction application of ISPT on its counterclaim was programmed for a hearing at the earliest convenient time suitable for counsel and the court. That turned out to be 30 July 2018. This resulted in a second wave of material respectively exchanged.

Written Submissions as filed in CIV 1600 of 2018

1. I will now collect some of the extensive written submissions.
2. ISPT on 26 June 2018 (see court document 55), in the context of resisting the summary judgment application brought against its then counterclaim in CIV 1600 of 2018, filed extensive written submissions. Paragraphs 2 through 8 provide a factual overview to that point of time. I will incorporate them by reference below as I will accept them factually for the purposes of the present application.
   1. The defendant (ISPT) is currently conducting a very significant redevelopment of one of Perth's most important public spaces and indeed Perth's primary civic square - Forrest Place. Forrest Place is Crown Land constituted by certificates of title on 3 levels - basement, ground floor and upper level. The upper level of Forrest Place is known as the 'Padbury Walkways' which wraps around Forrest Chase (the 'Myers' shopping complex adjacent to Forrest Place). Since 2013, ISPT has been planning this redevelopment and obtaining the relevant approvals and permits. The estimated cost of the redevelopment is approximately $110 million.
   2. The redevelopment includes the demolition and rebuilding of the Padbury Walkways by ISPT for the City of Perth. The improved walkways are expected to enhance the public realm in the area, in particular to provide improved access to other City destinations and infrastructure for residents, shoppers, retailers and visitors to the City.
   3. On the ground floor of Forrest Place, under a lease with the City of Perth, there is a retail café business known as Bocelli Espresso (Café) which is owned by the plaintiffs (Bocelli) and which until 7 June 2018 had publicised weekly trading hours of 6.30 am to 5.30 pm (other than Friday). The Café operates over 2 areas - a café building and an adjacent Alfresco Area.
   4. In respect of the redevelopment there are three relevant contracts.

(a) the design and construct contract executed on or around 13 October 2017 by ISPT and Lendlease (Construction Contract). This is a complex building contract which among many other things requires Lendlease to progress and complete the redevelopment works efficiently and requires ISPT to provide Lendlease with appropriate access to allow Lendlease to do so.

(b) an agreement dated 7 February 2017 titled the 'Development Management Agreement - Redevelopment of Walkways' (DMA) executed by the City of Perth and ISPT. This records, among many other things, the obligation of ISPT to carry out the redevelopment works on the land controlled and managed by the City of Perth including the Padbury Walkways; and

(c) an agreement dated 7 February 2017 titled 'Works, Access and Licence Deed - Walkways and Works Area' which among other things requires the City of Perth to grant access to ISPT to permit the redevelopment works to be undertaken.

1. As part of the construction works, it is necessary for ISPT to install gantries above the Café building and the Alfresco Area (outside the Café's leased premises) to safely protect both sites from demolition works. In turn, to safely install the gantries it is necessary that nobody is underneath where the gantries are being lifted and installed - that is, the Café building and Alfresco Area need to be vacant while the installation takes place.
2. Despite notice being given to Bocelli on 2 March 2018 of ISPT's intention to install the gantry over the Café on 6 March 2018, a director of one of the plaintiffs, among others, remained in the Café on the evening of 6 March 2018 outside of the Café's publicised normal trading hours and at least until 2.00 am on 7 March 2018. This conduct prevented the gantry from being installed.
3. On 5 April 2018, Bocelli brought a claim against ISPT in nuisance for allegedly wrongfully causing substantial and unreasonable interference with the Café by reason of allegedly excessive noise levels, vibration and dust. ISPT has denied these allegations and brought a counterclaim. By its counterclaim, ISPT claims that Bocelli has committed the tort of interference with contractual relations based on the conduct referred to above occurring on 6 March 2018.
4. Next, under pars 10 through 36 of those submissions ISPT explained its counterclaim cause of action as involving the tort of interference with contractual relations.
5. Given the importance, novelty and urgency of issues raised on the present application, I will incorporate by reference from those submissions pars 10 through 39, explaining at some length the economic tort that is relied upon by ISPT. ISPT says:
   1. The plaintiffs' submissions proceed largely on the basis of the English decision of OBG v Allan [2007] UKHL 21; [2008] AC 1, that:

(a) historically (and leaving aside the category of cases where the defendant 'indirectly' made the breach more likely) the tort of inducement of breach of contract had been expanded to apply to cases where the defendant had merely prevented performance of the contract such that the tort was made out even if there was no identified actual breach of the contract. This expanded notion of the tort was referred to as 'interference with contractual relations': plaintiffs' submissions [18] - [19];

(b) following OBG v Allan the tort no longer includes the more expansive tort of interference with contractual relations which could be constituted by the mere prevention of contractual performance - rather, in the absence of inducing an actual breach a plaintiff must establish the tort of unlawful interference with trade which requires the conduct itself to be unlawful (and not merely conduct which is accessorial to a civil wrong such as a breach of contract): plaintiffs' submissions [20] - [23];

(c) although the position Australia is less clear than in England and other common law jurisdictions, a number of Australian cases have regarded OBG v Allan as authoritative and accordingly OBG v Allan 'embodies the law in Australia': plaintiffs' submissions [24] - [25], [29] and cases suggesting otherwise were decided in error: plaintiffs' submissions [36].

1. An assessment of the plaintiffs' contentions and whether they justify the granting of the plaintiffs' application, requires a consideration of the relevant legal principles.
2. In Northern Territory v Mengel, in a joint judgment, five members of the High Court said at 342 that the first development of significance in the emergence of 'economic torts' in the second half of the last century:

... was the recognition, in Lumley v Gye ... of the tort of intentional interference with contractual rights. Subsequent developments in the United Kingdom have, to some extent, impinged upon the intentional element of tort. Liability does not depend on whether there is a predominant intention to injure ... and it has been held that constructive knowledge of the terms of a contract is sufficient, so that a defendant may be liable if he or she recklessly disregards the means of ascertaining those terms ... But it is still accurate to describe the tort as one that depends on an intention to harm for that is necessarily involved if a person knowingly interferes with the enjoyment by another of a positive legal right, whether such knowledge is actual or constructive. (citations omitted)

1. The plaintiffs are correct that the tort encompasses what has been described as a tort of inducing or procuring a breach of contract, and that it was extended by the judgment of Lord Denning in Torquay Hotel Co Ltd v Cousins who held that this tort may be committed when the defendant, although not necessarily having procured the breach of a contract between the plaintiff and the third party, had prevented or hindered a party from performing all of the obligations under it.
2. Lord Denning's views were subsequently accepted as correct in Australia. Further, the tort of interference with contractual relations has been recognised as forming part of the common law of Australia. In Zhu v Treasurer of the State of New South Wales the High court dealt with an appeal arising from an action described as based on the tort of 'interference with contractual relations'. Although Zhu principally turned upon the defence of justification, it provides implicit support for a tort of interference with contractual relations.
3. Moreover, contrary to the plaintiffs' submissions, the tort of interference with contractual relations, constituted by 'mere' prevention of contractual performance, is supported by ample Australian authority.
4. In Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd the Full Federal Court (Lindgren J; Lockhart and Tamberlin JJ agreeing) discussed the elements of the tort of interference with contractual relations at 42 as follows:

From the modern progenitor of the tort, Lumley v Gye to date, the alleged tortfeasor's state of mind with respect to breach has been central to this particular form of tortious liability. In early cases what was required was referred to as 'malice'. This has yielded to references, in numerous cases, to 'intention' or 'knowledge' that a breach of contract or at least an interference with another's contractual rights will result ...

... The requirement that the alleged tortfeasor have 'sufficient knowledge of the contract' is a requirement he have sufficient knowledge to ground an intention to interfere with contractual rights. [Citations omitted, emphasis added]

1. In Fightvision Pty Ltd v Onisoforou, the New South Wales Court of Appeal said at [171]:

The position may be stated, we think as follows. The plaintiff must prove that the defendant intentionally procured the breach. The requirement that the defendant have sufficient knowledge of the contract is a requirement that he have sufficient knowledge to ground an intention to interfere with contractual rights. [Emphasis added]

1. In Donaldson v Natural Springs Australia Limited, Beach J stated at [2013]:

... the classic case of direct interference [with contractual relations] is the tort of inducing a breach of contract. But direct interference with contractual relations is not confined to the procurement of a breach, if the defendant prevents or hinders a contractual party from performing his contract, even though it is not a breach, the tort may be established.

... The various elements of the tort of inducing a breach of contract are not in doubt. First, there must be a contract. Second, the defendant must know that such a contract exists. Third, the defendant must know that if one of the contracting parties does or fails to do a particular act, that conduct would be a breach of the contract. Fourth, the defendant must intend to (and in fact (induce or procure that contracting party to breach the contract by doing or failing to do that particular act. Fifth, the breach must cause loss or damage to the plaintiff. Sixth, no defence of justification should be applicable.

But direct interference with contractual relations is not confined to the procurement of a breach. If the defendant prevents or hinders a contractual party from performing his contract, even though it is not a breach, the tort may be established.

1. Relevantly, Beach J explained that Lord Hoffmann in OBG v Allan expressed doubt as to the tort of indirect interference with contractual relations, which he preferred to put into the broader category of the tort causing loss by unlawful means. This appears to be because in the case of indirect interference with contractual relations it is necessary to establish a separate unlawful conduct or means. His Honour proceeded to critique Lord Hoffmann's distinction between primary and accessorial liability for these torts as follows at [217]:

... [the] primary and accessorial liability distinction may not be all that clear or clean. Accepting that indirect interference involves a tort of primary liability, so too may be the case with direct interference. Direct interference may involve, in some cases, not inducing a breach as such. It may involve preventing or hindering a contracting party's performance which does not involve or produce a breach. In such a case, such conduct of the defendant would not amount to accessorial liability, for there would be no 'primary wrongful' act of the contracting party' ... In such a situation of direct interference the defendant would have primary liability.

Whatever be the position concerning the broader tort, for present purposes it is sufficient to say that there is an economic tort of interference with contractual relations, where the interference can be either direct or indirect.

1. Significantly, this case was decided after OBG v Allan. Further, this view that the tort of intentional interference with contractual relations continues to exist (despite OBG v Allan) and that interference is not confined to the procurement of a breach but extends to a case where a third person prevents or hinders another from performing his contract has also been followed in Mad Dogs Pty Ltd (in liq) v Gilligan's Backpackers Hotel & Resort Pty Ltd & Anor (No 3).
2. In Western Australia, Newnes M in Boase v Seven Network (Operations) Ltd observed at [32]:

The general principle is that in order to establish a cause of action of unlawful interference with contract the plaintiff must show that the defendant, with knowledge of the contract and intent to prevent or hinder its performance, persuades, induces or procures one of the parties not to perform their obligations: Short v City Bank of Sydney [1912] HCA 54; (1912) 15 CLR 148.

Although the cases generally refer to a breach of conduct, for the purposes of this application it was common ground that in fact it is not necessary that the defendant's conduct results in a breach, so long as it interferes in the execution of the contract. It was accepted that the law was as stated by Lord Denning in Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 at 138 as follows:

... there must be interference in the execution of a contract. It extends to a case where a third person prevents or hinders one party from performing his contract, even though it be not a breach.

1. The principles in Boase were cited and followed by Le Miere J in Jaddcal Pty Ltd v Minson. Significantly, this decision was a number of years after the OBG decision thereby highlighting that the position in Western Australia had not been transformed by the OBG decision.
2. Most recently, in Mastec Australia Pty Ltd v Trident Plastics (SA) Pty Ltd (No 2) White J stated without any reference to the OBG decision:

The principles concerning the tort of interference with contractual relations were summarised by Bray J in Davies v Nyland (1975) 10 SASR 76 at 98 as including (relevantly):

1. A knowing and intentional interference by the defendant with the plaintiff's contractual rights without justification is an actionable tort.
2. Such an interference may be, inter alia, the procuring of a breach of a legally binding contract not yet fully performed between the plaintiff and the third party or preventing the performance of such a contract.
3. The interference in question must be unlawful but 'where it is direct, the persuasion, procurement, inducement, or other form of interference is regarded by the law as wrongful in itself, where it is indirect, the means by which the interference is effected must be, or include, an unlawful act, that is, an act which the defendant is not in law at liberty to commit.
4. The defendant must have knowledge of the existence of the contractual relations interfered with ...
5. The interference must be intentional.

1. Consistently with those authorities, Halsbury's Laws of Australia, '5 Intentional Interference with Trade or Business' [415-1150] states:

The tort of interference with 'contractual relations is committed where a person knowingly and intentionally interferes with contractual relations or the contractual rights of the complainant, thereby causing damage to that person, where there is no sufficient justification for that interference. It must be shown that there was a contract which had been interfered with by the defendant, whether by inducing one of the parties to break the contract or by interfering with performance of the contract, and that the defendant had sufficient knowledge of the contract to know he or she was hindering or preventing the performance of the contract. It is not sufficient that the defendant hoped, wished or had an 'uncommunicated subjective desire' that the contract would be breached.

The interference must be unlawful and may be effected directly or indirectly. Where it is direct, the persuasion, inducement, procurement or other form of interference is regarded by law as wrongful in itself. Where the interference is indirect the acts must be or include an unlawful act and the interference with the contract must be a consequence of that act.

Direct interference may be constituted by direct persuasion or procurement, for example, bribery or threat or force, or hindering or preventing performance of a contract, for example, by physically restraining a contracting party. Actionable indirect interference occurs where persons upon whom the plaintiff relies for the performance of the contract with a third party are induced to breach their contracts with the plaintiff, thereby preventing or hindering performance of the contract.

1. That passage was adopted verbatim in Terry Cross Financial Services v Misiti [2008] NSWSC 1365 at [17].
2. Accordingly, it is plainly arguable in Australia that:

(a) there remains a tort of interference with contractual relations; and

(b) the tort is committed by a person who hinders or prevents the performance of a contract.

1. It is then necessary to consider each of the elements of the tort set out in Donaldson at paragraph 18 above.

1. To establish knowledge, it is not necessary to prove that the defendant knew the precise terms of the agreement. It is sufficient if the defendant has a 'fairly good idea' that the contract benefits another person in the relevant respect. Knowledge of the contract in this sense may be sufficient to ground the necessary intention to interfere with contractual rights, even though the defendant does not know the precise terms that will be breached.
2. In Boase [33] and Jaddcal [32] it was put as follows:

The fact that the breach was a natural consequence of the defendant's conduct is not sufficient; the defendant must have intended the breach. It is not necessary that the defendant knows the precise terms of the contract: Woolley v Dunford (1972) 3 SASR 243 at 266 - 268. But the defendant must know of the contract and sufficient of its terms to know that what the defendant intended or procured the party to the contact to do would be in breach of the contract. If the defendant knew of the existence of the contract but believed reasonably that what the defendant induced or procured the party to do was not a breach, the defendant has not knowingly induced or procured the breach: Fightvision Pty Ltd v Onisofou at [160],

1. In Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd [1995] FCA 1368; (1995) 58 FCR 26 the Full Federal Court reviewed the elements of tortious interference of contractual relations. Lindgren J, with whose judgment Lockhart and Tamberlin JJ agreed, made the following observations about the elements of knowledge and intention at 37:

... a person's 'knowledge' that what he is inducing will constitute a breach of contract and his 'intention' to induce a breach of contract by what he is doing refer to one and the same thing. After all, ex hypothesi, the alleged tortfeasor's acts are intentional, a breach of contract occurs, and the acts induce the breach. Against that background, 'knowledge' and 'intention' that the breach will result from the acts do not signify and relevant distinction.

... the authorities establish conclusively that the gravamen of the tort is intention. Although the requirement of knowledge of the contract is sometimes discussed as if was a separate ingredient of the tort, it is in fact an aspect of intention. The requirement that the alleged tortfeasor have 'sufficient knowledge' is a requirement he have sufficient knowledge to ground an intention to interfere with contractual rights.

Both this intention to interfere with contractual rights and the necessary supporting knowledge of the contract refer to the 'actual' or 'subjective' statement of mind of the alleged tortfeasor.

1. A distinction has been drawn between direct and indirect interference. Direct interference occurs where the defendant's act or omission acts on the mind or position of one of the parties to the contract. It is prima facie unlawful because it directly touches one of the contractual parties and their contractual rights. An example of direct interference is where a defendant uses direct persuasion or procurement or prevents or hinders a contractual party from performing his contract, for example by physically restraining a contracting party.
2. By contract, indirect interference occurs where the tortfeasor's act or omission acts on the mind or position of a third party which causes that third party to take or not take a step which then acts on the mind or position of one of the contracting parties. Some other element of unlawfulness needs to be added beyond the ultimate intention of the defendant in seeking to interfere with the contract. An example of indirect interference is found in the case of Merkur Island Shipping Corp v Laughton in which tugmen and lock-keepers were induced by the union to break their employment contracts with the consequence that the vessel which the plaintiffs had chartered to leave port was unable to do so.

1. Justification is the only defence available for the tort of inducing breach of contract. The onus of proving justification is on the party who has interfered with contractual relations of another. The essence of the defence is that the conduct of the alleged tortfeasor involves the assertion of a greater right. The authorities observe that the defence has rarely succeeded. As stated by the High Court in Zhu v Treasurer of NSW:

The rarity of instances of success [of the defence of justification] probably reflects the high store placed on compliance with contractual obligations by English law and the common law systems derived from it. The assertion of justification by a stranger to interfere with such compliance necessarily impinges on the general approach to the law. It is for that reason that justification requires either the authority of statute or some other superior right if the interference is to be lawful.

However, in stating the law for Australia, it should now be accepted that where the superiority of rights rest in some characteristic of the general law then ... temporal priority of other purely contractual rights will not suffice.

1. An actually superior legal right is required and such superiority is not established by priority between merely contractual rights. Superiority is conferred by the proprietary nature of the right or must be found in statute.
2. However, there is a limitation on the defence. As the High Court stated at [16]:

Even if [the defendant's] conduct had fallen within some existing judicial test, it would not constitute justification for an additional reason. According to Jordan CJ in Independent Oil Industries Ltd v Shell Co of Australia Ltd an act of interference may be justified 'if shown to be no more than reasonably necessary for the protection of some actually existing superior legal right in the doer of the act.

... [t]he 'reasonably necessary' test directs attention to how a reasonable and prudent person or body in [the defendant's] position would have behaved.

1. Thus, even if a defendant has a superior legal right, the defence of justification will not be available unless the defendant has done no more than is reasonably necessary for the protection of that superior legal right.
2. By a second tranche of written submissions of 20 July 2017, ISPT elaborated upon the tort of interference with contractual relations which it invokes, and then towards its application to the contended facts underlying this application. Again, for speed and present convenience, I will incorporate pars 26 through 69 of the further submissions of ISPT (court document 76).
   1. [I]SPT set out at some length the general principles in relation to the tort of interference with contractual relations from [10] to [39]. It is thus not necessary to set out those principles in full again. It is sufficient to observe that it is the present state of the law in Australia, that:

(a) there remains a tort of interference of contractual relations;

(b) that tort is committed by a person who hinders or prevents the performance of a contract;

(c) preventing or hindering a contractual party from performing a contract amounts to direct interference;

(d) actual knowledge of the contract is not necessary - a fairly good idea is sufficient;

(e) knowledge is really an aspect of intention - a person's intention to prevent the performance of a contract is sufficient to constitute the tort; and

(f) the onus of making out the defence of justification rests upon the party alleged to have interfered. The essence of the defence is that the conduct of the alleged tortfeasor involve the assertion of a greater right. The defence rarely succeeds and is in any event limited - an active interference is only justified if shown to be no more than reasonably necessary for the protection of some actually existing superior legal right.

Serious question to be tried - application of the facts

1. Again, the ISPT summary judgment submissions descend in some considerable detail to the application of the facts to the elements of the tort. The summary below is directed to the principal features that strongly suggest the plaintiffs' conduct was motivated by a desire and intention to interfere with ISPT's contractual relations by preventing installation of the gantries and those parts of the redevelopment of the Walkways dependent upon their installation.
2. First, it is plain that the plaintiffs were aware of the involvement of the City of Perth and Lendlease in respect of the development works. There is a good deal of documentary evidence to support that but one need go no further than the following:

(a) the email from the plaintiffs' solicitors to ISPT referring to the fact that 'ISPT has engaged contractors (Lendlease)...';

(b) the affidavit evidence of Frank Agnello is that on or around 21 July 2017 he received a copy of a document titled Forrest Chase Redevelopment dated 17 May 2017. That document set out on page 109 the construction methodology for the gantry installation including that a gantry was to be installed above the Café and that it was installed for the protection of both construction workers and the public;

(c) the email from Lendlease to the City of Perth dated 12 February 2018 confirming that Frank Agnello had contacted Lendlease directly in relation to the impending gantry works around the Café on 12 February 2018;

(d) the letter from the plaintiffs' solicitors to the City of Perth dated 16 February 2018 which shows that the plaintiffs:

(i) were aware at least from 2013 of the redevelopment;

(ii) had engaged in discussions with ISPT about its intention to redevelop the land; and

(iii) had engaged in discussions with the City of Perth about its intention to carry out works on the common areas;

(e) the letter from the plaintiffs' solicitors to each of ISPT, the City of Perth and Lendlease dated 1 March 2018 demanding that ISPT and Lendlease comply with the plaintiffs' requirements to limit certain works to after 10.30 pm and before 5.00 am and ensuring that the City as the plaintiffs' landlord is aware of these matters;

(f) the letter from the City of Perth's solicitors to the plaintiffs' solicitors dated 2 March 2018 shows that the plaintiffs were informed of 'the nature of works intended by ISPT and its contractor Lendlease, under arrangements with the City' and that there had been fairly extensive consultations about this work;

(g) the letter from the plaintiff's solicitors to ISPT dated 6 March 2018 shows that the plaintiffs were aware that the City of Perth had given notice that ISPT's contractor intended to commence work relating to the constructor of the gantry over the Café [on] the evening of 6 March 2018; and

(h) the plaintiffs were aware (or must have turned a blind eye to the fact) that the entity that controlled Forrest Place, the City of Perth, was its landlord and that ISPT could not be conducting significant invasive works in Forrest Place without a contractual arrangement with the City of Perth. The plaintiffs received a variety of communications and notices regarding the construction works directly from the City of Perth.

1. The plaintiffs thus had sufficient knowledge of the contractual arrangements. Indeed, the above matters provide an evidentiary foundation establishing that by 6 March 2018 the plaintiffs knew that:

(a) ISPT's contractor for the construction works was Lendlease and, accordingly, that there was a contract between ISPT and Lendlease for the works associated with the redevelopment which included the installation of the gantries; and

(b) the works intended by ISPT and its contractor Lendlease were of a nature that required arrangements with the City of Perth and, as such, the plaintiffs must have known that there was an arrangement with the City to enable ISPT and Lendlease to undertake the works.

1. There is a very strong inference that the plaintiffs' conduct was undertaken with the intent of preventing the installation of the gantries and thus frustrating the contractual arrangements of which they must have been aware.
2. There is no suggestion or evidence that the plaintiffs historically traded through to the early hours of the morning outside Friday or Saturday nights. On the contrary, in his own affidavit of 27 April 2018 Frank Agnello attested to the opening hours of the Café being 6.30 am to 7.30 pm except for Fridays. The published trading hours of the Café on Facebook showed that the Café closed around 5.00 pm other than on Fridays. As a matter of common sense, it is not difficult to see why that is so. It is plain that a café business trading into the early hours of the morning in Forrest Place during the week, particularly in the winter nights, will not be profitable. It defies common sense to assert otherwise.
3. The plaintiffs only began to trade into the early hours of the morning during the week upon learning that ISPT intended to install the gantries. The background to that happening strongly suggests that the plaintiffs did so as a means of preventing the installation of the gantries and those parts of the redevelopment of the Padbury Walkways dependent upon their installation.
4. That background requires an appreciation of the genesis of the dispute. The plaintiffs have a lease that expires on 1 March 2021. There is no option for a further term. It is clear from the plaintiffs' own evidence and the contemporaneous documentation that the plaintiffs were only prepared to cooperate so as to allow the redevelopment to proceed if they got a new lease deal on terms they found acceptable. When they did not get the deal they wanted they developed a significant hostility towards ISPT whom they accused of as lying and deceiving.
5. In his affidavit Michael Barr refers to a meeting in 2017 following the breakdown of the lease negotiation. His evidence is that Frank became angry and said he would stay open all night. Frank made no reference to recouping losses. In his responsive affidavit, Frank contends that Mr Barr's summary 'is incomplete' but provides no denial of the evidence. On the contrary he confirms that he became angry and accused ISPT of 'screwing us' and of lying. It stands to reason that in that context the plaintiffs would have been motivated to frustrate ISPT's commercial objectives.
6. Michael Barr made contemporaneous notes of his meeting with the plaintiffs on 18 February 2018. The contemporaneous notes make it plain that the plaintiffs' cooperation in relation to the redevelopment had ceased due to the breakdown in negotiations for a further lease. Point 4 of the note makes it plain that the plaintiffs' conduct to frustrate installation of the gantries was deliberate and as a result of the plaintiffs' hostility. Point 8 makes it plain that Frank became abusive in response to the prospect of the installation of the gantries and that he would take legal action 'and would trade 24 hours a day going forward'. There is no reference in that contemporaneous note linking the intention to trade 24 hours a day to making up the losses. On the contrary, the threat to trade 24 hours a day is plainly in response to ISPT's intention to install the gantries after the breakdown of lease negotiations.
7. It is also instructive to consider the record of the closing times of the Café taken from the time-lapse camera and annexed at page 603 of the affidavit of Nicholas De Vries dated 20 June 2018. That record indicates that other than Friday night there was no late trading until 11 February 2018. The email records annexed to the affidavit of Michael Barr indicate that the plaintiffs were advised of the imminent installation of the gantries sometime shortly after Thursday, 8 February 2018. The email at page 225 indicates that the plaintiffs found out about the proposed installation of the gantries shortly before 12 February 2018. The plaintiffs' commencement of weekday late trading thus coincided with the anticipated installation of the gantries.
8. A letter from the plaintiffs' solicitors to the City of Perth dated 16 February 2018 shows that the plaintiffs were aware that:

(a) it was intended that a gantry be erected over the Café; and

(b) seeking to stop the works, including the erection of the gantry, was likely to interfere with ISPT's timetable for the redevelopment and likely to cause significant loss to ISPT such that the plaintiffs were not prepared to seek an interlocutory injunction which would require them to provide an undertaking as to damages.

1. The plaintiffs knew that the gantries above the Café and Alfresco Area were to be installed so that the works could proceed as planned.
2. As to ISPT's attempt to install the gantry on 6 March 2018, notices had been provided to the plaintiffs before 6 March 2018 to advise them of the proposed gantry installation and the need to vacate the Café outside of the work hours previously advised by the plaintiffs themselves.
3. Further, there were very few people in the Forrest Place area generally after 8.00 pm on 6 March 2018. Accordingly, it was not a time at which one could sensibly expect to trade for profit. In fact, Nicholas De Vries' evidence is that there were no observed customers purchasing anything from the Café after 9.30 pm on 6 March 2018. Instead, the people who remained in the Café or Alfresco Area after 9.30 pm appeared to be a mix of Bocelli Café staff members and acquaintances of the owners of the Café. The absence of real customers and the presence of Bocelli affiliates strongly suggests that the purpose in keeping the Café open was to frustrate the installation of the gantry, not to trade for profit.
4. There is some conflict on the evidence as to what the plaintiffs said on the night of 6 March 2018 when ISPT attempted to install the gantry. Nicholas De Vries gives evidence that Frank told him that he 'would not be vacating the premises as long as the gantry installation crew remained on-site'. Frank denies having said words to that effect. The contemporaneous record is a text message from Michael Barr to Robert Staniford: 'Spoke to Nick. Frank says he is not budging tonight. Will trade through the night. According to [N]ick his ire is firmly directed at [ISPT]. Says he has been trying to get people to come to the party but can't get anyone to talk to him!...'. That contemporaneous record is consistent with the plaintiff exacting its anger on ISPT by frustrating its construction works.
5. The Café appears to have closed shortly after or during the demobilisation by Lendlease (after it became clear that the works could not go ahead). It appears that the plaintiffs changed their mind about trading 'through the night' once it became clear that the works could not go ahead. Further, the proximity in timing of the Café closure and demobilisation undermines the plausibility to the plaintiffs' claim that they remained in the Café for the purpose of trading for profit. Rather, it is far more likely that the plaintiffs remained in the Café solely for the purpose of frustrating the installation of the gantry.
6. On 8 May 2018 ISPT invited the plaintiffs (through their solicitors) to identify a time when they would not need to stay in the Café after their usual trading hours so that the gantries could be installed. Had the plaintiffs' true motivation been profitable trade, then the records of closure times over May and June 2018 indicate that there would have been nights when the gantries could have been installed without impacting on the Café. But the plaintiffs never responded to this letter. Their lack of response is again suggestive of their intention to frustrate any attempt to have the gantries installed.
7. After not receiving any response, on 25 May 2018 ISPT's solicitors provided notice to the plaintiffs' solicitors of ISPT's intention to commence installation of the gantry over the Café on 12 - 14 June 2018. ISPT informed the plaintiffs (through their respective solicitors) that the Café needed to be vacant for the gantry to be safely installed and further noted that it seemed opportune to undertake the works in the middle of winter and on nights other than Friday and Saturday nights to minimise the impact on the plaintiffs' business.
8. The events surrounding ISPT's attempts to install the gantries in June 2018 provide further strong support for the inference that the plaintiffs' conduct was undertaken with the intention of preventing the installation of the gantries. At page 639 of Nicholas De Vries' affidavit dated 20 June 2018 is a table that collates the number of people observed in the Café after 6.00 pm. It is evident from that table that during the evenings preceding the attempted gantry installations, there was no more than one person in the Café late at night but suddenly there were up to 15 people there on the night that ISPT resumed its efforts to install the gantry on Tuesday night 12 June 2018. After those efforts ceased on the Friday night 15 June 2018 there were no people in the Café at the equivalent times (even though Friday night is ordinarily a late-night trading period).
9. On the evening of 12 June 2018, the evidence of Nicholas De Vries is that:

(a) there were no customers of the Café after 8.00 pm that night other than people who appeared to be clearly associated with the directors of the first plaintiff and two Lendlease subcontractors who purchased coffee; and

(b) there were no other shops open in either Murray Street Mall or Forrest Place after 8.00 pm.

In these circumstances, it is not credible to assert that the opening of the Café beyond 2.00 am in the morning was for the purposes of trading for a profit. It is far more likely in the circumstances that it was to frustrate the attempts to install the gantry.

1. On 13 June 2018, the evidence of Nicholas De Vries is that:

(a) All other shops in the vicinity were closed by 8:00pm that night;

(b) There appeared to be a total of 8 legitimate customers (including one Lendlease subcontractor who purchased coffee) between 8.00 pm and 10.30 pm that night with no customers after that time;

(c) Café staff were hosing down inside the Café and generally cleaning up and sweeping up by 10.15 pm that night; and

(d) Frank Agnello and his wife appeared to have arrived at the Café at 10.40 pm.

Again, these observations, strongly suggest that the opening of the Café beyond 2.00 am was not for the purposes of trading for a profit but to frustrate the attempts to install the gantry.

1. On the afternoon of 14 June 2018, after further notice had been provided to the plaintiffs of ISPT's intention to install the gantry that evening, the plaintiffs' solicitors responded that the plaintiffs 'will trade every night until late for the balance of its lease'. In light of the context in which this response was provided, the inference ought to be drawn that the plaintiffs' intention in trading late every night (regardless of the ability to profit from such trade) was to frustrate the installation of the gantry.
2. On 14 June 2018, the evidence of Mr De Vries, based on information received from his colleague Mr Farnworth, is that:

(a) all other shops in the vicinity of the Café were closed by 8.00 pm that night;

(b) there appeared to be a total of 6 customers (including 4 Lendlease subcontractors purchasing coffee) up to 9.50 pm after which time no customers at the Café were observed; and

(c) it appeared that Frank Agnello arrived at the Café at 10.25 pm (being 5 minutes before the intended commencement of the gantry installation).

Once again, the inference is irresistible that the plaintiffs remained in the Café not for the purpose of trading for a profit but to frustrate the installation of the gantry.

1. Against that background, there is a strong, if not inescapable inference that the plaintiffs began and maintained their weekday late-night trading in order to prevent the installation of the gantries.
2. By reason of the matters set out above, it is fairly plain that:

(a) the plaintiffs had sufficient knowledge of the contractual arrangements;

(b) the plaintiffs appreciated that the consequences of their conduct would be to interfere with those arrangements; and

(c) indeed, the plaintiffs intended that outcome by their conduct.

1. The plaintiffs maintain that they were not seeking to prevent the installation of the gantries but rather to make up for lost trade. The contemporaneous record does not support that contention but in any event, as a matter of common sense it is fanciful to suggest that it would be profitable to trade through the early hours of the morning especially at the height of winter in order to make up losses.
2. The plaintiffs also maintain that pursuant to their lease they have a right to trade extended hours as they wish. Whether or not the plaintiffs were entitled to stay in the Café by reason of the rights provided by the lease is not to the point. Even if the lease provided such rights, they may not be exercised for a collateral purpose. But, in any event, the exercise of rights under a lease discloses nothing about the reason for the exercise of those rights. If lawful rights are exercised for the purpose of preventing the performance of a contract then a tort may nevertheless be committed.
3. In any event, as explained above, the defence of justification will not be available unless the plaintiffs have done no more than is reasonably necessary for the protection of their rights. In light of the matters set out above, it is most unlikely that a Court would conclude that the plaintiffs limited their actions to that which was reasonably necessary.
4. In all the circumstances, there is a strong inference available that the plaintiffs consciously intended to disrupt ISPT's contractual arrangements by preventing installation of the gantries and those part of the redevelopment of the Padbury Walkways dependent upon their installation.
5. There is therefore, a serious question to be tried as to whether the plaintiffs committed the tort of interference with ISPT's contractual relations.

1. No injunction will usually issue where an adequate remedy at law exists.
2. Common law relief may be inadequate where:

(a) doubt surrounds the respondent's ability to pay the damages sought. As stated in Schering Pty Ltd v Forrest Pharmaceutical Co Pty Ltd & Ors [1982] 1 NSWLR 286 at 290:

Certainly if an injunction is not granted there is no other remedy that is of any value at all to the plaintiff; it will suffer irreparable harm; it will probably suffer irreparable harm in any event, but certainly it will suffer irreparable harm if an injunction is not granted, because any right to damages in the present circumstances is completely illusory.

(b) damages are likely to prove difficult to quantify.

1. Here, damages are not an adequate remedy. If injunctive relief is denied, unquantifiable or irreparable damage will be suffered by ISPT, third parties and the general public more broadly for the following reasons.

(a) Loss of future tenants - ISPT has entered into various lease agreements with future tenants for the lease of shops in the retail area behind the existing Padbury Walkways. If the redevelopment of that area cannot be finalised before a specified commencement date in the lease agreements then these future tenants have the right to walk away from the lease agreements. As a result ISPT may lose important future tenants. It is not possible to quantify the loss to ISPT if it loses these future tenants.

(b) Further, tenants that lease shops in the redeveloped Forrest Chase will be affected by the unfinished redevelopment because:

(i) there will be fewer shops resulting in fewer visitors to the mall and their shops and therefore less trade; and

(ii) an unfinished shopping mall will be less attractive than a finished shopping mall and will not attract the same customer levels which will also result in less trade for these tenants.

This may lead to a demand for lower rental incomes for ISPT from these tenants and/or demands for compensation to be paid by ISPT to these tenants. Much of this loss is not possible to quantify.

(c) Impact on new leases - As a result of the inability to install the gantries and continue the works, there is uncertainty regarding:

(i) the timing of completion of the redevelopment and the opening of future shops in the redeveloped Forrest Chase; and

(ii) the outlook of the redeveloped Forrest Chase.

As this is critical information for any potential tenants, ISPT is unable to provide any certainty on these matters to potential tenants which is impacting its ability to find new tenants and sign up new leases for the redeveloped Forrest Chase.

(d) Loss of Christmas period trade for tenants - If the redeveloped works are further delayed, certain future tenants will not be able to open their shops in the redeveloped Forrest Chase before Christmas. This will have a negative impact on:

(i) the trading levels for these shops as they will miss out on the most important trading period in the year when a significant portion of annual sales is achieved; and

(ii) other retailers in Forrest Chase will have reduced customer levels due to fewer shops in the area and the shopping mall being unfinished.

(e) Impact on the City of Perth and community events - If the redevelopment works continue to be delayed, there will be more works undertaken in the Christmas period than currently envisaged. This will impact on the ambiance and atmosphere of the City of Perth as a whole. It may also impact on any events that are planned to take place in or around Forrest Place in the Christmas period such as the event to turn on the City of Perth's Christmas lights which has taken place in Forrest Place in recent years and attracts thousands of people every year.

(f) Impact on surroundings and other parties - Further delay of the redevelopment will also have the effect that the construction works continue for a longer period of time. This will negatively impact on:

(i) Other retailers and shopping malls in the vicinity of Forrest Chase including the Murray Street Mall and Carillon City and their tenants;

(ii) Residents in nearby apartment blocks, including on Murray Street and Barrack Street; and

(iii) A large number of the general public including commuters who use Forrest Place and the Padbury Walkways on a regular basis.

(g) Effect of reprogramming in the works schedule - If the gantries above the Café and Alfresco cannot be installed such that the construction works cannot be completed until the expiry of the plaintiffs' lease in 2021, then there will be further impact on:

(i) tenants within Forrest Chase as certain shops will need to be vacated during the period that redevelopment is recommenced which will result in loss of trade to these retailers and lower or no rental income from those tenants to ISPT during that period; and

(ii) other parties in the area, such as retailers, pedestrians, commuters, shoppers and visitors to the City of Perth as the construction works will continue for a longer period. It is not possible to quantify losses to these third parties.

(h) Reputational loss - Further delays to the redevelopment are likely to result in consequential reputational damage for ISPT, which loss is impossible to quantify. This is likely to arise in the following ways:

(i) if ISPT is unable to comply with its obligations under lease agreements or is not able to negotiate new leases with potential future tenants and those future tenants form part of a larger retail company that has branches in other parts of the country then this may affect ISPT's ability to enter into leases with these companies in other parts of Australia or negatively impact the negotiation position of ISPT in future dealings with these companies;

(ii) the additional costs associated with a delay in the redevelopment may result in dissatisfaction with the current investor base of ISPT and could impact ISPT's ability, or the terms on which it is able, to attract future investors; and

(iii) if, as a result of the current delays in the redevelopment, ISPT gets a reputation that it is not able to complete large redevelopments, this may lead to reluctance of other governmental bodies to work with ISPT on any future redevelopments.

(i) For the above reasons, damages will not be adequate remedy in the event that injunctive relief is not granted.

1. Consideration of the balance of convenience begins with the observations of the High Court in Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 that the grant of an injunction involves balancing the injustice which might be suffered if the injunction is granted and the plaintiff later fails at trial, against the injustice which might be suffered if the injunction is not granted and the plaintiff later succeeds at trial. Ultimately the question is as to the balance of the risk of injustice.
2. In considering the balance of convenience in this matter, it is important at the outset to observe that there can be no doubt that the plaintiffs will continue to occupy the Café in a manner that prevents the installation of the gantries. Thus, there is no 'neutral' outcome. Either the plaintiffs will be required to allow the gantries to be installed or ISPT will in effect be prevented from installing the gantries.
3. In that regard, it is important to note that the plaintiffs have consciously elected not to bring an application for an injunction because they do not wish to provide an undertaking for damages. Yet, if the injunction is not granted, the plaintiffs will in effect have their injunction because ISPT will, practically speaking, be restrained from installing the gantries. In effect, the plaintiffs will have their injunction and ISPT will have no protection from any undertaking. That alone is sufficient to suggest that a greater injustice will arise if an injunction is not granted.
4. But in any event the various factors relevant to the balance of convenience are in favour of the injunction being granted. These are as follows.

(a) the redevelopment is a very significant redevelopment of one of Perth's most important public spaces and indeed Perth's primary civic square - Forrest Place.

(b) ISPT will suffer significant prejudice if the injunction is not granted. If the plaintiffs are not restrained from preventing the installation of the gantries then the construction works (in respect of the Padbury Walkways and the bridge, lifts and escalators between the Padbury Walkways and Carillon City) cannot proceed as planned. As a result there will be significant loss to ISPT including:

(i) costs associated with redesign of the redevelopment and reprogramming of the works schedule;

(ii) damages claims resulting from liability to Lendlease and its subcontractors for delays to the project and potentially from the City of Perth;

(iii) losses flowing from lease agreements entered into by ISPT relating to Forrest Chase;

(iv) losses arising from the difficulties in signing up new tenants to leases within the redevelopment; and

(v) reputational losses at a corporate, investor and governmental level.

(c) as noted above, the plaintiffs have consciously elected not to seek injunctive relief and accordingly there are no means by which ISPT will be compensated for these losses other than by prosecution of its counterclaim with its attendant risks. The first plaintiff has a paid up capital of two dollars. The second plaintiff has a paid up capital of one thousand dollars. No balance sheets have been provided;

(d) third parties (including current and future tenants of Forrest Chase and the surrounding areas, residents, commuters and the general public) will also be adversely affected if the works cannot proceed as planned including:

(i) the likely losses by retailers in Forrest Chase and the surrounding areas (including Murray Street Mall and Carillon City) as a result of the delayed launch of the redeveloped Forrest Chase and the loss of the opportunity to trade during the lucrative Christmas period (as set out in paragraph 59(d) above);

(ii) the negative impact on the general public who would attend events in Forrest Place in the Christmas period (such as the event to turn on the City of Perth's Christmas lights which attracts thousands of people every year) as there will be more works being undertaken in the Christmas period if the delay continues (as set out in paragraph 59(e) above);

(iii) the negative impact on residents in nearby apartment blocks including on Murray Street and Barrack Street as the construction works will continue for a longer period of time (as set out in paragraph 59(f) above);

(iv) the impact on a large number of the general public including commuters who use Forrest Place and the Padbury Walkways on a regular basis (as set out in paragraph 59(f) above).

(e) if the injunction is granted, then the impact on the plaintiffs is that they will be unable to trade between 10.30 pm and 5.00 am (notably these were hours which until early June 2018 were publicised as hours during which the Café was closed) for a limited number of evenings during winter and possibly early Spring. Moreover it is difficult to see how the plaintiffs could suffer any great prejudice when their own solicitor wrote to ISPT, Lendlease and the City of Perth demanding that noisy works be undertaken between 10.30 pm and 5.00 am.

(f) it should also be noted that the terms of the injunction have been carefully crafted in order to minimise any impact on the plaintiffs. ISPT has agreed to provide at least seven days' notice of any gantry installation and any other demolition or reconstruction work requiring the vacation of the Café and has agreed that those works will not be done on a Friday night or Saturday night. It may be noted that ISPT has suggested those arrangements to minimise any detriment to the plaintiffs and only after the plaintiffs [failed] to respond to the invitation to nominate times.

(g) it is appreciated that the plaintiffs maintain that it is not simply the installation of the gantries that causes them concern but the further works that the gantries will facilitate. However, the plaintiffs have both ISPT's undertaking and their own nuisance claim by which any prejudice can be cured. In contrast to the financial position of the plaintiffs, there is no suggestion that ISPT is not in a position to adequately fulfil any undertaking. Nor is there any suggestion that the plaintiffs' prejudice cannot be cured by financial compensation.

1. As a general observation it should be noted that the plaintiffs have, for 19 years taken the benefit of being located in Forrest Place and adjacent to the Walkways which are a very significant public thoroughfare. In the circumstances there is no overriding prejudice in requiring the plaintiffs to vacate the Café on nominated winter nights from 10.30 pm to 5.00 am to permit improvements to the very infrastructure from which they have profited.
2. The circumstances in relation to the balance of convenience in some respects is similar to the case of Bradto. In that regard it is useful to note the Court of Appeal's acceptance of the primary judge's comments at [83].
3. In that context, it is noteworthy that the plaintiffs have previously submitted that the application for injunctive relief is entirely novel because nowhere has a court excluded a lessee from conducting lawful activity in its own leased premises. The Bradto decision suggests otherwise. Further, in City Cites (Rainham) Ltd v Price Carter [2002] EWHC 1496, Neuberger J (as his Lordship then was) considered whether an interlocutory injunction should be granted to require tenants to vacate their premises for 20 weeks. His Honour considered that justice would be best served by granting the injunction reasons which relevantly included:

(a) His Honour observed that sooner or later the work would have to be carried out and cause detriment to the defendants. There was a contract [to carry out the works] in place ready to go and apart from the short term interests of the defendants it was of benefit to the landlord and tenants of the whole centre that the work proceed at that time. Similarly, in the current proceedings (ie concerning Forrest Chase) the work will have to be carried out sooner or later and there is currently a construction contract in place with Lendlease. Apart from the apparent short term interests of the plaintiffs (in trading the Café in the middle of the night), it is of benefit to ISPT and the tenants of not only the redeveloped Forrest Chase but tenants of surrounding retail malls (eg Murray Street Mall and the Carillon) that the work proceed as soon as possible;

(b) the position was to be assessed by reference to the interest of the landlord and tenants but in the context of a case which concerns a shopping centre, also by reference to the interests of other occupiers of the centre. His Honour observed that 'the sooner this part of the centre ceases to be a building site...the better'. Similarly, in the current proceedings this is a relevant factor. The relevant context is the redevelopment of Forrest Chase and the Padbury Walkways. It is clearly in the interests of all of the tenants in these areas and surroundings areas (as well as commuters, residents and shoppers) to expedite matters so that the area is no longer a building site.

(c) Significantly His Honour also considered that it would be better to grant the injunction sooner so that the tenants did not suffer the disadvantage 'of being out of their units in the Centre during the Christmas season'. Similarly, in the current proceedings, it is important for the gantries to be installed as soon as possible and the works on the Padbury Walkways undertaken so as to minimise the risk that tenants, shoppers and the general public intending to attend Christmas events in Forrest Place are impacted during the Christmas period due to ongoing and delayed construction works.

1. Although this case concerned an injunction sought by a landlord against certain tenants, the relevant factors considered by the Court in granting the injunction apply. In that case it was the landlord who was carrying out the relevant works. In the current proceedings, it is ISPT who is carrying out the relevant works (under an agreement with the City of Perth, the landlord of the leased premises) which are adjacent to the plaintiffs' leased premises. Further, ISPT is not seeking an injunction to have the plaintiffs vacate their premises for 20 weeks. Instead they are only seeking for the plaintiffs to vacate their premises between 10.30 pm and 5.00 am on a limited number of weeknights.
2. It must be acknowledged that in Bradto and City Cites the lessor was seeking to exercise a contractual right to enter the premises whereas no such contractual entitlement as between the plaintiffs and ISPT exists here. That distinction be should be acknowledged but not overstated. The court in those cases was required to consider the possible injustice that might arise if the lessees were ultimately correct and there was in truth no entitlement to enter the premises or require them to be vacated. That is the same predicament that confronts the Court in this matter - here, there is a serious question as to whether the plaintiffs' presence in the premises amounts to a tort.
3. Moreover, it is not correct to say (as the plaintiffs appear to contend) that the existence of some form of property right (here, a lease) presents a barrier to the grant of relief. Esso Petroleum Co Ltd v Kingswood Motors [1974] QB 142 considered an application for a mandatory interlocutory injunction in the context of an allegation of interference with contractual relations. That alleged interference had ultimately resulted in property being assigned to another party so as to defeat the contractual arrangements. In opposition to the application for injunctive relief it was suggested that the court was constrained from interfering with vested property rights. At 156 Bridge J concluded:

'In my judgment the answer to it is that those doctrines really never meet at all because they are concerned with two entirely different things. The Tulk v Moxhay line of cases is not, as it seems to me, remotely concerned with the tort of conspiracy to induce breaches of contract, and I can see no reason whatever why the powers of the court to act against tortfeasors who bring about breaches of contract by other persons should be limited in the way suggested simply because the breach of contract which the conspirators have succeeded in inducing is one which involves the transfer of title to land ... I am not asked to enforce an equitable doctrine which makes some party not privy to a contract nevertheless liable in certain circumstances to perform that contract. I am asked to enforce the personal liability incurred by a tortfeasor to undo the consequences of his tort which could have been restrained before it was committed. In a proper case, I ask myself: what reason can there be in principle why the tortfeasor should not be ordered to undo that which he has done?'

The opposing submissions of the plaintiffs against interlocutory relief

1. The plaintiffs' first tranche of filed written submissions was likewise submitted in the context of contending ISPT's economic tort cause of action (as then pleaded under its first pleaded counterclaim) was untenable, such that that cause of action should be afforded summary dismissal. As mentioned, I struck out that pleading but did not grant a summary dismissal; rather, I gave leave to replead. There is now a consolidated repleaded defence and counterclaim by ISPT standing in the consolidated action.
2. I will set out pars 30 through 51 of the plaintiffs' written submissions of 22 June 2018 (court document 48), which attack the economic tort relied upon by ISPT in its counterclaim and also challenges ISPT's alleged damages claim. Additionally, the plaintiffs address a defence of justification to the economic tort. They say:
   1. The defendant's language of 'interference with contract' is imprecise. Similarly, the pleading of a 'direct' interference (at [64]) is imprecise, to the extent that it relies upon a (now) fallacious distinction between 'direct' and 'indirect' interference for the purposes of the tort; see OBG v Allan, 28 [34] et seq (Lord Hoffman).
   2. To the extent that the defendant pleads an action in tortious inducement (or 'procurement') of breach of contract, that action must fail, for the following reasons.

1. First, there was no accessory relationship which would bring the facts within the scope of the Lumley principle. The alleged liability is primary: the plaintiffs did not act in concert with Lendlease (or anyone else).
2. The case that appears to be put in the counterclaim is akin to a 'prevention' case, like Torquay Hotel Co Ltd v Cousins [1960] 2 Ch 106. The law has developed since then. As explained in OBG v Allan, [178] (Lord Nicholls):

'With hindsight it is evident that application of the Lumley v Gye tort to a 'prevention' case was unfortunate. There is a crucial difference between cases where the defendant induces a contracting party not to perform his contractual obligations and cases where the defendant prevents a contracting party from carrying out his contractual obligations. In inducement cases the very act of joining with the contracting party and inducing him to break his contract is sufficient to found liability as an accessory. In prevention cases the defendant does not join with the contracting party in a wrong (breach of contract) committed by the latter. There is no question of accessory liability. In prevention cases the defendant acts independently of the contracting party. The defendant's liability is a 'stand-alone' liability. Consistently with this, tortious liability does not arise in prevention cases unless, as was the position in GWK, the preventative means used were independently unlawful. (emphasis added.)'

1. As explained below, the plaintiffs' conduct was not independently unlawful.

B.2 Deeds should be captured by the unlawful means tort; there were no words by the plaintiff which induced a breach of contract

1. Applying the above dictum of Lord Nicholls, the tort of inducement of breach of contract should not be applied to cases of interference 'by deeds', where a person is prevented from performing their contractual obligations.
2. There were no other express words which induced any breach of contract. Accordingly, the defendant's pleaded facts ought to be properly characterised as a pleading of the unlawful means tort: OBG v Allan, [178] (Lord Nicholls).

36.1 Contra: Fortron Automotive Treatments Pty Ltd v Jones (No 3) [2011] FMCA 467, [135]: '[d]irect interference may be brought about by words (persuasion or procurement) or by deeds (disabling the person with whom the applicant has contracted from continuing with performance of the contract)'. The plaintiffs respectfully submit that the Court erred in advancing this proposition.

1. Any words that mentioned why the defendant or Lendlease should not do xyz were merely 'advice', directed to reasons which were already in existence, and of which the defendant and Lendlease were obviously aware.

37.1 Advice which leads to a breach of contract is not necessarily actionable. See Siemens Ltd v CEPU [2005] FCA 799; (2005) 223 ALR 480, 485 [19] (Finkelstein J):

It is, however, necessary to show that the breach of the contract has been 'procured' or 'induced'. Sometimes the cases have noticed a distinction between 'procuring' or 'inducing' which is said to be unlawful, and 'advice' which is said not to be unlawful. The prevailing view is that to induce a breach of contract means to create a reason for breaking it; to advise a breach of contract is to point out the reasons that already exist. The former is actionable while the latter is not ...

B.3 There was no intention to cause a breach of contract

1. In this context, intention requires that the breach of contract was either the defendant's desired end, or the means to the defendant's desired end: OBG v Allan, [8], quoted in Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403, [677].
2. The plaintiffs' intent plainly was to exercise its rights to trade and occupy the property in order to earn revenue. That intent, in turn, should be understood against the backdrop of the damage suffered by the plaintiffs as a result of the defendant's ongoing nuisance.
3. The plaintiffs' desired end was thus mitigation of their losses. The alleged breach of contract was not a means to that desired end; any loss suffered by the defendant would not make a difference to whether the plaintiffs were able to trade. There was certainly no 'predominant purpose' to injure: cf Khrapunov.
4. If the defendant were to argue that the plaintiffs had the requisite intent by way of lack of reasonable care, it should be noted that '[n]egligence or a lack of reasonable care is not sufficient to satisfy the requirement of intention': Polyaire Pty Ltd v K-Aire Pty Ltd [2003] SASC 41, [209], cited in LED Technologies Pty Ltd v Roadvision Pty Ltd [2012] FCAFC 3; (2012) 199 FCR 204, 213 [42] (Besanko J, Mansfield and Flick JJ agreeing).
5. On balance, the plaintiffs' state of mind was not sufficient.

1. It must be proved that the (alleged) breach of the contract has caused damage, or at least that damage can be inferred from the circumstances: Exchange Telegraph Co v Gregory & Co [1896] 1 QB 147; Bent's Brewery & Co Ltd v Hogan [1945] 2 All ER 570; Jones Brothers (Hunstanton) Ltd v Stevens [1955] 1 QB 275; Greig v Insole [1978] 3 All ER 449, 490 (Slade J).
2. The defendant's materials do not establish any breach or loss. In that regard, the plaintiffs note in respect of the contracts put in evidence:

44.1 Design and Construct Contract (NDV-1): There is no evidence of any claim or notice by any party against the defendant (or vice versa) in respect of loss or damage, for instance pursuant to clause 24, 34.9, or 39.7 of the Lendlease Contract. In any case, the contracts require (for instance in the case of clause 39.7, a remedy period). Subject to 39.7, there is no breach by reason of delay in the Principal giving possession of the site.

44.2 Development Management Agreement (MB-2): There is no evidence of any claim or notice by ISPT or the City of Perth against the other for loss or damage. In any event, the contract allows for 'flexibility' in the achievement of milestones (clause 6.8, 7.2) and caters for restrictions, closures and other changes that may occur from time to time (clause 18).

44.3 Works, Access and Licence Deed - Walkways and Works Area (MB-3): There is no evidence of any claim or notice by ISPT or the City of Perth against the other for loss or damage.

1. Even on the assumption that the defendant has suffered loss, then the plaintiffs' conduct was not the cause of that loss. Rather, that loss would be caused by 'idiosyncratic contractual arrangements' between the defendant and Lendlease: Marsh v Baxter [2014] WASC 187; (2014) 46 WAR 377, 433 [379] (Kenneth Martin J), cf Marsh v Baxter [2015] WASCA 169; (2014) 49 WAR 1, 45 [261] - [262] (McLure P, dissenting), 129 [785] (Newnes and Murphy JJA).

45.1 As Kenneth Martin J explained in Marsh v Baxter, 433 [379] [380]:

'Idiosyncratic contractual arrangements, consensually reached between accepting parties, might nevertheless prescribe what might more widely be assessed as a wholly unreasonable status quo from the broader community perspective.

For a contracting party to impose its adverse contractual outcomes arising from a private relationship upon outsiders to the contract as being off limits to scrutiny and effectively non-negotiable, is not an acceptable approach for the law to follow, in my view. A court, in unfettered fashion, needs to conduct an objective and holistic analysis, when assessing what are reasonable standards of conduct as between neighbours.'

45.2 Those comments were made in the context of a private nuisance claim, but are equally applicable to the context of the tort of inducing breach of contract.

1. It is accepted that 'justification' is a defence to inducement of breach of contract: Quinn v Leathem [1901] UKHL 2; [1901] AC 495, 510. Per OBG v Allan, 63 [193] (Lord Nicholls): 'For completeness I mention, but without elaboration, that a defence of justification may be available to a defendant in inducement tort cases. A defendant may, for instance, interfere with another's contract in order to protect an equal or superior right of his own, as in Edwin Hill & Partners v First National Finance Corpn plc [1989] 1 WLR 225'.
2. Romer LJ provided an explanation of the justification defence in Glamorgan Coal Co v South Wales Miners' Federation [1903] 2 KB 545, 574 - 5:

'Regard might be had to the nature of the contract broken; the position of the parties of the contract; the grounds of the breach; the means employed to procure the breach; the relation of the person procuring the breach to the person who breaks the contract; and ... to the object of the person in procuring the breach.'

1. The leading authority on justification is Zhu, where the High Court held as follows.

48.1 An act which would in itself be wrongful as infringing a legal right of another person may be justified if shown to be no more than was reasonably necessary for the protection of some actually existing superior legal right in the doer of the act. For the purposes of the tort of interference with contractual relations, actually existing superior legal right refers to a right in real or personal property or a right or duty found in statute.

48.2 Whether or not there were circumstances in which an equal right of the defendant may provide a justification for inducing a breach of the plaintiff's contract, a merely contractual right of the defendant equal to and inconsistent with the plaintiff's right to contractual performance does not provide justification, unless the defendant's contract was a specifically enforceable contract to sell property which passed an equitable interest to the defendant. Temporal priority of other purely contractual rights will not suffice.

1. A parallel may be drawn between the 'reasonably necessary' test for justification in the context of inducement, and the test for reasonableness of interference with use and enjoyment of land in the context of private nuisance. In this case, they are two sides of the same coin. In Southern Properties, McLure P held that, in the context of nuisance, regard should be had to:

the nature and extent of the harm or interference, the social or public interest value in the defendant's activity; the hypersensitivity (if any) of the user or use of the claimant's land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference ...

50.1 The plaintiffs possess actually existing superior legal rights relative to the defendant.

50.2 The plaintiffs' leasehold interest is a proprietary interest. As occupier, the plaintiffs' interest 'in the use and enjoyment of land is broad and comprehensive': Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1, 44 [251] (McLure P). It is not merely contractual. Moreover, the plaintiffs' rights under its Lease are not restricted in terms of trading hours.

50.3 The plaintiffs' interest in carrying on their business is also statutory in nature: it is permitted within the statutory framework of the Retail Trading Hours Act 1987 (WA): s 4 excludes restaurants, cafes, and takeaway food shops.

50.4 The contract allegedly broken is one to perform works - though as noted it is not altogether clear (and not established on the materials filed by the defendant) that there has been breach, let alone that there has been any loss.

50.5 In any event, the fact that the works constitute a nuisance to the plaintiffs makes the plaintiffs' conduct all the more reasonable - the plaintiffs are merely mitigating their own loss by trading.

50.6 The unequal bargaining power between the plaintiffs (the defendant is in a position of power) should also be taken into account.

50.7 If the plaintiffs acceded to the defendant's requests to vacate the premises, they would not only lose the opportunity to mitigate their losses, but would lose their cause of action in respect of a continuing or future nuisance altogether.

1. Further, per Balkin and Davis (inter alia) it must be proved that a breach of contract has caused damage, or at least that damage can be inferred. In that regard, the only evidence proffered by the defendant is as to 'wasted costs' of approximately $50,000 due to the mobilisation/demobilisation of the crane on 20 February 2018 (for which the defendant does not claim and may not be liable), and a suggestion that the gantry cost in the region of hundreds of thousands of dollars to fabricate (but it is not suggested there is any actual loss in that regard). There is no evidence of loss flowing from events on 6 March. In any event, the defendant appears to accept they were informed by Mr Frank Agnello of the plaintiffs' intention to trade on that night (and each other night) prior to the events.
2. On 24 July 2018, the plaintiffs filed further resisting written submissions now directly opposing the interlocutory injunction as sought by ISPT. Again, for speed and convenience, I will set out pars 97 through 102 verbatim of those further written submissions.
   1. As explained in the Plaintiff's Summary Judgment Submissions, as a prevention case, the defendant's counterclaim ought to be determined with reference to the tort of unlawful means, as articulated in OBG v Allan.
   2. If an inducement of breach of contract action is nonetheless pursued, it must fail, for the following reasons.
   3. First, as explained in Part 3.1 above, the defendant has not suffered actionable damage.
   4. Secondly, and fundamentally, there has been no breach of contract: see Part 2 above. Breach of contract 'is of the essence' of the tort of inducement of breach of contract under Lumley v Gye: OBG Ltd v Allan, 20 [8] (Lord Hoffman). An injunction for inducing breach of contract should only be ordered if the breach is complete: Delphic Wholesalers Pty Ltd v Elco Food Co Pty Ltd (1987) 8 IPR 545, 554 (McGarvie J).
   5. Thirdly, as explained in the Plaintiff's Summary Judgment Submissions Part B.3, there was no intention to cause a breach of contract.
   6. Fourthly, as explained in the Plaintiff's Summary Judgment Submissions Part B.5, the plaintiffs have a justification defence.
3. From that edifice of collecting the exchanged written submissions describing at great length the respective rival positions of the parties on this application, I can now turn to canvas some general principles concerning interlocutory injunctions, before indicating my views upon the present application of ISPT.
4. Broadly speaking, however, I can say at this time that in the present context I do prefer the submissions of ISPT upon the interlocutory viability of its economic tort cause of action. I render that assessment, I would reiterate, in the context of my assessment of its respectable arguability to establish a prima facie case (on ISPT's counterclaim) upon the present application.

Some general interlocutory injunction principles Urgency

1. I am satisfied that in the present circumstances the application for interlocutory injunctive relief is urgent, as contended by ISPT.
2. I am also satisfied that on the Forrest Chase redevelopment works programme, as explained in ISPT's affidavit materials, there will be significant delays - if gantry installation work which ISPT, so far has been thwarted to date from implementing proximate to the Bocelli Espresso Café, is not begun at least towards an installation of the proposed gantries during August 2018.

1. Next, I am also satisfied on all the evidence that ISPT has established (indeed, the point was hardly in dispute) that there is a real and ongoing threat that unless disturbed by an order of this court the human presences, being works interruptive events happening by or at the behest of the plaintiffs at the Bocelli Espresso Café at aberrant trading hours will almost certainly continue to be deliberately implemented by the plaintiffs into the foreseeable future. Correlatively, I am also satisfied that this ongoing conduct is likely to deliver highly deleterious financial consequences for ISPT in terms of higher construction and associated cost blow-outs arising from ISPT's contractors being unable to optimally complete by the autumn of 2019 the demolition, reconstruction and redevelopment of the Padbury Walkways above the leased Bocelli Espresso Café premises at Forrest Place and surrounding works.

1. I have already pointed out, but I will repeat, that the present interlocutory exercise is not in the nature of a trial.
2. The nature of an application for an interlocutory injunction proceeds upon a basis of established legal criteria. Essentially, it involves a two limb assessment. The first limb assesses the present strength of the cause of action of the applicant at a trial (in this case, the strength of ISPT's counterclaim on its economic tort cause of action). Second, and to be assessed as an interdependent limb, is the so-called 'balance of convenience', arising from a consideration of potential consequences on each side from either the grant of, or the refusal of the interlocutory injunction sought.
3. The first limb of the test is sometimes approached by asking whether a prima facie case (or a serious question for trial) has been established as a matter of arguability by the applicant. Many prior cases have canvassed this territory in Australia, but see, in particular, the High Court of Australia's decisions in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57; and more locally, Newnes JA's observations in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105, [87].
4. Also frequently cited as helpful in this context is the clear synthesis of case authority used at first instance in this court in the reasons of Beech J in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [12].
5. Those observations are, with respect, a convenient start. His Honour explained:

In Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148, 153, Mason ACJ summarised the principles governing the grant or refusal of an interlocutory injunction as follows:

In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

That summary was adopted by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, 217. These principles have been routinely applied in this and other courts in Australia.

These principles were further explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, [65] - [71] (Gleeson CJ and Crennan J agreeing). Their Honours stated that the relevant principles are those stated in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, where the two main inquiries were said to be whether the plaintiff had made out a prima facie case and whether the balance of convenience favours the grant of the injunction. The phrase 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks: [65], [71].

The apparent statement by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396, 407 that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, there will be a serious question to be tried, is not to be followed. The governing consideration is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought. These principles make it clear that the various considerations identified by Mason ACJ in Castlemaine Tooheys are to be considered together.

As the apparent strength of the applicant's case diminishes, the balance of convenience moves against the making of an order: Glenwood Management Group Pty Ltd v Mayo [1991] VicRp 45; [1991] 2 VR 49, 54 - 55; Todd v Novotny [2001] WASC 171. The grant of an injunction involves balancing the injustice which might be suffered by the defendant if the injunction is granted and the plaintiff later fails at trial, against the injustice which might be suffered by the plaintiff if the injunction is not granted and the plaintiff later succeeds at trial: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670; Madaffari v Labenai Nominees Pty Ltd [2002] WASC 67 [14].

In some senses, the plaintiffs' application seeks interlocutory mandatory relief, in that it seeks an order compelling the defendant to undo its re-entry and permit the plaintiffs back into possession of the premises. The principles relating to interlocutory mandatory injunctions were explained in Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471, 483 - 484, and Films Rover International (679 - 682). In some cases, it is said that an interlocutory mandatory injunction should be granted only if the court has a high degree of assurance that the plaintiff will succeed at trial. However, ultimately the question is as to the balance of the risk of injustice. In considering that balance the court must take into account the nature and consequences of the particular injunction sought.

1. In present circumstances, I am satisfied from all the material put before me that ISPT, by its counterclaim, has made out a respectable prima facie case - based upon its invocation of its economic tort cause of action contending against the plaintiffs that they have intentionally interfered with ISPT's contractual relationships with both Lendlease and the City of Perth, already causing financial loss thereby to ISPT and with more financial losses on the horizon if an injunction is not soon granted to ISPT.
2. In reaching that interlocutory assessment, I did pay particular attention to the arguments of law put up by Mr Bennett's submissions for the plaintiffs in resistance. Those submissions were heavily grounded upon a legal contention that absent any reliance by ISPT upon another (distinct) tort as articulated by Lord Hoffman in OGB v Allan (namely, the tort of intentional infliction of economic harm by unlawful means) there is no presently arguable economic tort counterclaim open to ISPT. With respect, I cannot accept that submission, as regards ISPT's prima facie case, when it is assessed at the level of its present arguability in Australia.
3. On the current state of the law of Australia (collected in ISPT's written submissions seen earlier) both prior and subsequent to OGB v Allen, it seems to me that there is a more than healthy body of Australian cases supporting ISPT's cause of action as framed. As regards ISPT's serious question or prima facie case, my only concern before a trial is in evaluating the potential successful arguability of ISPT's economic tort cause of action at a future trial. In deference, however, to Mr Bennett's closely researched submissions on what is a novel legal argument, I would add that I reach this interlocutory position on the prima facie case arguments for two major considerations.
4. First, it seems clear from the terms of all the reasons in OGB v Allan that even in rejecting the socalled 'unified theory' (said to have emerged as a result of seeds of confusion begun by Quinn v Leathem [1901] UKHL 2; [1901] AC 495 Lord Hoffman's speech at [15]), that the discrete tort of inducing a breach of contract was still clearly recognised, albeit then separated. Again see Lord Hoffman's speech at [39] - [44].
5. An essential component of the OGB reasons draws a distinction between the tort of intentionally inducing a breach of contract and the then separated tort of intentionally causing loss by unlawful means. That second tort has not yet been accepted in this country at the highest level by the High Court of Australia.
6. As I assess Lord Hoffman's reasons, they would, if accepted, cast a level of doubt over the 'direct and indirect' interference distinction aspects of the original Lumley v Gye breach procurement tort. Again see Lord Hoffman's reasons at [38], where that distinction was described as conceptually unsatisfactory. (But I would note that ISPT's counterclaim alleges what are direct and a not indirect acts of interference by these plaintiffs. So that aspect of OGB would not seem to present here as being of material significance). But the first point is that OGB casts no doubt at all upon the validity of the tort of intentionally inducing a breach of contract. Only the potential reach of that wellestablished tort is questioned in some respects by OGB, in the context of the identification of a separate and distinct further test of causing loss by unlawful means.
7. Second there is a key distinction as identified under [44] of Lord Hoffman's reasons by reference to his observations going back to in those made by Lord Denning MR in Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 at 138. Lord Denning MR was of the view that there could be liability under the interference tort for the preventing or hindering the performance of a contract, albeit this conduct may not rise to the level of proving a breach of the contract - upon the same principles as liability was proven for the procuring a breach of contract. That dictum was approved subsequently by Lord Diplock in Merkur Island Shipping Corporation v Laughton [1983] 2 AC 570, 607 608.
8. As to that Torquay Hotel extension of the Lumley v Gye tort to include the obstruction of the performance of a contract, Lord Hoffman observed in OGB:

One could therefore have liability for interference with contractual relations even though the contracting party committed no breach. But these remarks were made in the context of the unified theory which treated procuring a breach as part of the same tort as causing loss by unlawful means. If the torts are to be separated, then I think that one cannot be liable for inducing a breach unless there has been a breach. No secondary liability without primary liability. Cases in which interference with contractual relations has been treated as coming within the Lumley v Gye tort ... are really cases of causing loss by unlawful means.

1. Mr Bennett for the plaintiffs, in seeking here to confine the Lumley v Gye procurement tort to pure breaches of contract only and for it not to extend to cover scenarios of merely inhibiting the performance of a contract under the Torquay Hotel approach of Lord Denning, attempted to find some local support for a socalled supremacy of the OGB decision as regards a tort of unlawful means from the post OGB decision of Pritchard J in Hardie Finance Corporation Pty Ltd v Ahern [No 3] [2010] WASC 403. Her Honour's reasons, with respect, contain at between [675] - [702] a meticulous review of all the speeches of members of the House of Lords from a perspective of her Honour's need within that trial to decide if the unlawful means tort was of any application (ie, in Australia).
2. Her Honour identified in her reasons multiple considerations both for and against that proposition at [704] - [719].
3. But the reasons in Hardie Finance [No 3] were rendered in a context of a trial - where a final determination was needed concerning the asserted unlawful means tort as the plaintiff's cause of action with that plaintiff only arguing for the unlawful means tort as its cause of action not the interference with contractual relations tort (and in the end unsuccessfully).
4. Pritchard J at the outset of those reasons had very clearly identified the distinction between the unlawful means tort and the distinct tort of an interference with contractual relations, but which was not being contended for in that trial: see at [672] and [674].
5. Her Honour's reasons explicitly recognise what is the extensive body of case law in Australia applying the (distinct) tort of interference with contractual relations. I mention the observations (see [111]) concerning the decision of the High Court in Zhu v Treasurer of the State of New South Wales [2004] HCA 56; (2004) 218 CLR 530 (involving the procurement of a breach of contract cause of action tort, and where the appeal to the High Court was essentially concerned only with evaluating an (unsuccessful) defence of justification against the conceded elements of the procurement tort). Her Honour proceeded to refer to decisions in intermediate courts, including by the Full Federal Court of Australia and by the New South Wales Court of Appeal, both discussing and applying the elements of the tort of interference with contractual relations: see Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 [159] - [157] and Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1995] FCA 1368; (1995) 58 FCR 26 (Lindgren, Lockhart and Tamberlin JJ). See also her further references to first instances authority, namely Orica Investments Pty Ltd v McCartney [2007] NSWSC 645 [323] - [332] (White J) and Spotwire Pty Ltd v Visa International Service Association Inc [2003] FCA 762 [66] - [70].
6. I do not assess the reasons in Hardie Finance Corporation v Ahern [No 3] as casting any doubt upon the substantial body of Australian case law recognising and applying the procurement of breach economic tort. In any event, the many Australian decisions about the inducement tort coupled to the further cases, collected together in ISPT's written submissions, both pre and post OGB, are simply too voluminous and too well established. These and too many such cases decided in this country for them to be regarded as having all been incidentally disposed of by OGB v Allan. Absent a decision of the High Court of Australia reversing them all, I would be inclined to follow them, contrary to Mr Bennett's submission.
7. I refer locally, in respect of the procurement of breach economic tort, to the very clear exposition of the principles by Master Newnes (as he then was) in Boase v Seven Network (Operations) Ltd [2005] WASC 269 [32] and [34] (a decision given prior to OGB, but which was thereafter applied post OGB by Le Miere J in Jaddcal Pty Ltd v Minson [2011] WASC 28). Le Miere J expressly applied the observations of then Master Newnes in Jaddcal.
8. There is also, with respect, a most persuasive discussion of the viability of the procurement tort after OGB in multiple respects, including the Torquay Hotel's performance inhibition aspects extending to interference with the performance of a contract, discussed by Beach J in the Federal Court at first instance in Donaldson v Natural Springs Australia Ltd [2015] FCA 498, 203, 210, 217 and 223, as cited in the written submissions of ISPT. Those reasons dismiss and rationalise many of the economic tort cases, including OGB.
9. To all that may be added the recent decision of White J at first instance in the Federal Court in Mastec Australia Pty Ltd v Trident Plastics (SA) Pty Ltd [No 2] [2017] FCA 1581 [197], rendering a similar undiminished view of the Australian case law upon the breach procurement tort notwithstanding OGB.
10. I also note some Australian textual commentary under a heading 'International Interference With Trade Or Business' found in Halsbury's Laws of Australia at [415 - 1550] to like effect and which has been judicially followed in Terry Cross Financial Services v Misiti [2008] NSWSC 1365 [17].

1. For present interlocutory purposes then, as a matter of the assessed arguability of ISPT's cause of action based on the alleged economic tort of inducing a breach of contract (which would include inhibiting the performance of that action), (until the High Court of Australia expresses a contrary or revised view), I would as regards ISPT's invoked tort of intentionally interfering with contractual relations (but not a more problematic tort not yet recognised by the High Court of Australia causing loss by unlawful means) apply what I assess to be the broadly consistent formulation of that Lumley v Gye procurement tort explained under decisions of Master Newnes, (as he then was), and by Le Miere J in this court and by Beach J and White J in the Federal Court of Australia to which I have referred.
2. The upshot of all that, contrary to the submission of Mr Bennett for the plaintiffs, is that assessed at a level of arguability, I conclude that ISPT does not presently need to show any unlawful conduct by these plaintiffs where there is shown to exist (arguably) elements of direct persuasion, procurement, inducement or other forms of interference by or at the behest of the plaintiffs and which bears upon the causing and procuring of a breach of a contract. In Australia, that procurement tort would still extend to preventing or inhibiting the performance of a contract by the knowing and intentional interference with contractual rights.
3. As regards Mr Bennett's further submission concerning an overwhelming likely existence of a defence of justification for the plaintiffs, predicated upon the plaintiff's enhanced position as lessees of the Bocelli Espresso Café holding superior proprietary rights as lessees, I would also not accept that submission. Any such defence is not obvious and is in any event, a matter for a trial.
4. Lords Sumption and Lloyd-Jones in JSC BTA Bank v Khrapunov [2018] UKSC 19 [6] said this about the economic torts, generally:

Along with tortious misrepresentation (fraudulent or negligent), passing off, slander of title and infringement of intellectual property rights, the economic torts are a major exception to the general rule that there is no duty in tort to avoid causing a purely economic loss unless it is parasitic upon some injury to person or property. The reason for the general rule is that, contract apart, common law duties to avoid causing pure economic loss tend to cut across the ordinary incidents of competitive business, one of which is that one man's gain may be another man's loss. The successful pursuit of commercial self-interest necessarily entails the risk of damaging the commercial interests of others. Identifying the point at which it transgresses legitimate bounds is therefore a task of exceptional delicacy. The elements of the four established economic torts are carefully defined so as to avoid trespassing on legitimate business activity or imposing any wider liability than can be justified in principle.

In other words, the tort of interfering with contractual relations (the Lumbley v Gye tort) as developed and explained under Australian law would present as a qualification and exception to any more general principle about the permissibility of inflicting financial harm upon a business competitor.

1. So then, I will proceed from here upon a basis that ISPT has established a serious question or prima facie case on its economic tort cause of action the subject of its claim. Even so, I am further required, at interlocutory level, to assess its likely strength: see observations of Newnes JA, with whom McLure P and Corboy J agreed in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [102], applying the approach of Samsung Electronics Co v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 [59], [87] - [88].
2. Here, I would assess the strength of ISPT's counterclaim economic tort cause of action from the perspective of its ultimate success at trial, as not overwhelming but, nevertheless, currently better than even. I say 'not overwhelming' because the establishment of the requisite anterior contract knowledge and of a deliberate intent to inhibit the performance of ISPT's contracts in the plaintiffs with either or both of Lendlease and the City of Perth at a trial, will need to be proved by ISPT against the presently foreshadowed contrary intention evidence of Francesco and Giuseppe Agnello.
3. Those directors and representatives of the plaintiffs presently contend that the human presences all presenting conveniently late at the Bocelli Espresso Café premises and which for safety and occupational health considerations had generated an effect of thwarting the proposed gantry installation work by ISPT's contractor during March and June 2018, was for a different purpose. They say, in effect, the Café was open then to make good trading losses incurred due to the effect of the private nuisances arising out of the Forrest Chase redevelopment works which started in February 2018 and that presumably the persons present just happened to be there at those extended trading hours.
4. Still, I am presently sceptical about what presents to me as a wholly uncommercial position.
5. It is for ISPT at trial to prove a more malign intent in the plaintiffs, for which it contends as part of its economic tort.

1. Showing a respectable prima facie case does not sit by itself to be evaluated on a stand alone basis. There is an interdependency as between that factor and the other major interlocutory injunction criteria required to be evaluated - namely, the balance of convenience and the adequacy of common law damages assuming success at a trial.
2. On a common law cause of action argued by a plaintiff who is an applicant for an interlocutory injunction, a court needs to assess whether an award of common law damages to the applicant after a trial, instead of an interlocutory injunction, would be an adequate and just outcome. As to that, again see Newnes JA's observations in Mineralogy v Sino Iron [2016] WASCA 105 at [87]. Then subsequently, see Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [131] particularly at footnote 160.
3. The Court of Appeal in Mineralogy v Sino Iron [2016] WASCA 105 concluded that notwithstanding some older case authorities, for circumstances where a party is seeking, in effect, what is a mandatory injunction, no more stringent and different legal test was to be applied than that applicable in seeking the more usual negative restraint interlocutory injunction: see again Newnes JA's observations to that issue at between [76] to [85]. The old high degree of assurance test for mandatory injunctions was not applicable albeit even on the usual test vigilance is called for if a respondent is to be compelled, in effect, to do something positive, or if the effect of the relief delivers victory or a quasivictory to the applicant before any trial.
4. Those observations resonate for the present circumstances. The plaintiffs, in resisting this injunction application, contend that, although couched as a negative restraint, the terms of the injunctive relief as sought under par 3 of ISPT's chamber summons would essentially seek to compel them as to when and how they might otherwise choose to trade and to conduct the hours of the Bocelli Espresso Café business operation on their leased premises and in a fashion which is in substance mandatory and not solely negative or prohibitory.
5. As to any positive/negative legal distinction in the framing of injunctive orders, see Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670, cited by Newnes JA in Mineralogy [2016] WASCA 105 at [79] - [80] for the characterisation of the distinction as a 'semantic argument'. A more relevant question of substance is 'whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction', noting also his following observations approving text in Meagher, Gummow & Lehane (5th ed, 2015) 21-395:

In the application of the normal tests, often, though not always, the fact that the relief sought is mandatory will tilt the balance of convenience in the defendant's favour.

1. That led Newnes JA, in Mineralogy however, to observe at [96]:

No doubt that is at least one of the reasons that mandatory injunctions are rare.

1. Another related point made by the plaintiffs in resisting interlocutory relief is that what is sought is essentially final relief in character. In other words, they say that if ISPT obtains the interlocutory injunctive orders in the terms as sought, it will certainly then proceed to implement, largely as planned, its Forrest Chase development works, including the redevelopment of the Padbury Walkways and with that all likely coming to pass before any trial on the substance of ISPT's counterclaim.
2. Mr Bennett suggested essentially that in such events the ISPT counterclaim would likely never go to a trial, even though ISPT says that it has already suffered some financial damage to date arising out of the March and June 2018 human presence, interruption events, frustrating the then intended gantry installation works on those occasions at the Bocelli Espresso Café. That (limited) financial loss and damage already sustained, ISPT says it is entitled to pursue at a trial, and irrespective of its success in obtaining the interlocutory relief. Even so, the force of Mr Bennett's point must be acknowledged as regards ISPT achieving in the short term on a summary outcome a result possibly better than what it could achieve at a successful trial, where it was awarded only common law damages.
3. ISPT says, of course, that if it does not obtain the interlocutory relief enabling it to timeously install the gantries and thereby advance all the Forrest Chase redevelopment works it contemplates, including at and above the areas around the Bocelli Espresso Café, that even when it succeeds at a trial upon its economic tort counterclaim its loss and damage will be of a large financial magnitude and may well be irrecoverable from these plaintiffs.
4. ISPT's position is that it would, absent getting the injunction as now sought, complete as much of the redevelopment works in the Forrest Chase area as it can, then demobilise, with the works left unfinished. That would be the position until the expiry of the Bocelli Espresso Café lease at some time in 2021. Assuming the plaintiffs' lease is not renewed by the City of Perth (only an assumption, of course) ISPT would then remobilise again and then finally complete the balance of the works to the Padbury Walkways some time in 2021.
5. That delayed finish works result to 2021, of course, would see not only the likely incurring of extra demobilisation and remobilisation costs by ISPT, but also a much longer and drawn out process of leaving what would be unfinished works and temporary structures in the overall vicinity of Forrest Chase/Forrest Place, detracting from the aesthetic look of the location, for adjacent business premises or wouldbe lessees from ISPT. But also that delay to 2021 would detract from the overall amenity of what is an important public space in Forrest Place for the general public of Perth for a much longer period than would otherwise have been the case if the whole redevelopment were to be implemented by ISPT's contractors as planned finishing (largely) by the autumn of 2019.
6. As regards the wider public interest as a relevant consideration to be weighed, I observe that the Court of Appeal in Sino Iron v Mineralogy [No 2] [2017] WASCA 76 said this, as regards interlocutory injunctions (see [13]) (and by way of endorsement of the observations of the Full Federal Court in Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 [69]):

In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third parties are relevant and have more or less weight according to other material circumstances; whether those interests tend to favour the grant or refusal of an injunction in any given case depends upon the circumstances of the case; and hardship visited upon third parties or the public generally by the grant of an interlocutory injunction will rarely be decisive.

1. Here the position is somewhat unique. The contention by ISPT is that the general public and traders generally in the vicinity of Forrest Place will all likely be adversely affected - if it cannot complete its overall redevelopment works for Forrest Chase and Forrest Place, including the Padbury Walkways, on an uninterrupted basis and as soon as is feasible.
2. There is more to say about other aspects of the balance of convenience factors to be weighed on this injunction. Before that, however, I need to address a late affidavit of Michael David Barr, which was only received on 31 July 2018. Its receipt arose out of my request to Mr Solomon, senior counsel for ISPT, during his reply submissions, to clarify precisely the anticipated timing and duration of works associated with the demolition and redevelopment of the Padbury Walkways in the vicinity of the Bocelli Espresso Café.
3. It is necessary to recite that further evidence in some detail in the next section of these reasons.

Affidavit of Michael David Barr affirmed 31 July 2018 (court document 96)

1. My dialogue with Mr Solomon during his reply submissions on 30 July 2018, led me to say that I required greater precision in terms of the likely timing and duration of all the intended works to take place above the Bocelli Espresso Café - since the arguments of counsel that day had exposed what was being proposed by ISPT as extending well beyond a mere installation of a ('singular') gantry (ie, a steel beam) above the Bocelli Espresso Café and another over the Alfresco Area of the Café.
2. By reference to a lawyers' communication of 11 June 2018 found in Mr Gurukugan's affidavit ISPT's lawyers, Allens Linklaters, had then advised the plaintiffs' lawyers in terms then suggesting works of a duration of approximately 40 nights duration.
3. However, that anticipated works duration position after argument, was less than clear.
4. It was something of a revelation then to read the contents of Mr Barr's further affidavit of 31 July 2018. It read:
   1. From my involvement in this planning and implementation, which requires me to work closely with ISPT's contractor Lendlease, I am aware that the current best estimate of the timing of works on the Padbury Walkways in the vicinity of the Bocelli Café that require the Bocelli Café premises to be vacant and which involve and/or will be facilitated by the installation of the gantries is as follows (none of which will occur on Friday or Saturday evenings):

(a) Installation of a gantry above the Bocelli Café: approximately five nights of work, between 10.30 pm and 5.00 am the next day;

(b) Demolition of the existing Padbury Walkways behind the Bocelli Café: approximately 31 nights of work between 10.30 pm and 5.00 am the next day;

(c) Installation of a gantry above the Bocelli Café Alfresco Area: approximately five nights of work, between 10.30 pm and 5.00 am the next day;

(d) Demolition of the escalators, canopy and concrete structure relating to the bridge over Murray Street: approximately 11 nights of work between 10.30 pm and 5.00 am; and

(e) A further 45 nights of work, between 10.30 pm and 5.00 am to install the new Padbury Walkways, escalators, canopy and structure relating to the bridge over Murray Street and remove both the gantries.

1. These estimated timeframes are best estimates and it is possible that they could be impacted by unforeseen matters such as inclement weather conditions or unresolved technical or sequence in difficulties with the work. It is also possible that the time required to carry out these works may be shorter than these estimates if the work is able to proceed more expeditiously than currently contemplated.
2. Assuming that it is possible to commence installation of the Café gantry on 21 August 2018 (notice of which would need to be given by ISPT to Lendlease by 7 August 2018) the last date upon which the works would require the Bocelli Café to be vacant is forecast to be 17 April 2019.
3. On 31 July 2018, at a further chambers appointment (at which I had intended to deliver an extempore decision on the injunction application), Mr Bennett, senior counsel for the plaintiffs, raised strong objections following the late receipt of this late information from ISPT and Mr Barr. More particularly, he (legitimately) complained that it contained no explanation at all for why the newly received works duration information now varied to such a significant extent beyond the prior (albeit loose) estimate of around 40 nights work as the underlying assumption of himself (and me) across the course of arguments the previous day. A new anticipated position of 97 nights of anticipated works was significantly greater than all counsel and the court had previously been working upon.
4. The lack of any real explanation about this issue by ISPT was unable to be explained by senior counsel for ISPT, beyond the urgency of the present application. That was less than convincing.
5. I must accept Mr Bennett's submission that the unexplained and significantly greater ISPT assessment about the proposed duration of ISPT's works was unsatisfactory. However, it is what it is.
6. The duration of the intrusion sought under the interlocutory injunction was greater than was previously revealed. I do not make a finding that that situation was intentional from ISPT. But it was both unsatisfactory and unacceptable. Had the present application been for ex parte relief by ISPT these emerging revelations would have provided a basis for any ex parte order made to be immediately discharged as of right.
7. The extra information of 31 July 2018 from Mr Barr then led me to suspend a proposed delivery of reasons, in order to completely reconsider again the position now as altered by the extra information in Mr Barr's further affidavit.
8. Upon considering all materials again, that led me to have my associate communicate with the solicitors for ISPT to seek greater and more precise information about the structure(s) proposed to be erected above area of the Bocelli Espresso Café premises - after the initial installation of the gantries (see my associate's letter of 1 August 2018). That resulted in four more affidavits from Mr Barr on that issue and to further arguments on Friday 10 August 2018. Even then ISPT's information still needed to be corrected to say once and for all what was being proposed above and beyond the Bocelli Espresso Café and its Alfresco Area.
9. The further forthcoming information then needed to be assimilated on all sides. Since 10 August 2018 there emerged even further affidavits from Mr Barr as seen collated in the 'Affidavit Evidence' record referred to earlier on each side. Mr Barr's last affidavit explained that some scaffolding to be covered by canvas would be needed in the vicinity of the Bocelli Espresso Café. Late as that new information finally emerged, it does not bear upon my end conclusions on this application.

Balance of commercial factors in the evaluations of the interlocutory injunction application: viability of common law damages

1. Essentially, the present application seeks that the court grant ISPT pretrial assistance by a discretionary equitable remedy, namely an interlocutory injunction. I have now identified and discussed ISPT's underlying cause of action on its counterclaim for alleged interference by the plaintiffs with contractual relationships as articulated by ISPT under its amended counterclaim a purely common law cause of action.
2. Hence, it is necessary to evaluate whether the usual remedy of the common law, namely damages awarded after a successful trial would be sufficient for ISPT upon its (assumed) success at a trial, or whether the position is such that post trial common law damages would be insufficient to do justice in all the circumstances.
3. There remains some debate about whether the issue of (common law) damages as being an adequate remedy, is a stand alone requirement, or whether it is to be evaluated as a part of the overall balance of convenience that is weighed considering the grant of an interlocutory injunction. As to that, see observations of the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [131] rendered as regards interlocutory injunctions (noting the Full Federal Court authority cited in footnote 160) and contrasting further observations that court rendered upon the equitable remedy of specific performance and analogous equitable relief at [136] concerning Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 [78] [79] (Brennan CJ, McHugh, Gummow, Kirby & Hayne JJ).
4. Given the observations under footnote 160 of Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] concerning mandatory interlocutory injunctions tantamount to grants of final relief for specific performance, in this instance I have assessed the potential adequacy of common law damages as a stand alone factor separate from other balance of convenience factors, at least initially, before I weigh the residue of other balance of convenience factors.
5. I recognise, of course, that the injunctive relief now sought by ISPT would not be a grant of relief that is akin to specific performance. Nevertheless, it would approach, on my view, if granted, relief akin to final relief for ISPT obtained on a summary basis, ie, relief granted without a trial. Hence, there is a need for particular caution and hesitancy about granting such far reaching relief without a trial.
6. Were interlocutory injunctive relief to be granted in the terms that ISPT seeks, it should then be able to proceed with its overall Forrest Chase redevelopment works, as originally planned or close to that. ISPT would not then need to 'work around' the Bocelli Espresso Café premises area and then need to return later in 2021 to finish off works on the Padbury Walkways above the location of the Bocelli Espresso Café at the end of that lease (if that transpired).
7. It could be argued that ISPT's counterclaim can still see it, at a trial, claim its common law damages already incurred and arising out of the wasted expenditures incurred due to the frustration of its gantry installation work in March and June 2018. But on any view, the scale of any incurred damages by ISPT to date looks to be, comparatively, of a smaller magnitude than the future likely costs or losses for ISPT potentially associated with needing to presently work around the Bocelli Espresso Café area, only to return later to finish off the Padbury Walkways work above and around the Café again in 2021.
8. There is force in Mr Bennett's argument therefore that were the present relief to be granted against his clients, there is a good prospect that there will never be a trial of ISPT's counterclaim - as ISPT would have achieved on an interlocutory basis most, if not all of what it really seeks. That is another reason for particular caution at this time. Whilst the principles concerning granting of interlocutory injunctions do not on the current law vary as between negative and mandatory injunctive orders, nevertheless if the outcome of interlocutory orders would be tantamount, in effect, to the giving of final relief, then that must be a strong negative consideration for the court to weigh up in the overall balance of convenience - albeit not a conclusive negative factor. It is also necessary to comparatively weigh the damage or prejudice to the interests of the plaintiffs before trial on the hypothesis of such interlocutory relief being given now.
9. As regards the question of the adequacy of common law damages for ISPT, assuming success for it on its counterclaim at a trial, I would accept its argument that its post trial damages award would be difficult to quantify, particularly as regards the effect of the likely damaged commercial relationships with its tenants at Forrest Chase, arising out of a delayed completion to all the redevelopment and affecting works (negatively impacting against) ISPT's prospective Forrest Chase tenants. That consideration bears upon the difficulty of a court quantifying at a trial with any real precision all ISPT's lost opportunity financial losses flowing out of suffering exposure to the economic tort complained of, if established at a future trial. I am also of the view that albeit difficult to quantify, the end damages of ISPT could be of some potentially high financial magnitude. And further, I assess the position to be that the economic prospect of ISPT's damages award actually being recovered back from one or other of the plaintiff corporations, would be uncertain.
10. There is little, if any, financial information provided to me about the financial wherewithal of the two plaintiff corporations. I do note that within their ongoing private nuisance action that they have refrained from seeking an interlocutory injunction predicated on their alleged cause of action for private nuisance as against ISPT - on a basis of them not wishing to expose themselves upon the usual required undertaking as to damages which would 'bite' in the event of failure on their private nuisance action at a trial.
11. I do not criticise that stance of the plaintiffs. It seems on its face to be taken with the benefit of sensible legal advice, from an end exposure perspective. It is insightful however. I contrast the financial positions of the plaintiffs against that of ISPT. ISPT presents on its face as a corporation of far greater financial means. The 'David versus Goliath' comparison of their relative economic strengths, is not out of place here.
12. So, in evaluating the potential future adequacy of a possible substantial award of common law damages to ISPT upon a successful counterclaim after a trial, I weigh in the overall balance, a substantial risk that ISPT, even if successful, would not recover those damages in an end result due to the financial means of the plaintiffs. For circumstances where a right to receive damages at the end was assessed (weighed against a grant of injunctive relief) as being completely illusory: see Halsham CJ in Equity's decision in Schering Pty Ltd v Forrest Pharmaceutical Co Pty Ltd [1982] 1 NSWLR 286, 290 C-D.
13. On balance, I am satisfied that an award of common law end of trial damages would not be an adequate remedy for ISPT, assuming success for it at a trial upon its counterclaim against the plaintiffs.
14. That leads me to look at more general considerations concerning the overall balance of convenience evaluated as further considerations to be weighed.
15. I must weigh the balance of the overall comparative injustice which might be suffered by these plaintiffs if the injunction is granted but ISPT later fails at a trial on its counterclaim in contrast against the injustice which might be suffered by ISPT, if the interlocutory injunction it seeks is not granted, but it later succeeds at a trial on its counterclaim.

Other factors in the balance of convenience evaluation

1. There will be a substantial injustice to ISPT, in my view, if absent an injunction it ultimately succeeded at trial on its counterclaim and obtained an award of substantial common law damages, but then was left to execute that judgment against the plaintiffs for the recovery post 2021, once the overall Forrest Chase redevelopment works were ultimately completed.
2. In my view, there is also in the weighing overall of balance of convenience considerations, some wider public interests at play here, for the general public of Perth and of Western Australia who use Forrest Place and the Padbury Walkways in terms of a general desirability in having this whole area restored to pristine condition as soon as possible, rather than left as a partfinished building site until 2021.
3. There are also the considerations of the interests of existing and prospective retail business tenants in the Forrest Place/Forrest Chase areas, who would undoubtedly be benefitted by being able to trade within a more normalised trading environment in the Forrest Place and Forrest Chase at an earliest opportunity, rather than having to trade at or around an unfinished site until 2021, including the unfinished parts of the Padbury Walkways above the Bocelli Espresso Café.
4. Not granting the interlocutory relief sought by ISPT now, would deliver a result of ISPT needing to presently work around Bocelli Espresso Café areas for the balance of 2018 and into Autumn 2019, then demobilising, only to return in 2021 with a remobilised work crew to finish off the Padbury Walkway above Bocelli Espresso Café (at a point after the expiry of the Bocelli Espresso Café lease (assuming the lease is not renewed by the City of Perth)).
5. On the other hand, if I do grant injunctive relief in the terms as now sought by ISPT, but then ISPT ultimately fails at a later trial upon its counterclaim, that scenario would have achieved for ISPT an objective of facilitating its implementing of all works above and around the Bocelli Espresso Café to its advantage financially. In achieving that outcome, there may never be a trial upon the counterclaim. Even so, I ask what would the plaintiffs have really lost in those hypothetical circumstances. The answer, financially, I assess would be very little. They still retain of course all their trading rights in daylight hours (5.00 am 10.30 pm) and their private nuisance action against ISPT based on alleged unreasonable levels of noise, dust and vibration since February 2018. That private nuisance action remains intact for them to pursue, as before.
6. On my assessment, even allowing for the late and greater ISPT assessment of about 97 nights of work to April 2019, there will still likely be little financial loss for these plaintiffs arising. My commercial instincts lead me to think that for these plaintiffs to commence to adopt in 2018 an aberrant late night/early morning pattern for their Bocelli Espresso Café by keeping it open and trading on very late or through the early hours of the morning, must likely be an unviable economic proposition for them. I reach that view in cognisance of the assertion by the Agnellos that they have adopted a new late night/early morning trading pattern in 2018 to recoup the losses and not for a purpose of frustrating or 'spoiling' the attempted gantry installation work of ISPT's contractors during March and June 2018. Even so, there is nothing before me to suggest a viable level of customers in these hours for the Café. In fact the tabulated tables of customers at these new trading times as was put before me shows very low numbers, as I would expect. See annexure D being page 639 of the affidavit of Nicholas John De Vries sworn 20 June 2018, which is a table specifying the number of persons visiting the Bocelli Espresso Café between 6.00 am 2.00 am from 5 15 June 2018.
7. Cautious as I am about doubting the plaintiffs' intention evidence before a trial (absent any crossexamination on affidavits) the stark reality of the present bleak winter in Perth in June, July and August 2018, and ISPT's recordings of very few customers in Forrest Chase after 8.00 pm on these evenings (when all the other surrounding retail outlets Forrest Chase are closed), all strongly suggest to me that the plaintiffs' true objective in staying open at these aberrant hours was to 'spoil' ISPT's construction work plans and not to seek trading profits.
8. There is no evidence put to me by the plaintiffs as to the profitability of the plaintiffs' aberrant extended trading hours' operations when they were implemented in 2018 by the plaintiffs since March 2018 at times that have, due to safety considerations, effectively thwarted the gantry installation works.
9. On my commercial assessment, there is a significant prospect that late night/early morning likely future patronage at the Bocelli Espresso Café, if it does trade across the late hours of post10.30 pm through to 5.00 am in the following early morning, would be minimal and ultimately loss making for the plaintiffs. Any financial losses attributable to not being able to trade between 10.30 pm 5.00 am across approximately 97 nights to around April 2019 would be compensable (if proved) under ISPT's undertaking as to damages and which I do evaluate as being an economically viable undertaking, if ISPT lost at a trial.
10. I further conclude that presently granting an interlocutory injunction as sought by ISPT would carry, I assess, the correlative consequences of alleviating the plaintiffs from future exposure to:

(a) a loss-making, aberrant and extended hours trading scenario;

(b) reducing their possible common law damages exposure to ISPT, if ISPT eventually wins on its counterclaim at trial;

(c) enhancing the overall amenability of the Forrest Chase/Forrest Place area for proximate retailers and traders in those complexes generally;

(d) improving the overall amenity of what is an important part of the Perth CBD for the wider community, sooner rather than later, and particularly for users of the Padbury Walkways in their traversings from and to the Wellington Street train and bus terminals to and from the inner Perth CBD; and

(e) avoiding (as has been argued for the plaintiffs) any issues over the plaintiffs prejudicing their subsisting private nuisance action against ISPT by being said to have consented to and/or acquiesced, regarding ISPT's gantry installation(s) work and any aftermath consequences.

1. Taking account then of a solid prima facie case of ISPT on its counterclaim which I find established and which I assess at a level of respectability (say between 5 and 6 out of 10 on a scale of likelihood of success at trial), the potential nonrecovery by ISPT of any longterm award of common law trial damages upon the counterclaim (again assuming success at the trial) and other balance of convenience factors including the public interest which I have now discussed, those factors weighed in aggregate, together persuade me presently that there should be interlocutory relief for ISPT, allowing the proposed works to proceed at the specified hours after 10.30 pm and up until 5.00 am. That conclusion, however, is subject to some qualifications.
2. First, as regards the terms of the relief sought, I am troubled by how it is currently framed. This is a question of form. But in light of the 97 nights of work currently foreshadowed until around April 2019, I am concerned about the administration of notification arrangements to the plaintiffs being reposed in some low level official of ISPT rather than in a professional person of authority who is identified to issue ISPT's notices as anticipated to the plaintiffs from time to time under the terms of any orders as framed.
3. A professional person acting for ISPT in issuing notices should be a relatively senior identified lawyer or lawyers for ISPT and expressly nominated to give the written notice(s).
4. Second, there should be liberty to apply to the parties, particularly for the plaintiffs to adjust the terms of these interlocutory injunction orders to accommodate any relevant changed or emerging circumstances, if and when they might arise as between now to possibly in April 2019.
5. Third, accordingly, the terms of the interlocutory injunction would be along the following lines (the final terms of which I will canvass with counsel after publication to the parties of the draft reasons):

Upon the usual undertaking as to damages from ISPT, an injunction hereby issues until further order which restrains and prohibits the plaintiff corporations (Ooranya Pty Ltd and Bayswater Nominees Pty Ltd) as well as their directors, officers, servants, agents and contractors against trading, remaining open or remaining within the area of the Bocelli Espresso Café or the Alfresco Area of those leased premises of those plaintiff corporations in Forrest Place at between the hours of 10.30 pm (other than Friday and Saturday evenings) and 5.00 am the following day. Those restraints shall be in force and apply on any day or days for which ISPT has by its nominated agents (lawyers X or Y) has nominated in writing, by providing to the plaintiff corporations not less than seven days written notice (at the nominated address below), advising the plaintiffs that ISPT intends to install gantries above the Café area or the Alfresco Area of the plaintiffs' premises in Forrest Place, or otherwise notifying them that ISPT intends by its servants, agents or contractors to undertake in those hours demolition or reconstruction works relating to or concerning the Padbury Walkways, or otherwise notifying them that ISPT intends to undertake any of the works as described under pars 5(a) through 5(e) of the affidavit of Michael David Barr affirmed 31 July 2018 in this action.

1. There is a further requirement I will mention at the end of these reasons.

1. A residual question I have also weighed and evaluated is whether the proposed works following the initial installation of gantries, across a subsequent period of potentially 97 nights to April 2019, might deliver the effect of facilitating the interim erection, in effect, a canopy-like structure placed over the Bocelli Espresso Café, including over its Alfresco Area, thereby dramatically changing from above the character of these leased premises in a negative fashion. I am now satisfied on the most recent affidavits of Mr Barr for ISPT that the Alfresco Area will not be affected by such a canopy although that looked to be a potentiality on some earlier plans.
2. This altered character of the premises from above arose as a live consideration, in light of the submission of Mr Bennett that although the plaintiffs hold and will continue to enjoy rights to pursue a claim for damages for private nuisance arising out of works in the general area at Forrest Chase and Forrest Place commencing from February 2018, the legal character of a private nuisance action requires an 'emanation' of something from a defendant's land. There needs to be an emanation which delivers an adverse effect to a plaintiff's leased space, such as by way of noise, vibration, sound, smell, etc: see my discussion of the private nuisance action generally in Shogunn v Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42.
3. Mr Bennett's submission, which I again assess as being of some force, is that an erection of a canopy-like structure above the Café premises, would change the character of the premises, albeit on a temporary basis, until the ISPT Forrest Chase and Padbury Walkway redevelopment works are complete, in a fashion that without more, would not support any legal grievance in private nuisance for the plaintiffs - ie, absent an emanation to those premises.
4. The concern may be further explained. Daytime patrons of the Bocelli Espresso Café over a period of the 97 nights of ongoing work extending into around Autumn 2019, might be dissuaded from patronising the Café when it is open in the day-time, due to the overhead presence and vision of gantry beams supporting a canopy structure as a part of overall unsightly building works in this period.
5. The grievances of the plaintiffs under their private nuisance action only extend to encompass all noise, vibration and dust associated with the works. About that they have already complained and continue to complain as their alleged private nuisance action causing them damage on an ongoing basis. Even a temporary canopy overhead adds one more dimension of overall negativity to the Bocelli Espresso Café premises. It is likely to contribute to a further decline in patronage and so it is argued, reduce even further the trade of the Café (beyond the presently complained about, noise, dust and vibrations issues which are ongoing).
6. According to Mr Bennett at any future trial of his clients' private nuisance action, the extra 'canopy'/gantry feature may give rise to insolvable problems for his clients of causal damage attribution towards whether the actual causes of any decline in patronage and profitability of the Bocelli Espresso Café across a trading day (in contrast presumably to prior trading patterns of profitability prior to these works), and expose the plaintiffs at a trial to more prejudice. The extra prejudice is said to arise from possibly being met by a defence from ISPT against private nuisance damages on a basis that the plaintiffs had not sufficiently proved causatively that any proven decline in patronage was due to the noise, dust or vibration and rather, was instead due to simply an overall unsightliness or a perceived lack of amenity or perceived (rightly or wrongly) of customers undesirability of positioning themselves under such a canopy/gantry structure as a patron.
7. By my assessment, there is again some substance in this from a prejudice perspective to the plaintiffs as regards undermining longer term their private nuisance action at a future trial. But that prejudice could be met, on my assessment, by an undertaking from ISPT that no differentiation of cause of trading loss arguments, by reference to the canopy/gantry structure to be erected above Bocelli Espresso Café following an issue of the ISPT proposed injunction, would be taken at trial in the private nuisance action of the plaintiffs.
8. Subject also to receiving a suitable undertaking along those lines from ISPT, I would then be persuaded that an interlocutory injunction along the lines I have indicated, (subject to hearing the parties' submissions about precise terms) should issue.
9. I am also of the view, in all the circumstances, that since ISPT will be immediately substantially advantaged on a summary basis by these orders by a result close to final relief, as well as circumstances where this drawn out application has been, at least initially, advanced in far less than perfect fashion, this interlocutory relief should come at the commercial price as regards the costs of the plaintiffs in resisting the injunction to this point.
10. Hence, ISTP should pay all of the plaintiffs' costs of the present application on a solicitor/client basis, on my prima facie assessment.
11. These reasons were provided in draft to the parties at the conclusion of further arguments on Friday, 17 August 2018 for the purposes of the settling of final orders and conferral. Subsequently on 20 August 2018, orders issued as follows:
    1. An injunction hereby issues until further order to restrain and prohibit the plaintiff corporations (Ooranya Pty Ltd and Bayswater Nominees Pty Ltd) as well as their directors, officers, servants, agents, contractors and invitees - against remaining within the area of the Bocelli Espresso Cafe or the Alfresco Area of those leased premises of those plaintiff corporations in Forrest Place - at between the hours of 10.30pm (other than Friday and Saturday evenings) and 5.00am the following day. Those restraints shall be in force and apply on any day or days for which ISPT has, by its nominated agent (lawyer Simon Robin Grant, General Counsel of the defendant), nominated in writing, by providing to the plaintiff corporations not less than seven days' written notice (at the nominated address and in the form attached to these orders (the Notice) (in accordance with Order3), advising the plaintiffs that ISPT intends by its servants, agents or contractors to undertake in those hours demolition or reconstruction works relating to or concerning the Padbury Walkways, or otherwise notifying them that ISPT intends to undertake any one or more of the works as described in paragraphs 5(a) through to 5(e) of the affidavit of Michael David Barr affirmed 31 July 2018 in this action, being:

(a) installation of the gantry works above and around the Bocelli Espresso Cafe;

(b) installation of the gantry works above and around the alfresco area of the Bocelli Espresso Cafe;

(c) demolition of the existing Padbury Walkways adjacent to the Bocelli Espresso Cafe;

(d) demolition of the escalators, canopy and concrete structure relating to the bridge over Murray Street;

(e) installation of the new Padbury Walkways, escalators, canopy and structure relating to the bridge over Murray Street; and / or

(f) removal of the gantry above and around the Bocelli Espresso Cafe and gantry above and around the alfresco area of the Bocelli Espresso Cafe.

1. The entitlement of the defendant to give notice pursuant to Order 1 is subject to and conditional upon provision by the defendant to the plaintiffs of the following:

(a) payment of the following amounts into the trust account of Bennett & Co (constituting a one off payment to be made prior to the issuing of the first Notice to the plaintiffs):

(i) $150,000 (being the sum referred to in the defendant's open letter of 7 August 2018);

(ii) $110,000 (being the sum referred to in paragraph 44 of the affidavit of Michael David Barr affirmed 8 August 2018).

(b) a written undertaking by the defendant, to be provided also to the Court that:

(i) as and from the date of this Order the defendant shall not (and shall undertake to this Court in writing to not) plead nor assert in respect of any claim by the plaintiffs for damages as and from the commencement of the Gantry Works the subject of these Orders that the loss of custom or damages claimed is separately caused by or attributable to, in whole or in part, the Gantry Works;

(ii) to indemnify and hold harmless the plaintiffs from any:

(A) loss of, or damage to, the property of the plaintiffs to the extent that loss or damage is caused by, wholly or in part:

(I) the installation, construction, emplacement, presence, use, deconstruction and demobilisation of the Gantries; or

(B) liability to any 3rd party for any loss of, or damage to, property, to the extent that the liability is caused by, wholly or in part, the Gantry Works; and

(C) liability for any death or personal injury to any person to the extent that the liability is caused by, wholly or in part, the Gantry Works.

1. For the purposes of Order 1, Simon Robin Grant, General Counsel of the Defendant and lawyer, must:

(a) specify on the Notice the date or dates (which, for the avoidance of doubt, need not be consecutive) that ISPT has nominated to undertake the works (referred to in Order 1) between 10.30pm and 5am (Australian Western Standard Time);

(b) insert his name and position, and sign the Notice;

(c) date the Notice;

(d) send the Notice via email on the same day prior to 5pm (the relevant time being AWST, receipt by the plaintiffs after 5pm being deemed as receipt on the next business day in Western Australia) as the date of the Notice under paragraph (c), with a subject line that reads 'ISPT Notice to Bocelli (Orders of WA Supreme Court) - [insert date of Notice]', to the following email addresses:

(i) silverdawn5@bigpond.com; and

(ii) LBlakiston@bennettandco.com.au; and

(iii) MNas@bennettandco.com.au

(e) send the Notice in accordance with paragraph (d) at least 7 days (for the avoidance of doubt, being calendar days) prior to the earliest date specified on the Notice under paragraph (a).

4, Liberty to apply upon [5] hours written notice to the other party, but otherwise without the need for prior conferral.

1. Nothing in these orders authorises the defendant (by its directors, officers, servants, agents, contractors and invitees) to:

(a) enter into or onto the area of the Bocelli Espresso Cafe or the Alfresco Area of those leased premises of those plaintiff corporations in Forrest Place; or

(b) conduct works that do not (or conduct such works in a manner that does not) comply with all laws, regulations and permits applicable to the Gantry Works.

1. The defendant pay the plaintiffs' costs of the defendant's application for an interlocutory injunction dated 26 June 2018 and 25 July 2018, such costs to be:

(a) payable on a solicitor/client basis;

(b) assessed (if not agreed) without regard to any limits or hourly rates imposed by the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018;

(c) inclusive of transcript fees relating to the hearings on 30 and 31 July, 10, 17 and 20 August 2018 (in respect of which there shall be a certificate);

(d) payable forthwith.

To: Ooranya Pty Ltd and Bayswater Nominees Pty Ltd (Bocelli)

By email to: silverdawn5@bigpond.com and LBlakiston@bennettandco.com.au and MNas@bennetttandco.com.au

NOTICE TO BOCELLI'S ESPRESSO CAFÉ

This is a notice given on behalf of ISPT Pty Ltd (ISPT) pursuant to the Orders of his Honour Justice Kenneth Martin of the Supreme Court of Western Australia dated [X] (the Orders) in proceeding CIV 1600 of 2018 (consolidated with CIV 2276 of 2018) (the Proceeding).

For the purposes of the Orders, ISPT hereby gives this notice that for the purpose of undertaking the works listed below it requires the plaintiffs to the Proceeding, their directors, officers, servants, agents, contractors or invitees to refrain from remaining within the café area or the alfresco area of the plaintiffs' leased premises in Forrest Place, Perth CBD between the hours of 10:30pm (other than Friday and Saturday evenings) and 5:00am on the following specified days:

Times and dates:

[10.30pm on [insert date] to 5am on [insert date], etc.]

.........................................................................................................................................................................

• Installation of the gantry works above and around the Bocelli Espresso Café;
• Installation of the gantry works above and around the alfresco area of the Bocelli Espresso Café;
• Demolition of the existing Padbury Walkways adjacent to the Bocelli Espresso Café;
• Demolition of the escalators, canopy and concrete structure relating to the bridge over Murray Street;
• Installation of the new Padbury Walkways, escalators, canopy and structure relating to the bridge over Murray Street;
• Removal of the gantry above and around the Bocelli Espresso Café and gantry above and around the alfresco area of the Bocelli Espresso Café.

This notice is given on behalf of ISPT by:

Name: ....................................

Position: ....................................

Signature: ....................................

Date of Notice: ....................................

BY THE COURT

THE HONOURABLE JUSTICE K MARTIN

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES KENNETH MARTIN AND CORBOY