Paul Douglas Williams & Anor v Abbott Australasia Pty Limited & Anor - [2002] NSWSC 950 - NSWSC 2002 case summary — Zoe

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Paul Douglas Williams & Anor v Abbott Australasia Pty Limited & Anor

[2002] NSWSC 950

Supreme Court of NSW|2002-10-03|Before: Einstein J

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Court

Supreme Court of NSW

Decision date

2002-10-03

Before

Einstein J

Source

Original judgment source is linked above.

Judgment (110 paragraphs)

[1]

CITATION : Paul Douglas Williams & Anor v Abbott Australasia Pty Limited & Anor [2002] NSWSC 950 FILE NUMBER(S) : SC 50095/02 HEARING DATE(S) : 03/10/02 JUDGMENT DATE : 3 October 2002

[2]

Paul Douglas Williams (First Plaintiff) Serenity Cove Business Pty Limited (Second Plaintiff) PARTIES : Abbott Australasia Pty Limited (First Defendant) Abbott Laboratories (Second Defendant)

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COUNSEL : Mr T Tobin QC, Mr M Condon (Plaintiffs) Mr F Douglas QC, Mr TGR Parker (Defendants) SOLICITORS : Walsh & Blair (Plaintiffs) Clayton Utz (Defendants) CATCHWORDS : rights pursuant to mortgage or guarantee and exercising purported power of sale under mortgage - Security for costs - Order sought by defendants seeking security for costs from second plaintiff Contaminated Land Management Act 1997 (NSW) Corporation Act 2001 (Cth) Fair Trading Act 1987 (NSW) LEGISLATION CITED : Legal Profession Act 1987 (NSW) Real Property Act 1900 (NSW) Supreme Court Act 1970 (NSW) Trade Practices Act 1974 (Cth) American Cyanamid Co v Ethicon Ltd [1975] AC 396 Appleton Papers Inc v Tomasetti Paper Pty Limited [1983] 3 NSWLR 208 Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Bell Wholesale Co Pty Ltd v Gates Export Corporation (No. 2) (1984) 2 FCR 1 Bryan E. Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301 Cameron's Unit Services Pty Ltd v Kevin R Whelpton and Associates (Aust) Pty Ltd (1986) 13 FCR 46 Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 8 ACLR 818 Clark Equipment (Australia) Limited v Covcat Pty Limited (1987) 71 ALR 367 Clyde Industries Ltd v Ryad Engineering Pty Ltd (1993) 11 ACLC 325 Cunningham v National Australia Bank (1987) 15 FCR 495 Eng Mee Yong v Letchumanan [1980] AC 331 Gentry Bros Pty Ltd v Wilson Brown and Associates Pty Ltd (1992) 8 ACSR 405 Grant v The Banque Franco-Egyptienne (1876) 1 CPD 143 Harvey v McWatters (1949) 49 SR (NSW) 173 Heller Factors Pty Ltd v John Arnold's Surf Shop Pty Ltd (in liq) (1979) ACLC 32,446 Hession v Century 21 South Pacific Ltd (in liq) (1992) 28 NSWLR 120 CASES CITED : Idoport Pty Limited v National Australia Bank Limited [2001] NSWSC 744 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621 Magna Alloys & Research Pty Ltd v Coffey (1981) VR 23 Mainbanner Pty Ltd v Dadincroft Pty Ltd (1988) ATPR 40-896 Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 M A Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97 Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 Petera Pty Limited v EAJ Pty Limited (1985) 7 FCR 375 PS Chellaram and Co v China Ocean Shipping Co (1991) 65 ALJR 642 Rosenfield Nominees Pty Ltd v Bain and Co (1988) 14 ACLR 467 Sent v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201 Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 Smail v Burton [1975] VR 776 Spiel v Commodity Brokers Australia Pty Ltd (in liq) (1983) 8 ACLR 410 Stollznow v Calvert [1980] 2 NSWLR 749 Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 5 ACLC 480 Town & Country Sport Resorts (Holdings) Pty Limited v Partnership Pacific Limited (1988) 20 FCR 540 Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542 DECISION : Orders restraining enforcement of security documents.

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50095/02 Paul Douglas Williams & Anor v Abbott Australasia Pty Limited & Anor JUDGMENT The Subject Transaction 1 These proceedings arise by reason of a contract of sale of the land described as Lot 6 in Folio identifier 732258, Lot 1 in Folio identifier 732257 and Lot 1 in Folio identifier 225973 known as the Abbott Australasia site at Captain Cook Drive, Kurnell, New South Wales ["the land" or "Abbott Park"] occupying some 67 hectares. Exchange of contracts and settlement took place simultaneously on 31 May 2000. 2 The vendor was the first defendant Abbott Australasia Pty Ltd ["Abbott"] which had been the owner of the land from 1964 until May 2000. It currently carries on the business of manufacturing medicines and pharmaceutical products from premises erected upon the land. The second defendant Abbott Laboratories Chicago Corporation, has at all material times been the holding company of the first defendant. 3 The purchaser was the second plaintiff, Serenity Cove Business Park Pty Ltd ["Serenity Cove" or "SCBP"]. The first plaintiff, Mr Williams has at all material times been the sole director of Serenity Cove and the sole shareholder of the company. 4 The purchase price was $26.5 million. 5 Simultaneously with the exchange and settlement of contracts: · Serenity Cove mortgaged the land to Abbott as security for a loan of $23,850,000, the term of a loan being until 30 November 2001. · Mr Williams guaranteed performance by the mortgagor of its obligations under the mortgage · Serenity Cove leased the land to Abbott for a term to expire on 31st December 2000 (by provisions whereunder on and from that date the Fermentation Building and the Chemical Building would be excised from the premises, with the balance of the developed portions continuing to be leased to have the result that the lease repayments were reduced by $331,650 to $1,521,450 per annum. 6 Also on 31 December 2000 Serenity Cove entered into a contract for the sale of approximately 20 hectares of the undeveloped land for $7.5 million. Settlement of this contract occurred in April 2001 at which time $2 million was paid to Abbott in reduction of the principal secured by the mortgage, so the secured amount was reduced to $21.85 million. The proceedings 7 The plaintiff's claims cover a number of discrete heads. Essentially the proceedings were brought pursuant to sections 82 and/or 87 of the Trade Practices Act 1974 and/or sections 68 and/or 72 of the Fair Trading Act 1987 and rely upon: · alleged misrepresentations by both defendants regarding the environmental condition of the land and its past history; · the thrust of the earlier of the representations, being representations that there had effectively been no chemical spills nor contamination of the land nor problems concerning contamination; · alleged misrepresentations by both defendants as to the extent to which they knew the history of land use and as to an inquiry said to have been made of employees and officers of the defendants, in relation to environmental issues. 8 The plaintiffs also seek to rely upon an alleged later misrepresentation made to a company of environmental advisers retained by the plaintiffs, 'Golder and Associates': · that that there was one location onsite which contained carbon filter cake; · that the area had been tested for soil contamination and that the material was "clean"; · that a selenium spill was contained within a shed; · that the Abbott Laboratories Environmental Self-Assessment Manual indicated that approximately 40 tonnes of carbon filter cake was buried along the north-eastern boundary of the developed area of the site; · that the area had been tested for soil contamination and that the results of the assessment indicated that the material was clean. 9 The plaintiffs' claims include allegations: · of a failure to disclose material information concerning contamination; · the plaintiffs had a reasonable expectation that particular matters would be disclosed to them; · that in reliance upon the pleaded representations and conduct Mr Williams caused Serenity Cove to be registered as his nominee for the purchase of the land; · that the land was purchased by Serenity Cove; · that the mortgage was entered into; · that the lease was entered into; · that the guarantee was entered into and that Serenity Cove agreed to be named as the insured in an insurance policy limited to an indemnity of $5 million in respect of any remediation to the lands which may prove to be necessary. 10 The plaintiffs claim that after 31 May 2000 they became aware that Abbott Park was significantly contaminated with a number of different chemicals which included hazardous waste and comprised in part products and bi-products from the medicine and pharmaceutical manufacturing processes carried out by the first defendant which ought to have known of such contamination. The particular allegations include: (a) there was at least 500 tonnes of buried hazardous waste which contained inter alia, hazardous levels of toluylene, ethyl benzene, petroleum hydrocarbons and codeine;

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(h) the costs of remediating Abbott Park including indirect costs such as potentially obtaining finance and the cost of retaining various consultants. 12 Further claims are based upon an alleged duty of the defendants said to have been owed to the plaintiffs to exercise reasonable care, skill and diligence in formulating the subject representations and in ensuring that the subject representations were and remained accurate, upon the alleged breaches of that duty of care and resultant loss thereby. 13 Further or in the alternative a number of the representations pleaded are said to have constituted conduct by the defendants that was misleading or deceptive or likely to mislead or deceive in contravention of: · section 52 of the Trade Practices Act and section 42 of the Fair Trading Act; · Section 53A (i) (b) of the Trade Practices Act and section 45 of the Fair Trading Act. 14 A further allegation which is pleaded is that Abbott breached a contractual warranty to be found in special condition 43.3 (b) of the contract for purchase. Damages are claimed in this respect. 15 Claims are made in relation to the lease. The allegation being that on 21 June 2001 Abbott wrongfully and without lawful justification denied access to the Chemical and Fermentation buildings and that by reason of this conduct Serenity Cove has suffered loss and damage in terms of a loss of the opportunity to derive income from the use of these buildings. The motions presently before the court The plaintiffs' motion 16 There are cross motions presently before the court. The plaintiffs seek interlocutory orders restraining Abbott by itself, its servants or agents from: · exercising any rights pursuant to the mortgage or guarantee, with a view to compelling the plaintiffs to pay any money or to give possession of the land, including restraining them from demanding the payment of any moneys or issuing any notices under section 57 of the Real Property Act 1900 or issuing any statutory demands under the Corporation Act 2001; · exercising its purported power of sale under the mortgage and such other powers as may be available to it under the mortgage as against the plaintiffs, by reason of any and alleged defaults on their part; · from relying on or taking any action pursuant to a notice dated 23 July 2002 purportedly issued pursuant to section 52(2)(b) of the Real Property Act. 17 I note that the summons also seeks a declaration that the 23 July 2002 notice has not been served on the second plaintiff. 18 The plaintiffs alternatively submit that the trial of any claim by Abbott for possession should occur concurrently with the hearing of the plaintiffs' claims in these proceedings. The defendants' motion 19 The defendants seek security for costs from the second plaintiff. They also seek to raise suggested problems with the manner in which the plaintiffs' case has been pleaded and in relation to the particulars furnished. Those matters were briefly treated with in the defendants' written submissions, but there has been no significant address from the bar table in relation to those matters which generally are dealt with by case management procedures. The Principles 20 In approaching the interlocutory application it has seemed to me that the principles which govern the Court's approach to the question are those generally dealt with and set out in Appleton Papers Inc v Tomasetti Paper Pty Limited [1983] 3 NSWLR 208. Of course, the references to plaintiff in those statements of principle are a reference to the applicant or moving parties seeking interlocutory relief. 21 In Appleton, McLelland J pointed out the importance of recalling that the Court here deals with a discretionary power conferred on the Court in very general terms, referring to section 66(4) of the Supreme Court Act, which provides that the Court may at any stage of proceedings, on terms grant, an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do. 22 As McLelland J made plain at page 216 citing from the judgment of Moffitt P in Stollznow v Calvert [1980] 2 NSWLR 749: "While useful guidance is provided by the manner of exercise of the discretion in other cases and by the factors considered in those cases to favour the exercise of the discretion in a particular way, each case must depend upon its own facts. It would be contrary to what I understand to be the accepted law in this country to confine the exercise of a judicial discretion by judge made rigid formulae." 23 At page 214 McLelland J cited the full High Court Decision in Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622, 623 where the court had said that in dealing with an application for interlocutory injunctions:

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"My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff's legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi, the existence of the right or the violation of it or both is uncertain and will remain uncertain until final judgment is given in the action . It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practise arose of granting him relief by way of interlocutory injunction but since the middle of the nineteenth century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if uncertainty were resolved in his favour at the trial. But the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial." [Emphasis added] 30 At page 216 McLelland J pointed out that it is the task of the Court, on an application for an interlocutory injunction, to seek to fulfil this purpose in the manner best calculated to achieve justice between the parties in the circumstances of the particular case. McLelland J pointed out that with the possible exception of a passage in the Beecham Group case, which deals with what is said to be special considerations arising in a patent suit in which there is a substantial issue as to the validity of the patent which McLelland J then proceeded to consider:

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"As a matter of power, rather than as an exercise of discretion in a particular case, the Court may grant interlocutory or final injunctive relief that does not correspond with what would follow from an application of the traditional rule. This is not to say that in cases such as the present, the rules devised in Equity for application in disputes between mortgagor and mortgagee may not provide ready guidance for what is appropriate. But as we have observed, the traditional rule was apparently relaxed when a mortgagor attacked the enforceability of the security. The powers of this Court under s.87 of the Act enables the mortgagor to obtain in an appropriate case orders varying the terms of agreements, or declaring them void as a consequence of the contravention of the provisions of the Act by the mortgagee. This may strengthen the inclination of the Court in an appropriate case to refrain from requiring the Applicant to provide adequate security for its indebtedness before restraining a mortgagee from exercising its powers." 35 The Court in that case further observed that, as a matter of discretion, the relaxation of such a requirement could properly be asserted where the allegations which grounded the plea for the use of the Court's powers under s.87 were clearly arguable and not merely colourable and, where there was an obvious nexus between the allegations of misleading or deceptive conduct and the formation of the security documents. 36 Whilst these observations of course remain pervasive, this Court clearly has power to restrain the exercise of the power of sale in appropriate circumstances, even where the amount claimed by a mortgagee is not paid into court, if there is a real dispute about whether the power of sale was presently exercisable at all. These proceedings are par excellence proceedings seeking to challenge and indeed to set aside the security instruments upon which the first defendant relies in its attempts to enforce the mortgage and the ancillary guarantee. 37 It seems to me that each case has to be determined upon its own facts, matters and circumstances and that there is only a limited extent to which previous authority may assist in terms of the appropriate exercise of the Court's discretion. In that regard this case is a very different case to Mainbanner Pty Ltd v Dadincroft Pty Ltd (1988) ATPR 40-896. Dealing with the issues 38 Clearly enough the Court cannot determine disputed questions of fact on this interlocutory application. 39 The disputed issues are complex as well as matters in respect of which expert evidence will require to be taken. It is probably very likely that if these proceedings, in the fullness of time, depending upon what follows after the decision on this set of applications, continue, a number of issues will be referred out under Part 72, whether on application by the parties or one of them or by the Court of its own instance. Whether that is or is not the future in relation to these proceedings remains to be seen. 40 In relation to valuation evidence and amounts owing, the evidence before the Court is that on the basis that the plaintiffs failed to obtain any relief whatever in these proceedings and were obliged to pay the amounts owing to either or both of the defendants pursuant to the mortgage and pursuant to amounts which have not been paid under the relevant contracts including the lease, the amount owing would be approximately $23 million (the precise figures are to be found in the affidavit of Mr Robert Camfield made on 2 October 2002).

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"(a) [Abbott] discloses those matters referred to in the Contamination Reports; (b) [Abbott] warrants that it is not aware of any Contamination other than that disclosed in this Contract."] [The contract will be referred to in more detail below] 44 Albeit at an interlocutory level, there is clearly evidence that the representations were made, both in September and in October 1999 and in May 2000. 45 By reference to Mr Williams' affidavit: · the representations made in October 1999 are said to have been to the effect that Abbott had always been careful at the sites and there were no problems with the land at Kurnell and that Abbott had never done anything with the undeveloped land, it was pristine and SCBP would not have any problems with it; · the representations made in May 2000 are said to have been to the effect that Abbott had been at Kurnell since the site was developed, that the back land had not been touched and that the only work Abbott had ever done outside the fenced area in the undeveloped section was the laying down of the sewer line, maintenance works and spraying of weeds (paragraph 24); and, further, that the undeveloped site was 'clean'. 46 The evidence suggests that Mr Rogers, the author of the representations responded to detailed and deliberate inquiries from Mr Williams - albeit this evidence is only before the Court at an interlocutory level. 47 Mr Rogers has not given evidence at the interlocutory level, either qualifying what was said nor explaining why he appears, on the evidence presently before the Court, to have said something in a business context which it is now asserted the plaintiffs will not be entitled to rely upon. 48 The defendants' explanation, on the evidence before the Court, as to their failure to call Mr Rogers is to be found in the evidence given by Mr Walsh at paragraph 23, which is to the effect that Mr Rogers' worldwide responsibility for acquisitions and divestments and base in North Chicago, when seen in the light of the fact that this is an interlocutory hearing, should suffice. I have some difficulty with this contention in the circumstances of the significance of the way in which this interlocutory application has been prepared, it clearly being the case that Mr Rogers' recollections and evidence and the strength of the materials which may have been able to have been put forward would have been a significant integer in weighing the subject serious case. 49 The plaintiffs clearly intend during the hearing to rely upon the proposition that Abbott cannot be said to have been open or candid about its position in circumstances where, so the plaintiffs submit, [submissions in reply, paragraph 5]: · It is said to have initially held out to Williams that a thorough Phase 2 examination could be conducted; · it is said to have concealed the true nature and extent of the contamination from both SCBP and Golders; · it is said to have taken pains to belittle the role Golders could play. In this respect Mr Rogers' representation on 21 May 2000 is said to have been disingenuous in circumstances where approximately 150,000 metres of landfill, including extensive areas of hazardous material had been dumped on the undeveloped section [the representation to be found in paragraph 24 of Mr Williams' affidavit made on 21 August is said to have been in the following terms]:

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"…even though I know how responsible Abbott have been worldwide, if you dig enough holes on any industrial site, you will find traces of something that will lead the environmental people to suggest more tests and so it goes on. We have been at Kurnell since it was developed, and we know that there are only a few housekeeping issues. The back land hasn't been touched. There may be a few dumped cars or whatever around them, but I don't want this dragging on for months and months while the environmental people make a fortune out of it." 50 The defendants submit that the following matters set the background for an assessment of the strength of the plaintiffs' case: · The site is a large one, redevelopment of which would obviously require extensive work to comply with regulatory requirements. An important part of complying with such requirements would obviously involve addressing environmental issues. · The initial statements by Mr Rogers are alleged to have been made prior to the execution of the heads of agreement. It is said to be apparent that if any such statements were made, they were not taken at face value, because the Heads of Agreement as signed, contained provision for the plaintiffs to undertake environmental investigations. No such investigations were undertaken at that time. No explanation is said to have been offered as to why. However paragraph 15 of Mr Williams' first affidavit, as Mr Parker pointed out, does include evidence by Mr Williams that he was extremely busy in late 1999 and early 2000 as he had settled the purchase of some nearby land. · Mr Williams did eventually retain Golders to undertake investigations. When Golders produced a report suggesting further testing, Abbott is said to have refused to co-operate. The summons complains about this, but it is said to be hard to see what cause of action would arise. Abbott is said to have been quite open about its position, and it is submitted by the defendants that no question of economic duress could arise. The submissions are that although Mr Williams must have been aware that the proposed investigation was not proceeding, his affidavit does not explain what his thinking was at the time. · The sale contract contained an acknowledgement that the plaintiffs were not relying upon any pre-contractual statements or representations. Mr Williams was advised (as he was advised throughout) by a solicitor. 51 Notwithstanding the defendants' submissions that: · by reason of this suggested background the Court should "be highly sceptical of the claim by Mr Williams that when entering into the contract he was relying upon Mr Rogers' alleged statements about the state of the site", · there are difficulties in the plaintiffs' path in being in a position to demonstrate that any misleading statements which were made and relied upon actually caused their loss; · the plaintiffs have failed to take the necessary steps towards developing the land, apparently for reasons that had nothing to do with contamination; · the plaintiffs' evidence to the effect that the mediation will cost $84 million is highly speculative. 52 I am satisfied for the reasons already given and for the reasons which follow, that a serious case, in terms of likelihood of success in a final hearing, has been shown by the plaintiffs such as justifies consideration of where the balance of convenience lies. 53 In relation to clause 32 of the Sale Contract, it seems to me that at least at an interlocutory level, there is substance in the plaintiffs' submissions that its purpose is to do no more than to limit SCBP's rights prior to completion [which was arguably irrelevant because the contract was exchanged and settled on the same day] and to terminate the Sale Contract. As the plaintiffs point out, SCBP does not seek to terminate the Sale Contract. The clause does not appear to affect the plaintiffs' claims concerning the efficacy or enforceability of the mortgage. Further, as the plaintiffs point out, there is clear authority that such a clause may well have little effect in the cases of fraud or claims under the Trade Practices Act: In Clark Equipment (Australia) Limited v Covcat Pty Limited (1987) 71 ALR 367, Sheppard J stated at 71:

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"This letter is for you and only you. It is not intended for your attorneys of consultants. I have not shared it with my attorneys, consultants, Chicagoland or Australian personnel. My intent is to make my position very clear without embarrassing you or going to battle. I'll end with some suggestions about how you might want to proceed. First, I was disappointed to hear your position on Sunday evening and to receive your fax today. You appear to blame Abbott for not conducting a thorough environmental audit on your behalf. In fact, conducting an environmental audit is clearly the responsibility of the Buyer. I have completed hundreds of transactions in over 40 different countries and the environmental audit in all cases, has been the responsibility of the Buyer. Why would any intelligent Buyer want or trust the Seller to conduct due diligence on the property that the Buyer will own? It doesn't make sense and it is certainly not common practice. Don't you personally, or your mechanic look under the hood when buying a used car. Sections C and E of or October 2, 1999 letter Agreement gave you 90 days to conduct due diligence and environmental audits. I never promised to perform any due diligence or provide any reports. In fact, I was unaware of the existence of any environmental reports for that site. The reports that were given to you were never intended to be, nor represented as, thorough environmental reports for the purpose of evaluating a property for purchase. Those reports were simply information that we had on hand that we elected to provide to you. It was clearly your responsibility to conduct whatever tests and audits that you deemed necessary within your 90 day due diligence period. Paul, I am disappointed to learn that you did not conduct any environmental audits during your due diligence period, and I'm even more disappointed that you're now blaming Abbott for not doing so. It's also very distressing to be having these conversations now rather than 6 months ago." [First four paragraphs of the letter from Mr Rogers of Abbott Laboratories to Mr Paul Williams dated April 4, 2000]

[67]

The undeveloped portion of the site appeared to have been used for illegal dumping of car wrecks. Whilst driving around the perimeter of the site, it was observed that significant quantities of material (building rubble, furniture, mattresses, other material) had been dumped along the road. It is possible that material may have been dumped in areas of the site not visited during the inspection." 67 I have taken into account the submissions which were strongly pressed by the defendants to the effect that in weighing the serious case, as well as the balance of convenience, the Court should be heavily influenced by the failure of the plaintiffs to make any claim for relief by way of the setting aside of the contract for sale or the rescission of the contract for sale or the avoiding of the contract for sale. In short the submission is this: that standing back from the whole of the litigation, the plaintiffs may be regarded as developers who seek, notwithstanding the claims for relief in terms of damages for misrepresentation, to simply set aside the security documents, that is to say the mortgage and guarantee, to have the Court restrain the defendants from, pending the final hearing, enforcing the security documents, to keep by the second plaintiff the ownership of the land and to obtain funding for its remediation from the defendants. The contention is that these proceedings make plain, and this manner of viewing the proceedings makes plain, that on the balance of convenience the injunctive relief should not be granted or if granted, should not be granted to the extent of a regime which would include there being no obligation pending final hearing on the plaintiffs to pay relevant interest. 68 Whilst these submissions are taken into account and represent an attractive way of looking at the litigation from the defendants' perspective, the truth is that the whole of the litigation requires to be weighed and that the evidence before the Court at an interlocutory level of the alleged misrepresentations, their type and, if they are made out, their significance, suggests that the defendants' attempt to so thumbnail sketch the proceedings, failed to do justice to the real nature and gravamen of the proceedings. They are deceit proceedings as well as proceedings based on misleading and deceptive conduct allegations. Whilst the Court is unable to deal with contested factual issues in the course of an interlocutory hearing, it has to be said that the plaintiffs have mobilised substantial materials to support at an interlocutory level, a finding of a serious case, which albeit at an interlocutory level, in my view, applying the conventional tests and including the balance of convenience test, does justify injunctive relief being granted. 69 In my view, at an interlocutory level the Court should accept that a serious case has been shown by the plaintiffs to the effect that the consequences of the contamination may well be that their plans to use the land and to refinance the mortgage have been affected. Mr Smith's evidence albeit at an interlocutory level is to the effect that some 13,500 truckloads of material plus 1,500 tanker loads of contaminated ground water would probably have to be removed from the landfill area alone. 70 The plaintiffs' case is that this huge area is unsuitable for construction activity. 71 As the plaintiffs' further submit, at least at an interlocutory level the Court may take into account the evidence from which it may be inferred that the defendants recognised the importance of financiers being satisfied that the site was clean: cf Camfield email to Rogers of 6 April 2000 [Exhibit 14 to the affidavit of Walsh.] which stated:

Paul Douglas Williams & Anor v Abbott Australasia Pty Limited & Anor

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