27 More recently, the Court of Appeal, in Bradto Pty Ltd v. State of Victoria,[4] considered the appropriate test in granting an interlocutory injunction, whether the injunction be prohibitory or mandatory and whether the injunction be tantamount to final relief or only intermittent in relief. Prior to the decision in Bradto, it was seemingly uncertain in Victoria whether a different test should be applied when seeking an interlocutory mandatory injunction, and whether a different test should be applied when seeking an interlocutory injunction that was tantamount to final relief than when seeking an interlocutory prohibitory injunction.
28 It seems from Bradto that in seeking either a mandatory or an injunction tantamount to final relief, tests have been applied that are more onerous than, or in addition to, those applied in the case of merely prohibitory injunctions. Bradto abolished the different tests for different categories of injunction and seems to suggest that a single test should now be applied in all cases where an interlocutory injunction is sought. Bradto seems to establish further that in determining whether to grant an interlocutory injunction, a court should take whichever course appears to carry "the lower risk of injustice", should it eventuate that the interlocutory decision not be conciliatory with the final determination of the matter at trial.
29 Bradto also clarified that the question as to what course carries the lower risk of injustice is informed by, amongst other things, the well-established and interrelated considerations of: (1) whether there is a serious question to be tried at trial and the likelihood of the plaintiff succeeding at trial; and (2) where the balance of convenience lies as between the parties.
30 Turning first of all to the matter of whether there is a serious question to be tried, the first matter alleged by the plaintiff is that there was a binding and certain agreement. I accept the submissions of Mr Marantelli that the case of the plaintiff is weak as to an agreement under Masters v. Cameron. It would follow, therefore, that the plaintiff would face difficulties in demonstrating that there was a serious question to be tried on the basis of the material presently before me. However, that is not the end of the matter. There is the question of the representations allegedly made. The test does not require the plaintiff to make out its case, merely to demonstrate that there is a serious question to be tried, or in other words, that it has an arguable case.
31 Mr Marantelli took me through the various documents and, in particular, the minutes of the meetings of July and October 2003. However, there are matters deposed to in the affidavit of Mr Roberts that are refuted in the affidavit of Ms Barnett. Ultimately, there are critical events that would be necessarily the subject of viva voce evidence at trial and necessarily cross-examination. Of itself, the affidavit of Mr Roberts is not entirely satisfactory. It is very limited in terms of specificity with respect to the representations that are alleged. Be that as it may, I am satisfied on the material before me that there is at least an arguable case and that there is a serious question to be tried with respect to the claim lying in misleading and deceptive conduct and equitable estoppel. But, of course, there remains the question of the balance of convenience.
32 It was conceded in the course of argument by Mr Marantelli that the primary functional purpose of the defendant company has been completed with the sale of the property. It was further acknowledged and conceded for the plaintiff that the company was no doubt a single purpose company. There was no resistance or suggestion that the proceeds of the sale would not be distributed and dissipated absent an order of this Court. Rather than approaching the matter that way, the case of the defendant was put on the basis that there was no serious question to be tried and that, accordingly, the issue of the dissipation of the assets, in effect, did not arise.
33 In the course of submissions, Mr Robins referred to the judgment in Harrison & Partners Construction Pty Ltd v. Jevena Pty Ltd.[5] Mr Robins relied upon the judgment in Harrison to support an argument that, in this case, the focus should be on the result of the defendant's activity and not the intent which might accompany its dissipation of the proceeds of sale. Quite properly, Mr Robins did not suggest that there was any conduct of an improper or fraudulent nature on the part of the defendant. Rather it was said that unless ordered not to do so, it was apparent that the defendant would proceed to dispose of the proceeds of sale.
34 There was the question of the relief ultimately sought at trial by the plaintiff. The amount of money sought to be frozen by virtue of the Mareva order is at least $400,000 to be retained in a bank account. In his affidavit, Mr Roberts deposed that the loss and damage of the plaintiff was in the order of $600,000 to $700,000. He exhibited to his affidavit a document setting out the costs described as being associated with "Bayley Walk (Malvern Project)".
35 Mr Marantelli drew my attention to the fact that the sum listed in the document, whilst totalling the amount of $4,257,132, was principally made up of sums incurred prior to 2004. He took me through the document and demonstrated that most of the amounts were in the order of $4,000 or less and ultimately amounted to approximately $20,000. In particular, Mr Marantelli drew my attention to an item described as "bill interest" in the amount of $511,413. Mr Marantelli was critical of the plaintiff's case that, in terms of the damage that was suffered allegedly by the plaintiff, it was unsatisfactorily particularised or quantified for the purposes of this application.
36 I turn then to my conclusions in this matter. For the reasons I have stated, there is a serious question to be tried as to the matter of the representations alleged by Mr Roberts in his affidavit. That being so, there is then the question of the balance of convenience.
37 For the defendant, it can be plainly stated that it has conducted itself so that it has responded to enquiries and correspondence from the plaintiff, including the letter of Coadys of December 2004. The response has not been acted upon by Mr Roberts on behalf of Bayley Walk, or indeed by Bayley Walk itself.
38 It might also be said against the plaintiff that it has failed to avail itself of the opportunity to put the defendant on notice at an earlier time as to the position with respect to the sale and its call upon the proceeds of sale.
39 In light of the observations of the Court of Appeal in Bradto, there is the question in the exercise of the discretion as to the course which appears to carry the lower risk of injustice, should it eventuate that the interlocutory decision not be conciliatory with the final determination of the matter at trial. It is not apparent to me that there is injustice that will lie so far as the plaintiff is concerned. Insofar as there may potentially be dissipation, that is a matter about which the plaintiff could and ought have resolved by way of taking action at an earlier period in time. That leads me to the matter of delay.
40 In the course of submissions, Mr Robins relied quite forcefully on the principle, well known at law, that delay of itself is not sufficient.[6] Necessarily it needs to be demonstrated that there will be prejudice to the other party even where there has been delay. In the circumstances of this matter, I am satisfied, on the face of the material before me, that there would prejudice to the defendant if the injunction was granted, by virtue of the fact that it acted to sell its property, at least since the beginning of 2006, when the plaintiff could have taken action if it had wished to do so. Any prejudice the plaintiff might suffer if an injunction is not granted is of its own making. Its delay is critical.
41 Weighing all matters up, it seems to me that the balance of convenience, in any event, lies with the defendant and that the plaintiff fails to make out its case on this point.
42 Accordingly, I consider that the injunction should not be granted as sought by the plaintiff and, insofar as necessary, I would dissolve any orders made previously.