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  • Unreported Judgment

Nashvying Pty Ltd v Giacomi

 

[2006] QSC 113

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

JONES J

Claim No 98 of 2006

NASHVYING PTY LTD ACN 058 373 390

First Plaintiff

and

 

CQ INNOVATIONS PTY LTD

Second Plaintiff

and

 

MOHAMMED VALI YOUSEFPOUR

Third Plaintiff

and

 

LILLIAN MARY GIACOMI (in her own right,

Defendant

and as executrix of the estate of the late ALDO GIACOMI)

 

CAIRNS

DATE 07/04/2006

JUDGMENT

HIS HONOUR: By this application the plaintiffs seek interlocutory injunctions, one of them in mandatory terms, pending the hearing of the claim and counterclaim. The pleadings have not yet closed but the issues are sufficiently identified in the claim and counterclaim before me.

The main issue raised in the pleadings to date concerns the validity and certainty of terms of a registered lease over land at Bahama Gorge near Cairns and of a licence agreement concerning the use of land. The lease was entered into between the first plaintiff and the defendant and her late husband in 1992. The defendant is the executor of her husband's estate.

There are other issues about whether the second plaintiff has any standing in the claim because of arguments about the effectiveness of an alleged assignment of interests under the lease and licence to that entity. That is not a question which I can determine on the material before me and so I will simply refer to the plaintiffs collectively.

The determination of the application requires initial consideration of whether there is a serious question to be tried and wherein lies the balance of convenience between the parties. Without going into the details of the issues it is clear enough that there are serious questions to be tried. The arguments raised before me focus on the preponderance of convenience particularly having regard to the fact that one of the orders seeks to compel the defendant to consent as registered owner of the land to the plaintiffs making an application for development permit to establish a quarry industry on the demised land.

Mr Griffin, of Queen's Counsel, for the defendant referred to familiar principles identifying the Court's reluctance to grant mandatory interlocutory injunctions. He referred to particularly to the remarks of Gibbs CJ in the State of Queensland v Telecom 59 ALR 243 particularly at page 245. It appears from the passages cited that a mandatory injunction is never made as of course and that a factor to be taken into account is that the defendant has not behaved unreasonably or even wrongly.

Further expressions included that a mandatory injunction can be granted at an interlocutory application as well as at a hearing but in the absence of special circumstances it will not normally be granted. Some circumstances were identified as where the defendant attempts to steal a march on the plaintiff and no doubt other conduct is pertinent as well. The quoted remarks taken from Halsbury Laws of England, volume 24 paragraph 948 were not intended to be exhaustive.

One other term that was used drawn from the case of Shepherd Homes versus Sampan (1971) 1 Chancery 340 at 351 was that the Courts must feel a high degree of assurance that a trial - that it would appear that the injunction was rightly granted. These factors have to be weighed as part of the balance of convenience consideration. The need to show likelihood of a applicant suffering “irreparable injury” is another phrase in the lexiconography of this area of the law.

By signing the application for development permit the defendant suffers no immediate damage. This act simply permits the application to proceed. If the development permit is not granted the defendant in this case would suffer no loss. If the development is approved the terms of the approval attach to the land burdening the owner and successors in title. (See section 3.5.28 of the Integrated Planning Act). If the approval was a burden for the defendant she may seek its cancellation provided that request was made before the subject development commenced. (See section 3.5.26).

In terms of the development proposed here that start of development is a long way off. According to the opinion of Mr Bruce Hedley, town planning consultant, the approval process is likely to take between 45-73 weeks. (See paragraph 23 to the affidavit sworn 16 March 2006.) The legal issues between the parties could be determined within this timeframe but if not there would be grounds for the development works being restrained until the claim was finalised.

If the legal process is determined in favour of the defendant prior to approval the application for approval would not proceed. If determined in favour of the plaintiffs then it would proceed as a matter of plaintiffs' rights. In either event the defendant would not be put to any inconvenience or expense while this course was followed.

From the plaintiffs' perspective the evidence shows that there have been two prior failed attempts to gain approval. Mr Hedley attests to the desirable quality of the materials available in the lease area and to the demand for the materials of that quality. Dr Yousefpour gave evidence of his concerns about competitors making applications which if granted before consideration of the plaintiffs' application might result in further delay in undertaking the venture and receiving the expected returns.

The preparation of an application for such a permit includes making investigations, expert assessments and the development of an environmental impact statement. Delays in presenting this material inevitably give rise to the need for further updating and associated delay and expense.

The delay in gaining approval to the present time was apparently at the heart of the defendant's objection prior to the commencement of these proceedings. However the grounds upon which the claim now proceeds concerns the validity of the documents as I mentioned above. But in respect of delay I do not find any deliberate or capricious delay on the part of Dr Yousefpour. He and the corporate entities have made significant investments in this venture and no doubt would be interested in a recovery of some part of it.

Mr Philp, Senior Counsel for the plaintiffs, argues that the cooperation of the defendant in seeking approval is at the very heart of the agreements. There can be no return for any party unless the development application is approved. The process can not begin without the defendant's signature to the application to the local authority. Having mentioned therefore that there is little or no downside risk for the defendant in signing the application compared with the prospect of increased expense and the worse prospect of even greater delay it seems to me that the balance of convenience favours the granting of the injunction sought. I regard the circumstances here where there is little or no harm to the defendant by her having to take the action which is contemplated sufficiently special to grant the mandatory injunction as sought.

I propose therefore to make orders in terms of the draft which I will now initial and place with the papers. That is the draft, Mr Griffin, which was attached to Mr Philp's outline, corrected as was suggested in paragraph 1 by deleting the word “second plaintiff” and substituting therefor the words “plaintiffs or any of them.”

HIS HONOUR: If we delete the words “forthwith” it will allow the opportunity for her to take legal advice. I will give the parties liberty to apply should there be any difficulties. It is a part of the order. Yes. Thank you, gentlemen.

Close

Editorial Notes

  • Published Case Name:

    Nashvying Pty Ltd v Lillian Mary Giacomi

  • Shortened Case Name:

    Nashvying Pty Ltd v Giacomi

  • MNC:

    [2006] QSC 113

  • Court:

    QSC

  • Judge(s):

    Jones J

  • Date:

    07 Apr 2006

Litigation History

No Litigation History

Appeal Status

No Status