Kiama Development v Wilcox [1999] NSWSC 3 (5 January 1999)

Last Updated: 1 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: KIAMA DEVELOPMENT v WILCOX [1999] NSWSC 3

CURRENT JURISDICTION: EQUITY DIVISION

FILE NUMBER(S): 3483/98

HEARING DATE{S): 5 January 1999

JUDGDMENT DATE: 05/01/1999

PARTIES:

KIAMA DEVELOPMENT CO PTY LTD v ROSSANA WILCOX & ORS

JUDGMENT OF: Bryson J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

PLAINTIFF: DOUGLAS KNAGGS SOLICITOR

DEFENDANT: MR R J BROMWICH

SOLICITORS:

PLAINTIFF: DOUGLAS KNAGGS SOLICITOR

DEFENDANT: MARTINS

CATCHWORDS:

COURTS and JUDGES

PRACTICE and PROCEDURE

judgment reserved

fresh interlocutory application

on the facts the Court declined to re-open existing interlocutory restraints while judgment remained reserved.

ACTS CITED:

Crown Lands Consolidation Act 1913 s226

DECISION:

SEE PARAGRAPHS 15-18

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

BRYSON J

TUESDAY, 5 JANUARY 1999

3483/98

KIAMA DEVELOPMENT CO PTY LTD v ROSSANA WILCOX & ORS

JUDGMENT

1 HIS HONOUR : These proceedings relate to shop premises on the Kiama Harbour Wharf which the defendants have subleased from the plaintiffs.

2 The plaintiffs make many claims in the proceedings relating to allegations that the defendants have engaged in unfair conduct in trade, and they also claim to establish that there have been breaches of covenants of the sublease, and attack the defendants' entitlement to continue in possession. The proceedings went to trial before Young J, who reserved judgment on 2 December 1998 and has not yet determined the matter.

3 The defendants apply by notice of motion dated 24 December 1998, but not actually filed until today, for orders which would overcome some conduct of the plaintiffs in the period since judgment was reserved. Their claim is that the plaintiffs changed the locks on the defendants' shop premises and should restore the keys and should be restrained by injunction from changing the locks again or interfering with quiet enjoyment.

4 The application came before the court in circumstances of great urgency on 24 December and again on 29 December. Consent orders were made with effect for a short time, which required the plaintiffs to restore the keys and restrained them from changing the locks or interfering with quiet enjoyment, and after further adjournment on 29 December those arrangements have effect until today only.

5 The defendants' counsel's position is that the restraints in orders 2 and 3, that is the injunction, should be continued in effect until judgment is given by Young J, and he continues to offer the usual undertaking as to damages upon which the earlier orders were based.

6 The plaintiffs' solicitor's position, however, is that I should hear the notice of motion at length during vacation and should now give directions to bring that about.

7 The defendants' prima facie position in support of their having the interlocutory relief claimed is very strong. An interlocutory arrangement was made, recorded in a form of memorandum of agreement, during proceedings before Cohen J on 6 and 7 October 1998, which regulated what the parties were to do about possession pending decision of the case, on a basis which clearly shows that both parties were to continue in occupation of their then premises.

8 The effect of what the defendants ask is that that arrangement should continue until judgment is given. The plaintiffs' position, however, is that since judgment was reserved there have been further events constituting further breaches of covenant.

9 Those events, while different in time to events complained of before Young J, are, I think it is fair to say, of much the same kind as events and conduct submitted for adjudication to his Honour.

10 A further matter which the plaintiffs' solicitor tells me he also wishes to rely on is the illegality which he contends the sublease is subject to, having regard to s 226 of the Crown Lands Consolidation Act 1913, which, except in limited and irrelevant cases, forbade subleases. However, there is no evidence and there is no sign of any adverse action by the Crown threatening the lease or the sublease or relying on any supposed illegality.

11 In the absence of any threat to the right of possession of either party from the Crown, which is the party protected by s 226, I do not think that the question whether or not the sublease is affected by illegality has such urgency as to justify addressing it fully during vacation. Indeed, not only is it appropriate that the arrangement which existed as of the time when judgment was reserved should continue during vacation; it appears to me on the material before me now that it should continue until Young J gives judgment.

12 The continuation of what the plaintiffs say are events which constitute breaches of covenants since judgment was reserved, after many months in which the parties have been in conflict and at law against each other, does not seem to me to constitute a reason for treating the matter as urgent or giving it an urgent hearing, or for doing anything else but accepting that the existing position when judgment was reserved should be continued.

13 If in the future it becomes known that the defendants were not entitled to possession, and that the plaintiffs were right to lock them out, no doubt remedies will be available.

14 The parties are enmeshed in their lawsuit and must be held at a stand until a determination of rights is available.

15 The order is: Orders 3 and 4 of 24 December 1998 are continued in effect upon the defendants' previous undertaking until final determination of these proceedings or earlier further order.

16 The defendants' costs of the notice of motion of 24 December 1998 are defendants' costs in the proceedings.

17 (Mr Knaggs sought leave to apply, if not during vacation, during February.)

18 Each party has leave to apply on two days' notice.

I hereby certify that paragraphs 1-18 are the reasons for

judgment of the Honourable Justice John Bryson.

Dated 28 January 1999. (H D LEWIS)

Associate.

LAST UPDATED: 28/01/1999