Darling Downs Group Operator Pty Ltd v Westpac Banking Corporation, Hail & Rees [1996] QSC 112

(11,o<_. Sc qb/1t2.. /4J_; State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY J OS No 4793 of 1996 RE:'J\:'3!.=:D COPtCS lSSL!ED IC,4r-,.J.n, ~C.QF'! .. ~;--,r• ~I ,.,.,:;.au IDa:~7;' t;""£l ...J IN THE MATTER OF THE PROPERTY LAW ACT 1974 and DARLING DOWNS GROUP OPERATOR PTY LTD ACN 009 793 140 v. WESTPAC BANKING CORPORATION, IAN RICHARD HAIL and JOHN ROBERT REES BRISBANE .. DATE 19 / 06/96 JUDGMENT Th • • I ..._,_,._.._,,__,,,_;~;-~:-;:::::-==-:-::-------·-----=--- IS I'!!'\; r!':;1,.,i:'l"'t" ,,.......••,. , ~ ' ~'"'"'·:::•"-·"i ,..:; :o oe copied for the p· t"po,...,.., ~ . on,y. H is not to h~ ~.c.sotct or used , w -=>~ o. resoarch and ~:;dvate study...,,_, n.. • 10r reput ,. .... . ' . . . o.1caHon m any other way without perm1ss1on~ , 1 4th Floor, The Law Courts, George _Street, Brisbane, Q. 4000 Telephone: (07) 3227 4360. Facsimile: (07) 3227.5532 -- 1 of 4 -- 190696 12 TS/FC M/T 786/96 (de JERSEY J) HIS HONOUR: This is an application by Darling Downs Group Operator Pty Ltd to restrain a mortgagee in possession from selling plant and improvements at the property known as Balgowan, near Oakey, said to be owned by Darling Downs Group Operator Pty Ltd. The auction is to take place next Wednesday, 26 June 1996. The property which the bank intends selling, the bank being the mortgagee, includes what would appear to be fixtures on the land, that is, silos and sheds and the like, many of those structures being secured to the land by concrete and bolts. The bank does not intend selling plant and equipment over which the present applicant claims title and has invited the applicant to remove those items from the property. That, I understand from the material, has not occurred but, as I have said, the mortgagee does not intend selling those items. This is a case where the plea made against an injunction which, to my mind, is most substantial is that if the applicant is indeed entitled to these items, and they are sold wrongfully by the mortgagee, then it will nevertheless have a claim for damages against the mortgagee which would be perfectly secure, having regard to the identity of the mortgagee. It was conceded by counsel for the applicant that there was no argument here that the items were unique such as might dissuade me from giving ordinary weight to the significance of damages as an adequate remedy. 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 4 -- 190696 12 T5/FC M/T 786/96 (de JERSEY J) One hesitates to contemplate the possibility of a mortgagee selling property over which there is a substantial dispute as to title but in this case, I am quite satisfied that damages would be an adequate remedy, were it ultimately found in other proceedings that the mortgagee had sold property to which it was not entitled. There are other issues which have been raised. I have not found it necessary to deal with those in the course of this judgment because I consider the adequacy of damages to be a complete answer to the claim for an injunction but there is substance I might mention to some of the other points raised by counsel for the respondent as well. The respondent sought as well an injunction from its side restraining the present applicant, Darling Downs Group Operator Pty Ltd, from interfering with the sale. There is a relevant injunction against its principal, Mr Reeve, but Mr Liddy who appeared for the mortgagee is concerned that there is no current restraint against the company. As I said during argument, the Court does not grant injunctions unless there is ground for perceiving a risk that parties will act unlawfully. I know that suspicions might be founded in the substantial history of this matters as it is reflected by the affidavit material but I do not think suspicions are enough really to warrant the granting of an injunction in a case like this. I was referred to an attempt launched a couple of days ago only to obtain an undertaking from the applicant that it would not interfere with the sale. That has not been forthcoming but I 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 4 -- 190696 12 TS/FC M/T 786/96 (de JERSEY J) do not think that I should - especially because of that time limitation - draw any inference adverse to the applicant from that failure to respond. I might say that the applicant would, in my opinion, be very ill advised to seek to interrupt the sale but having said that, this is a Court of law and I do not consider that the conditions prerequisite to my today granting an injunction against this company have been satisfied. I dismiss the application made by the applicant in originating summons 4753 of 1996. HIS HONOUR: That concerns the valuation of the items in question though some of them anyway will probably be sold, if a sale eventuates, as part of the property but that should not render particularly difficult the question of valuing those items. It should be within the province of an ordinarily competent valuer to assess the value of all of the property which is in issue in these proceedings and indeed it may be, .as the bank contends, that the applicant's position will be bettered through the sale of the silos, for example, and the sheds as part of the real estate. 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 4 --