Coral Sea Properties Pty Ltd & Batagamma 41 Pty Ltd v Macfadyen [1993] QSC 69

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 THOMAS J No 1 of 1993 CORAL SEA PROPERTIES PTY LTD First Plaintiff and BATAGAMMA 41 PTY LTD Second Plaintiff and JAMES MACFADYEN Defendant CAIRNS .. DATE 26/02/93 .. JUDGMENT JUDGMENT 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 6 -- 260293 HIS HONOUR: This is a motion for judgment under Order 57 Rule 2. Final judgment in the action is sought. The relief that is requested is a mandatory injunction requiring the defendant to pull down and remove the partially completed house which he is constructing upon the allotment which he purchased some time ago from the plaintiffs. The plaintiffs are real property developers who have developed an estate situated west of Tolga in the Atherton Tableland. It is a rural residential subdivision known as the Rangeview Park Estate. The allotments purchased by the defendant in December 1990 consist of approximately 1.2 hectares. Apparently when completed there will be 101 lots. 54 of these are described as being developed and 51 of them have been sold including the one which was sold to the defendant. The defendant started to build a modest steel-framed house in about October 1991. He has proceeded quite slowly since that time doing a little at a time as and when money has become available to him. The reason for his slow progress has been the result of financial troubles due to the collapse of his business. The plaintiffs rely upon a covenant contained in a deed dated 14 December 1990 in which the purchaser of the allotment undertook certain things in relation to any building that JUDGMENT 2 10 20 30 40 50 60 -- 2 of 6 -- 260293 might be erected upon the land. The clause that is relied upon is: 11 (d) That the purchaser will expeditiously complete the erection of any said dwelling house or shed to be erected on the said lot once the erection thereof shall be commenced." Apparently, a variety of dwellings have been erected en the estate, some of them are heroes of quality whilst others are quite modest homes comparable, I think, to the style that the defendants house will be when it is completed. Its current state of development is to be seen from a number of photographs. The most recent of these shows that the .. structural members are complete, the roof has been fixed, the front cladding has been fixed to the front wall, and the verandah is virtually complete. However, cladding has not yet been fixed to the side walls or the rear wall. The verandah 10 20 floor is in place but the floor for the enclosed part of the JO house has not yet been laid although joists and bearers are fixed. The stairways have not yet been erected. A certain amount of scaffolding is still fixed which might be thought by some to be somewhat unsightly. However, the aspect as a whole is hardly off-putting. The defendant has kept the 40 site clean: he has had it slashed from time to time and overall it presents a relatively tidy appearance. There is no evidence as to the probable cost of completion but it might be described as close to substantially completed. 50 The defendant says that he hopes and expects to be able to complete it within another three months although counsel for the plaintiff points out that similar expectations have been mentioned over an extended period. In short, it has been in 60 JUDGMENT 3 -- 3 of 6 -- 260293 the process of erection now for a period of about 16 months. On the material before me it would seen that the defendant is in breach of the covenant that has been quoted above. However, the remedy which the plaintiff seeks is, to say the least, surprising and may be the result of frustration or overreaction to perceived injury. In my vi'=:w it .is impossible to see why damages for any bre~h of this covenant would not be an adequate remedy. Mr Priestly for the plaintiff submitted that in their nature such damages would be difficult to prove or quantify. That may well be true and its truth may lie in the fact that they may not be significant damages at all. That, however, is an exercise for another day. It depends upon the extent to which the Court regards the incomplete structure as an eyesore or as something that would deter other persons from purchasing other lots on the estate. These comments are relevant to one of the matters regarded as relevant to deciding whether a mandatory injunction should be granted as set out in Morris v. Redland Bricks Limited (1970) A.C. pp 665 - 666. It seems to me that if there are any damages shown on the material before me they are not likely to be particularly significant. I note that the covenant requiring expeditious completion of dwellings once commenced does not go on to confer a right to pull down such structures. In other words, the parties did not see fit to confer upon the plaintiff an express right such as he now seeks to obtain in the discretion of the Court. One of the criteria expressed in Morris v. Redland Bricks is JUDGMENT 4 1 ' 10 20 30 40 50 60 -- 4 of 6 -- 260293 that a mandatory injunction will not be granted unless the plaintiff shows a very strong probabili~y that grave damage will accrue to him in the future. In my opinion, the plaintiff has not indicated such a matter in this case. All the indications are, in my view, to the contrary. 10 The other main criterion involves the cost to the defendant of doing works that would follow from the granting of the injunction. In my view, it would be unfortunate, wasteful and destructive of an existing asset if the existing fairly substantially coppleted structure were required to be torn down. This would not be a factor that would assist me in exercising any discretion in favour of the plaintiff. 20 The defendant, I apprehend, is as anxious to complete the house as the plaintiff is. He has been stopped from doing so 30 merely by impecuniosity. It would be surprising if, in times of an economic recession, judges exercised their discretion so as to make orders against people who were short of money to pull down substantially built houses which they wish to complete but are delayed because they do not have enough money. Whatever views others might have I am certainly not constrained to exercise such a power unless the legal right to require the house to be pulled down is clearly shown. In the present matter I consider that all the factors that might justify the granting·of such an injunction are contra-indicated. I shall therefore dismiss the motion. The question of costs arises. JUDGMENT 5 40 50 60 -- 5 of 6 -- 260293 HIS HONOUR: I think that the plaintiffs probably let themselves become unduly frustrated. The writ was issued on 7 January 1993. It seems to me that in seeking a mandatory injunction, and a mandatory injunction only, the plaintiffs insisted upon the wrong remedy. The defendants have been brought to Court by the plaintiffs and the defendants have succeeded. The usual rule as to costs should apply. I shall, therefore, dismiss the motion and the action with costs to be taxed. JUDGMENT 6 10 20 30 40 50 60 -- 6 of 6 --