Basile v Philpatrick Pty Ltd & Anor [1992] QSC 244

TRANSCRJPT OF PROCEEDINGS Sute Reporting Bureau, 4th F1oor, The Law Courts George Street, ' BRISBANE. 0. 4000 Tel. (07) 2Z7.4360 (Copyright in this transcript is vested in the Cro'Wll. Copies thereof must not be made or sold without the written · authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J No 994 of 1992 LISA BASILE Plaintiff and PHILPATRICK PTY LTD First Defendant and CLAYFIELD PTY LIMITED Second Defendant BRISBANE .. DATE 30/6/92 JUDGMENT 1 -- 1 of 5 -- '.r 300692 JUDGMENT HIS HONOUR: An application has been made for an interlocutory injunction restraining the defendants until trial or further order from doing anything to obtain possession of shop premises currently occupied by the plaintiff. A critical issue in disput.e between the parties is whether the plaintiff properly exercised an option to renew a registered lease of the shop premises~ I refused leave to counsel for the defendants to cross-examine the plaintiff on a paragraph in her affidavit. ··In American Cyanamid v. Ethicon Ltd (1973) AC 396 at p 407 it was said by Lord Diplock that, "It is no part of the Court's function at this stage of the lit~gation to try to resolve conflicts of evidence on affidavits as to facts from which the claims of either party rri.ay ultimately depend." Leave to cross-examine on affidavits read in applications for interlocutory injunctions should, I consider, be granted only in exceptional circumstances. I do not consider that exceptional circumstances exist in this case, particularly where the proposed cross-examination on the paragraph could not be determinative of the issue between the parties. I am satisfied there is a serious question to be tried between the parties. Indeed, it was not suggested that the position was otherwise. It was, however, submitted for the defendants that an interlocutory injunction should not be granted since the plaintiff would be adequately compensated by an award of damages for any loss she may have sustained by the defendants' 2 ., 10 20 0 0 30 0 40 0: 50 60 -- 2 of 5 -- ( 300692 actions, and the plaintiff may not be able to compensate the defendant adequately under the undertaking as to damages. The plaintiff has deposed that she has conducted a hairdressing salon sine~ 1977 in the shop premises. On 19 April 1989 she entered into a lease for a term of years commencing on 1 June 1989. It contains an option renew upon four months' notice in writing of intention to exercise the option. She claims that on 14 January 1992 three to she gave notice of her intention to exercise the option to renew. As already mentioned, the main question is whether the option was properly exercised. The plaintiff deposes that she has achieved a considerable goodwill in the business, based upon its location and convenience to her clients. She claims that if she conducted the business from different premises she would lose 90 per cent of this goodwill. She has foupd no suitable premises to which her hairdressing salon may be relocated. For the respondents it is claimed that possession of the premises occupied by the plaintiff is fundamental to a ~. / proposed improvement of the shopping centre in which the plaintiff's salon is located. It is deposed that the Totalisator Agency Board of Queensland, which occupies premises at the centre, has indicated that these premises are unsatisfactory for their requirements and, unless alternative premises can be found, ther~ is a real risk of losing it as a tenant. If that occurred, this would seriously devalue the centre, since the TAB operates as a major draw. It is stated that plans are well advanced for a relocation in the centre of 3 10 20 30 40 50 60 -- 3 of 5 -- '·· 300692 the newsagent and a butcher. The premises occupied by the plaintiff and the newsagent will comprise the new TAB premises and the newsagent, butcher and a fruiterer will occupy premises in close proximity to each other. It is stated that on the basis that the defendants will be able to proceed with reorganisation of the centre, certain offers have been made to other tenants in relation to the relocations. If these are not able to occur, the defendants will suffer severe loss of income and the centre will depreciate in value. The plaintiff's claim, if upheld, would entitle her to an interest under a registered lease. The effect of refusing the interlocutory injunction sought would be to terminate or at least seriously disrupt the plaintiff's long-established business. It might also involve breach of a contract of apprenticeships into which she has entered. It would be extremely difficult to quantify her loss in damages, and this is a factor which leads me to consider that damages is not an adequate remedy and that the status quo should be preserved, see Merchant Adventurers Ltd v. M Greu & eo Ltd [1972] 1 Ch 242 at p 256 and Dunhill v. Sunoptic SA (1979) FSR 337 at p 365. In relation to the defendants' contention that an undertaking in the usual form by the plaintiff may not adequately compensate for the loss which they would have sustained by being prevented from dealing with the premises, it is pertinent to point out that the material does not disclose that any loss will actually be suffered. It discloses that there is a real risk of losing the TAB as a tenant, but it 4 10 20 0 0 30 0 40 0 50 60 -- 4 of 5 -- I.' ; . 300692 does not indicate any time when such risk may possibly eventuate, and it discloses also that certain offers have been made to other tenants, though whether they have been accepted or whether the tenants would be content to continue with the current arrangements does not appear. 10 On balance, I consider that the status quo should be preserved, particularly in a case where the applicant has been in occupation of the premises for a considerable time. Any prejudice to the defendants by maintaining the status quo can ( be mitigated by making an order for a speedy trial. 20 Accordingly, upon the usual undertaking as to damages, I make ( an order in terms of the notice of motion. I shall hear submissions as to directions I should give in relation to a speedy trial. 30 I HIS HONOUR: I will make an order in terms of the amended \ draft which I will initial. 40 50 60 5 -- 5 of 5 --