Bist v Cyan Stone Clydesdale Estate 1 Pty Ltd [2024] FCA 1108

Bist v Cyan Stone Clydesdale Estate 1 Pty Ltd [2024] FCA 1108

The application for interlocutory injunction must be dismissed because, on the state of the evidence, the applicants failed to establish a real issue to be tried. Their claims face legal difficulties principally due to the indefeasibility of Astro Fort's title under s 42 of the Real Property Act 1900 (NSW); any possible exceptions for 'personal equities' require conduct (such as actual wrong-doing) that has not been demonstrated. ACL and tort claims do not overcome this, and there is no sufficient evidentiary basis for intentional wrongdoing or procurement of breach. Even if a real issue were made out, the balance of convenience (including financial risks to the mortgagee and applicant's...

Parties
First Applicant: Shashank Bist; Second Applicant: Natalia Bist; First Respondent: Cyan Stone Clydesdale Estate 1 Pty Ltd (ACN 610 208 967); Second Respondent: Cyan Stone Clydesdale Estate 2 Pty Ltd (ACN 610 209 106); Third Respondent: Cyan Stone Clydesdale Estate 3 Pty Ltd (ACN 610 210 494); Fourth Respondent: Cyan Stone Clydesdale Pty Ltd (ACN 610 008 172); Fifth Respondent: Cyan Stone Clydesdale Development Pty Ltd (ACN 610 008 467); Sixth Respondent: Cyan Stone Clydesdale Holdings Pty Ltd (ACN 610 008 510); Seventh Respondent: Astro Fort Clydesdale Pty Ltd (ACN 675 838 507); Eighth Respondent: Astro Fort Holdings Pty Ltd (ACN 675 830 270); Ninth Respondent: Marvia Joncas Holdings Pty Ltd (ACN 671 948 502)
Jurisdiction
Australia
Judgment Date
23 September 2024
Procedural Posture
Representative Proceeding / Interlocutory Application (injunction) Dismissed
Outcome
Interlocutory application dismissed with costs.
Legal Topics
Interlocutory Injunctions, Indefeasibility of Title, In Personam Exception, Unconscionable Conduct, Australian Consumer Law S 21, Conspiracy by Unlawful Means, Inducing Breach of Contract
Practice and Procedure Real Property Consumer Law Torts Interlocutory Injunctions Indefeasibility of Title In Personam Exception Unconscionable Conduct +3 more

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Parties

Shashank Bist

First Applicant

Natalia Bist

Second Applicant

Cyan Stone Clydesdale Estate 1 Pty Ltd (ACN 610 208 967)

First Respondent

Cyan Stone Clydesdale Estate 2 Pty Ltd (ACN 610 209 106)

Second Respondent

Cyan Stone Clydesdale Estate 3 Pty Ltd (ACN 610 210 494)

Third Respondent

Cyan Stone Clydesdale Pty Ltd (ACN 610 008 172)

Fourth Respondent

Cyan Stone Clydesdale Development Pty Ltd (ACN 610 008 467)

Fifth Respondent

Cyan Stone Clydesdale Holdings Pty Ltd (ACN 610 008 510)

Sixth Respondent

Astro Fort Clydesdale Pty Ltd (ACN 675 838 507)

Seventh Respondent

Astro Fort Holdings Pty Ltd (ACN 675 830 270)

Eighth Respondent

Marvia Joncas Holdings Pty Ltd (ACN 671 948 502)

Ninth Respondent

Procedural Posture

Representative Proceeding / Interlocutory Application (injunction) Dismissed

Legal Issues

  1. 1 Whether there is a real issue to be tried justifying an interlocutory injunction
  2. 2 Whether balance of convenience favours granting an injunction
  3. 3 Whether applicants have equitable claim to relief that can defeat indefeasible title under Real Property Act 1900 (NSW)

Ratio Decidendi

The application for interlocutory injunction must be dismissed because, on the state of the evidence, the applicants failed to establish a real issue to be tried. Their claims face legal difficulties principally due to the indefeasibility of Astro Fort's title under s 42 of the Real Property Act 1900 (NSW); any possible exceptions for 'personal equities' require conduct (such as actual wrong-doing) that has not been demonstrated. ACL and tort claims do not overcome this, and there is no sufficient evidentiary basis for intentional wrongdoing or procurement of breach. Even if a real issue were made out, the balance of convenience (including financial risks to the mortgagee and applicant's...

Court Disposition

Interlocutory application dismissed with costs.

Orders

  • The interlocutory application be dismissed.
  • The applicants pay the costs of the seventh to ninth respondents as agreed or assessed.