Dorothy Jonns & Anor v Kim Seong Tan & 2 Ors [1999] NSWSC 648

Dorothy Jonns & Anor v Kim Seong Tan & 2 Ors [1999] NSWSC 648

The injunction was continued because the Plaintiffs established a sufficient prima facie case. The option and annexed contract put the Second Defendant on constructive notice of the Plaintiffs' registered lease, the right of pre-emption, and that the right had been triggered by the option. Whether the Plaintiffs' triggered right was a mere equity or an equitable interest, there was a serious question that it could prevail against the Second Defendant by reason of notice and unconscionability. Given the special value of the shop to the Plaintiffs, damages were not shown to be an adequate remedy, and the early final hearing before expiry of the option made the balance of convenience favour...

Jurisdiction
Australia
Judgment Date
11 June 1999
Procedural Posture
Equity Proceeding Concerning a Right of First Refusal or Pre Emption Under a Lease / Interlocutory Application to Continue an Ex Parte Injunction
Outcome
Injunction continued.
Legal Topics
['right of First Refusal' 'right of Pre Emption' 'option to Purchase Land' 'equitable Interests' 'mere Equity' 'constructive Notice' 'unconscionability' 'interlocutory Injunction' 'specific Performance' 'adequacy of Damages' 'balance of Convenience']
['equity' 'property Law' 'leases' 'contract Law'] ['right of First Refusal' 'right of Pre Emption' 'option to Purchase Land' 'equitable Interests' 'mere Equity' 'constructive Notice' 'unconscionability' 'interlocutory Injunction' 'specific Performance' 'adequacy of Damages' 'balance of Convenience']

Case Brief

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Procedural Posture

Equity Proceeding Concerning a Right of First Refusal or Pre Emption Under a Lease / Interlocutory Application to Continue an Ex Parte Injunction

Legal Issues

  1. 1 ['Whether the Plaintiffs had established a prima facie case sufficient to continue the interlocutory injunction restraining exercise of the option to purchase Shop 11 in Neutral Bay.' 'Whether a triggered right of pre-emption remains a mere equity or becomes an equitable interest in land.' "Whether the Second Defendant, as nominee under the option and on notice of the Plaintiffs' right of pre-emption and its triggering, could unconscionably enforce the option in priority to the Plaintiffs." 'Whether damages would be an adequate remedy for the Plaintiffs.' 'Where the balance of convenience lay pending an early final hearing before expiry of the option.']

Ratio Decidendi

The injunction was continued because the Plaintiffs established a sufficient prima facie case. The option and annexed contract put the Second Defendant on constructive notice of the Plaintiffs' registered lease, the right of pre-emption, and that the right had been triggered by the option. Whether the Plaintiffs' triggered right was a mere equity or an equitable interest, there was a serious question that it could prevail against the Second Defendant by reason of notice and unconscionability. Given the special value of the shop to the Plaintiffs, damages were not shown to be an adequate remedy, and the early final hearing before expiry of the option made the balance of convenience favour...

Court Disposition

Injunction continued.

Orders

  • ["The Plaintiffs' existing injunction should continue until further order together with their undertaking as to damages." 'Costs should follow the event and be awarded to the Plaintiffs.' 'The matter was set down before Santow J for argument on a final basis on 6 and 7 July 1999.' "The parties were to file all...