Wills v Austen [2013] NSWSC 369

Wills v Austen [2013] NSWSC 369

The plaintiff established a prima facie case for limited interlocutory injunctive relief because the uncontroverted evidence indicated that part of the purchase price remained unpaid, giving rise prima facie to an unpaid vendor's lien. Although the evidence was unsatisfactory and hearsay, it was read without objection and could be acted on at an interlocutory hearing. The undertaking as to damages was adequate in the circumstances because there was no evidence that the defendants intended to deal with the property or would likely suffer significant loss, and they could apply to vary or discharge the injunction if circumstances changed.

Jurisdiction
Australia
Judgment Date
04 April 2013
Procedural Posture
Equity Division Proceedings Seeking an Order Under S 740 of the Real Property Act 1900 (new South Wales) or Interlocutory Relief Restraining Dealings With Land / Interlocutory Injunction Application
Outcome
Interlocutory injunctive relief granted until 5 pm on 22 April 2013, with directions for evidence, defence, and further listing; costs reserved.
Legal Topics
['interlocutory Injunctions' 'undertaking as to Damages' "unpaid Vendor's Lien" 'caveats' 'torrens Land']
['practice and Procedure' 'equity' 'real Property'] ['interlocutory Injunctions' 'undertaking as to Damages' "unpaid Vendor's Lien" 'caveats' 'torrens Land']

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Procedural Posture

Equity Division Proceedings Seeking an Order Under S 740 of the Real Property Act 1900 (new South Wales) or Interlocutory Relief Restraining Dealings With Land / Interlocutory Injunction Application

Legal Issues

  1. 1 ['Whether the plaintiff had made out a prima facie case for interlocutory injunctive relief restraining the defendants from dealing with the land.' "Whether the plaintiff's evidence, although hearsay and unsatisfactory, could be acted on at an interlocutory hearing." "Whether the plaintiff's undertaking as to damages was sufficient in light of the likelihood and magnitude of possible loss to the defendants."]

Ratio Decidendi

The plaintiff established a prima facie case for limited interlocutory injunctive relief because the uncontroverted evidence indicated that part of the purchase price remained unpaid, giving rise prima facie to an unpaid vendor's lien. Although the evidence was unsatisfactory and hearsay, it was read without objection and could be acted on at an interlocutory hearing. The undertaking as to damages was adequate in the circumstances because there was no evidence that the defendants intended to deal with the property or would likely suffer significant loss, and they could apply to vary or discharge the injunction if circumstances changed.

Court Disposition

Interlocutory injunctive relief granted until 5 pm on 22 April 2013, with directions for evidence, defence, and further listing; costs reserved.

Orders

  • ['Note that the plaintiff by counsel gives to the Court the usual undertaking as to damages.' 'Order that up until 5 pm on 22 April 2013 the defendants or either of them be restrained from dealing with the land 12 Bombi Road, McMasters Beach, being the land titled in Torrens folio number B/363802.' 'Direct the...