MCKAY V. THE COMMONWEALTH OF AUSTRALIA AND ANOTHER 20/1952

MCKAY V. THE COMMONWEALTH OF AUSTRALIA AND ANOTHER 20/1952

Given ongoing litigation as to the validity of the Commonwealth's acquisition and the plaintiff's de facto possession and business use, and in the absence of strong evidence the public will be harmed, an interlocutory injunction must be granted to preserve the plaintiff’s reasonable use of the premises, including lift, carriage-way, and doors, until final determination or further order.

Parties
Plaintiff: McKay; Defendants: The Commonwealth of Australia and another
Jurisdiction
Australia
Judgment Date
15 October 1952
Procedural Posture
Application for Interlocutory Injunction / Interlocutory (motion for Injunction Prior to Final Hearing)
Outcome
Interlocutory injunction granted; continued until hearing or further order.
Legal Topics
Lands Acquisition, Injunctions, Possession of Land
Property Law Administrative Law Lands Acquisition Injunctions Possession of Land

Case Brief

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Parties

McKay

Plaintiff

The Commonwealth of Australia and another

Defendants

Procedural Posture

Application for Interlocutory Injunction / Interlocutory (motion for Injunction Prior to Final Hearing)

Legal Issues

  1. 1 Whether the Commonwealth of Australia is lawfully in possession of the premises, including the carriage-way, lift, and doors at 300 King Street.
  2. 2 Whether the defendants are entitled to prevent the plaintiff's use of the lift, doorways, and carriage-way.
  3. 3 Whether an interlocutory injunction should be granted to preserve the plaintiff's use of the premises pending determination of the litigation.

Ratio Decidendi

Given ongoing litigation as to the validity of the Commonwealth's acquisition and the plaintiff's de facto possession and business use, and in the absence of strong evidence the public will be harmed, an interlocutory injunction must be granted to preserve the plaintiff’s reasonable use of the premises, including lift, carriage-way, and doors, until final determination or further order.

Court Disposition

Interlocutory injunction granted; continued until hearing or further order.

Orders

  • Injunction restraining the Minister of State for the Interior, officers, servants and agents of the Commonwealth from interfering with the plaintiff, his servants, and customers in their reasonable use of the lift, cart dock, and specified doors for business purposes during customary hours.
  • Precise form of the order regarding hours and use of doorways/lifts to be agreed between counsel and approved by the Court.