The recent decision of the Supreme Court of Western Australia in Nu-Fortune Gold Ltd v Roxbury Trading Pty Ltd  WASC 307 is a timely reminder as to the factors that the court will consider when deciding whether to grant an interlocutory injunction.
By a writ of summons dated 1 August 2019, the plaintiffs Nu-Fortune Gold Ltd (Nu-Fortune) and Eco Minerals Research Ltd (Eco-Minerals) (Plaintiffs) commenced proceedings against first defendant Roxbury Trading Pty Ltd (Roxbury) and second defendant, a director of Roxbury, Mr Paul Kennedy. The Plaintiffs alleged that:
Nu-Fortune and Eco-Minerals seek an injunction restraining Roxbury and its director, Mr Kennedy, from entering upon the Menzies State Battery, and damages.
On 14 August 2019 Nu-Fortune and Eco-Minerals filed a summons for an urgent interim injunction. They sought an injunction until further order, to restrain Roxbury and Mr Kennedy from entering upon the two crown reserves, along with an order to deliver up possession of the reserves to the Plaintiffs. Further, the Plaintiffs also sought damages.
The key events which led to the writ being issued were as follows:
After the Plaintiffs had commenced the proceedings, the defendants later claimed that the Plaintiffs had also failed to pay rent for the Menzies State Battery as required by the sublease
Section 25(9) of the Supreme Court Act 1935 (WA) empowers the court to grant an interlocutory injunction in cases in which it appears to be just or convenient that the order be made. However, an injunction is a discretionary remedy, not a remedy at large.
As His Honour Justice Allanson noted, it is well established that when considering whether or not to grant an interlocutory injunction, the court will address itself to two main inquiries:
In relation to these inquiries, His Honour also re-affirmed the following principles:
In relation the first inquiry, the Plaintiff’s likelihood of success, his Honour relied upon the background facts mentioned above, to find that it was not reasonably arguable that the Notice of Dispute complied with section 81 of the PLA. This was because the letter itself expressly stated it was a dispute notice made under a clause in a separate Heads of Agreement (HOA) between the parties and was designed to invoke the dispute mechanism under the HOA.
Further, the Plaintiffs claimed that there was no obligation to pay the rent claimed if the sublease were properly constructed.
When interpreting the sublease, Allanson J relied on the well established principles of contractual construction, as well as the recent comments of Edelman J at  in Rinehart v Hancock Prospecting Pty Ltd; Rinehart v Rinehart  HCA 13, that “no meaningful words, whether in a contract, a statute, a will, a trust, or a conversation, are ever acontextual”, to find that on the evidence before him, that it was likely that the plaintiffs had no obligation to pay rent to the first defendant. However, he reserved his final decision on this point, and noted that the construction of the sublease could be influenced by further evidence yet to be discovered.
His Honour noted that in some cases the appropriate question on the balance of convenience will be whether damages would provide applicants with an adequate remedy. Whereas in other cases, it may be more appropriate to ask whether it is just in all the circumstances that the applicant should be confined to a remedy of damages. The guiding consideration remains what is necessary to do justice between the parties.
In this case his Honour granted the injunction on an interim basis (as the defendants had not yet had the opportunity to put on any evidence) on the basis that the balance of convenience favoured the preservation of the Plaintiffs’ position in circumstances where they:
This case is another example of the court’s approach when deciding whether to grant interlocutory injunctive relief and highlights the types of matters that the court will take into consideration when exercising its discretionary powers.
It also acts as a reminder for parties that when purporting to terminate a lease and exercise any right of re-entry:
Lavan’s Litigation and Dispute Resolution Team can assist you in choosing the most appropriate relief for your claim.
If you have a query or would like further information in relation to anything covered in this article, please do not hesitate to contact Cinzia Donald.