An Interlocutory Injunction is an equitable remedy designed to maintain the current situation by stopping one party from carrying out, repeating, or continuing a wrongful act before a trial occurs. These injunctions
- guarantee that funds remain in a bank account,
- prevent the sale of assets or
- restrain the other party from taking specific actions.
Essentially, they represent a minor action within a broader legal claim, providing a temporary solution that may become permanent if the applicant prevails in the overarching claim.
Interlocutory Injunctions are typically pursued when there is a likelihood that a party involved in a dispute will take actions that would result in irreparable harm. The goal of Interlocutory Injunctions is to safeguard an applicant from damage that could not be sufficiently remedied through monetary compensation if the defendant were to proceed with their actions. They aim to protect identifiable legal or equitable rights that may be enforced if the applicant succeeds in a final judgment.
The guidelines to be followed when requesting an interlocutory injunction are well-established and widely accepted. The court needs to determine whether:
(a) there is a significant question that warrants a trial;
(b) without the injunction, the plaintiff will incur irreparable harm for which monetary damages would be insufficient and
(c) the balance of convenience supports the granting of the injunction.
Background
On January 17 2023, Roland Powell (RP) and Chad Wiese (the second defendant) jointly purchased 3 Godwit Court, Djugun, Broome (the Broome Property) for $741,000. The second defendant signed the offer to buy the property on November 26, 2022. Debra Oorschot (the first defendant) subsequently signed it on November 28, 2022, acting under a power of attorney for RP. The first defendant signed despite the plaintiff having previously asked her to consult him before making decisions on their father’s behalf.
The second defendant claims to have contributed $1,000 toward the property purchase and $17,365.34 for stamp duty, with the balance paid from an account under the first defendant’s name. Before this payment, on December 1 2022, a deposit from a joint bridging home loan account held by the first defendant, RP and Pamela Powell (PP), of approximately $975,000, including $600,000 transferred from PP’s account on her date of death (October 21 2022) and $1.3 million transferred from RP’s account in two instalments on the same date.
The first defendant testified that she signed the purchase offer at her father’s request. She noted that, before PP’s (her mother’s) death, an offer was made on a different Broome property on September 12 2022, with prior discussions indicating that RP and PP wanted to co-purchase a property with the second defendant for him to inherit via survivorship.
RP was diagnosed with cognitive decline, likely due to Alzheimer’s, at the time of the purchase of the Broome Property; the parties contest the extent of his cognitive deterioration and its impact on his decision-making. The first defendant contends that RP retained mental capacity until just days before his death, while the plaintiff disputes this claim.
Following the purchase, the second defendant paid various expenses and renovation costs totalling about $21,500, consistent with a written agreement between him and RP dated January 3 2023. This agreement stated that RP would receive rental income from the property. At the same time, the second defendant covered all expenses and renovations, with the arrangement lasting until their financial contributions were equal.
RP passed away on August 27 2023. RP named the plaintiff and first defendant as executors of the Will, with his assets divided between two testamentary trusts benefiting each sibling. Probate remains pending due to the plaintiff’s ongoing litigation against the first defendant (CIV 2403 of 2023). Similarly, PP named the plaintiff and first defendant as executors, dividing her estate into trusts for the same beneficiaries; probate in her case is also delayed due to related proceedings (CIV 2151 of 2024).
Following RP’s death, the second defendant was registered as the sole proprietor of the Broome Property on October 16, 2023. Subsequently, the second defendant sold the Broome property, with the sale settling on February 23, 2024. By agreement, the second defendant’s former solicitor held the sale proceeds in their trust account, which were later transferred to an interest-bearing trust account under an irrevocable undertaking by the second defendant.
Annexures to the plaintiff’s first affidavit reveal that the defendants deny any wrongdoing and also indicate pre-existing family tensions between the plaintiff and the rest of the family before RP and PP’s deaths.
Standing to apply
A primary issue at the hearing was whether the plaintiff had standing to apply for an interlocutory injunction, which the defence counsel argued was crucial to determining whether there was a serious question to be tried.
During the hearing, the plaintiff’s counsel argued that he had standing to bring claims “for the benefit of the estate.” which differed from his earlier written submission, which argued that the plaintiff had standing to bring claims “on behalf of both deceased estates.”
The basis of both submissions was:
- The plaintiff’s position is that of a named executor (alongside the first defendant) of both estates.
- A beneficiary of testamentary trusts created by RP and PP’s Wills.
- A beneficiary of both estates.
The initial question does not require the plaintiff to demonstrate that it is more likely than not that they will prevail at trial. It is enough for the plaintiff to establish that there is a reasonable chance of success that warrants maintaining the current situation until the trial occurs. The required probability level must be sufficient to… depend upon the nature of the rights asserted and the practical consequences likely to flow from the orders sought.
Balance of Convenience
Whether an applicant for an interlocutory injunction has made out a sufficient prima facie case and whether the balance of convenience favours granting such relief are related, but not independent, questions:
- The plaintiff’s delay in seeking relief may be a discretionary factor in favour of refusing an interlocutory injunction.
- The court’s power to grant an interlocutory injunction must be exercised by reference to the rights claimed in the proceedings; it is not to be exercised by ‘unconstrained notions of what appears to be just’.
Defendants
The defendants assert that the plaintiff is not entitled to the requested relief on three main arguments.
Firstly, they argue that, as a joint executor and beneficiary of the estates of RP and PP, the plaintiff lacks the standing to initiate these proceedings independently. An executor can only file claims after probate has been granted or by an administrator appointed under section 35 of the Administration Act 1903 (WA) (Administration Act).
Secondly, the second defendant contends that he holds indefeasible title to the Broome Property due to survivorship, asserting that the plaintiff has no right to the proceeds from its sale.
Lastly, the second defendant submits that the plaintiff has considerably delayed seeking court orders, which weighs against the approval of the relief requested.
Chose in action
The plaintiff’s claim concerning the Broome Property is a chose in action (”personal rights of property which can only be claimed or enforced by action, and not taking physical possession”) of the estates of RP and PP. As such, it is a claim that their estates properly make. Because there is no legal personal representative of these estates, no trustee has refused or is unwilling to take action concerning the claim.
Counsel for the plaintiff submitted that the defendant’s position prevented a beneficiary or one of the named executors from protecting the assets of a deceased estate while contested probate proceedings were on foot. Hill J disagreed.
The plaintiff is aware of the option to request orders under s35 of the Administration Act to advance his claims but has not pursued this since his application was adjourned in March 2024. The plaintiff argues that the lack of assets in RP’s estate suggests a neutral interim administrator would likely decline to pursue these claims. However, this does not prevent the plaintiff from applying under s35.
The decision
The Court’s role is to consider whether appointing an interim administrator benefits all parties. The plaintiff is free to apply for this role, and inaction by an appointed administrator could support the plaintiff’s pursuit of claims. However, the plaintiff’s claim regarding the Broome Property has a ‘fatal defect as to parties,’ leading to the conclusion that the plaintiff cannot bring a claim in his name for it, resulting in the denial of the request for an injunction. The Court considered other issues the plaintiff raised unnecessary to address in the application.
The Court rejected the plaintiff’s application for an interlocutory injunction because the plaintiff lacked standing to bring a claim regarding the Broome Property. The proceedings are to be suspended until the resolution of the contested probate proceedings or until the outcome of any request for the appointment of an administrator ad litem is determined. However, before issuing any directives, the Court will listen to the parties regarding the proper orders, including those related to costs.