Medium Neutral Citation: Alamin v Islam & Ors [2023] NSWCA 326
Hearing dates: 21 November 2023
Decision date: 20 December 2023
Before: White JA at [1];
Simpson AJA at [52]
Decision:
The summons seeking leave to appeal is dismissed with costs.

Catchwords:
APPEALS – Leave to appeal – Leave to appeal from costs orders following dismissal of application for mandatory interlocutory injunctive relief – Where parties entered into deed settling litigation in Equity Division – Where applicant covenanted to pay $3.25m to respondent in tranches – Where applicant charged shares in related company as security for payments due under deed – Where applicant subsequently sought rectification of deed and release of charge over shares or a declaration the deed was void ab initio by reason of mistake – Where mistake said to generate equity of rectification as to effect of granting charge on other financing arrangements between parties – Whether primary judge erred in refusing mandatory interlocutory injunctive relief against respondent – Whether applicant had identified question of principle of general importance or injustice or error going beyond one merely arguable – No issue of principle – Leave to appeal refused

Cases Cited:
Alamin v Islam [2023] NSWSC 701
Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
BE Financial Pty Ltd v Das [2012] NSWCA 164
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Carolan v AMR Bowling Pty Ltd [1995] NSWCA 69
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Commissioner of Stamp Duties (NSW) vCarlenka Pty Ltd (1995) 41 NSWLR 329
Films Rover International Ltd v Cannon Film Sales [1986] 3 All ER 772
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Mackenzie v Coulson (1869) LR 8 Eq 368
Pukallus v Cameron (1982) 180 CLR 447; [1982] HCA 63
Robert Whitton as Trustee in Bankruptcy Estate of Steven Leonard Watton v Watton [2018] NSWCA 277
Samsung Electronics Company Ltd v Apple Inc & Anor (2011) 217 FCR 238; [2011] FCAFC 156
The Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd (2001) 3 VR 526; [2001] VSCA 2

Category: Procedural rulings
Parties: Mohammad Alamin (Applicant)
Hamidal Islam (First Respondent)
Amin Homes Hadiqat Woolgen Pty Ltd (Second
Respondent)
Amin Homes Murooj Woolgen Pty Ltd (Third
Respondent)
MH Affordable Homes Pty Ltd (Fourth
Respondent)
MH Affordable Homes on Woolgen Park Pty Ltd (Fifth Respondent)
MH Affordable Homes on Dickson Pty Ltd (Sixth
Respondent)
MH Affordable Homes on Kelly Pty Ltd (Seventh
Respondent)
MH Affordable Homes on Angle Vale Pty Ltd (Eighth Respondent)
Amin Property Group Pty Ltd (Ninth
Respondent)
Representation:
Counsel:
T D Castle SC with A Elizabeth (Applicant)
M R Elliott SC with N Dewan (First Respondent)
Solicitors:
Origin Lawyers (Applicant)
McCabe Curwood (Respondents)

File Number(s): 2023/195827
Publication restriction: Nil
Decision under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alamin v Islam

Details

AGLC: Alamin v Islam [2023] NSWCA 326
Case: [2023] NSWCA 326
Decision Date: 20 December 2023

CaseChat Overview and Summary

The applicant, Alamin, sought leave to appeal from costs orders made by the primary judge following the dismissal of an application for mandatory interlocutory injunctive relief. The parties had previously entered into a deed settling litigation, under which the applicant covenanted to pay $3.25 million to the respondent in tranches, with shares in a related company charged as security. The applicant subsequently sought rectification of the deed and release of the charge, or a declaration that the deed was void ab initio due to a mistake alleged to have generated an equity of rectification concerning the effect of the charge on other financing arrangements.

The central legal issue before the Court of Appeal was whether the primary judge erred in refusing the interlocutory injunctive relief sought by the applicant. This required the court to consider whether the applicant had identified a question of principle of general importance, or an injustice, or an error going beyond one that was merely arguable, to justify granting leave to appeal from the costs orders.

The Court of Appeal found that there was no issue of principle of general importance raised by the applicant's case. The court determined that the applicant had not demonstrated that the primary judge's refusal of interlocutory injunctive relief involved an error that warranted appellate intervention, nor had it established a case of injustice or a question of general importance.

Consequently, the summons seeking leave to appeal was dismissed with costs.

Orders

Orders of the court

The summons seeking leave to appeal is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Alamin v Islam [2023] NSWCA 326

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Alamin v Islam
[2023] NSWSC 701 Para 1

…s made in the Equity Division following the dismissal of the applicant’s application for mandatory interlocutory injunctive relief ( Alamin v Islam [2023] NSWSC 701 (Slattery J)). The primary judge ordered that the applicant pay the respondent’s costs of the application on an indemnity basis and that the costs be a…
Robert Whitton as Trustee in Bankruptcy Estate of Steven Leonard Watton v Watton
[2018] NSWCA 277 Para 4

…the ground that the substantive order is not challenged (compare Robert Whitton as Trustee in Bankruptcy Estate of Steven Leonard Watton v Watton [2018] NSWCA 277 at [34]).…
Samsung Electronics Co Ltd v Apple Inc
[2013] FCAFC 138 Para 27

…similar to what he contended was an error committed by the Full Court of the Federal Court in Samsung Electronics Company Ltd v Apple Inc & Anor (2011) 217 FCR 238; [2011] FCAFC 156 at [62] where the Court said:…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das
[2012] NSWCA 164 Para 5

…inciple, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable ( BE Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[38]).…
Samsung Electronics Co Ltd v Apple Inc
[2011] FCAFC 156 Para 27

…contended was an error committed by the Full Court of the Federal Court in Samsung Electronics Company Ltd v Apple Inc & Anor (2011) 217 FCR 238; [2011] FCAFC 156 at [62] where the Court said:…
Australian Broadcasting Corporation v O'Neill
[2006] HCA 46 Para 30

…n does not raise a matter of principle warranting the grant of leave to appeal. In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46, Gummow and Hayne JJ at [65] approved the principle as formulated by Kitto, Taylor, Menzies and Owen JJ in Beecham Group Ltd v Bristol Laboratories Pty…
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
[2001] HCA 63 Para 21

…strength of the plaintiff’s claim to final relief ( Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 219, [18]; [2001] HCA 63). In the present case the balance of convenience and apparent strength of the plaintiff’s case were not to be considered in isolation, in deciding wher…
Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd
[2001] VSCA 2 Para 16

…n (1982) 180 CLR 447 at 449, 450, 453, 457; [1982] HCA 63; The Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd (2001) 3 VR 526; [2001] VSCA 2 at [14] (Tadgell JA) and [44] (Chernov JA)).…
Cable and Wireless Optus Ltd v Telstra Corp Ltd
[1998] FCA 1374 Para 20

…In Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, McLelland CJ in Eq said that, where a decision to grant or refuse an interlocutory injunction will, in a practical sense, determine the substance of the matter in issue, it will usually be desirable for the Court to evaluate the strength of the plaintiff…
Carolan v AMF Bowling Pty Ltd
[1995] NSWCA 69 Para 49

…but to what extent is not clear. The costs of an appeal on that issue may well exceed the costs inherent in the issue ( Carolan v AMR Bowling Pty Ltd [1995] NSWCA 69).…
Castlemaine Tooheys Ltd v South Australia
[1986] HCA 58 Para 25

…owing the approach to the granting or withholding of interlocutory injunctive relief stated by Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153:…
Pukallus v Cameron
[1982] HCA 63 Para 16

…eyond the principles of rectification as they are understood in this country ( Pukallus v Cameron (1982) 180 CLR 447 at 449, 450, 453, 457; [1982] HCA 63; The Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd (2001) 3 VR 526; [2001] VSCA 2 at [14] (Tadgell JA) and [44] (Chernov JA)).…
Beecham Group Ltd v Bristol Laboratories Pty ltd
[1968] HCA 1 Para 30

…and Hayne JJ at [65] approved the principle as formulated by Kitto, Taylor, Menzies and Owen JJ in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623 that there were two main inquiries:…
Kolback Securities Ltd v Epoch Mining NL
855 F Supp 294 Para 20

…In Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, McLelland CJ in Eq said that, where a decision to grant or refuse an interlocutory injunction will, in a practical sense, determine the substance of the matter in issue, it will usually be desirable for the Court to evaluate the strength of the plaintiff’s case for final relief.…

Legislation cited in this decision · 0

No legislation cited in this case.

Medium Neutral Citation:	Alamin v Islam & Ors [2023] NSWCA 326
Hearing dates:	21 November 2023
Decision date:	20 December 2023
Before:	White JA at [1]; Simpson AJA at [52]
Decision:	The summons seeking leave to appeal is dismissed with costs.
Catchwords:	APPEALS – Leave to appeal – Leave to appeal from costs orders following dismissal of application for mandatory interlocutory injunctive relief – Where parties entered into deed settling litigation in Equity Division – Where applicant covenanted to pay $3.25m to respondent in tranches – Where applicant charged shares in related company as security for payments due under deed – Where applicant subsequently sought rectification of deed and release of charge over shares or a declaration the deed was void ab initio by reason of mistake – Where mistake said to generate equity of rectification as to effect of granting charge on other financing arrangements between parties – Whether primary judge erred in refusing mandatory interlocutory injunctive relief against respondent – Whether applicant had identified question of principle of general importance or injustice or error going beyond one merely arguable – No issue of principle – Leave to appeal refused
Cases Cited:	Alamin v Islam [2023] NSWSC 701 Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 BE Financial Pty Ltd v Das [2012] NSWCA 164 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Carolan v AMR Bowling Pty Ltd [1995] NSWCA 69 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Commissioner of Stamp Duties (NSW) vCarlenka Pty Ltd (1995) 41 NSWLR 329 Films Rover International Ltd v Cannon Film Sales [1986] 3 All ER 772 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 Mackenzie v Coulson (1869) LR 8 Eq 368 Pukallus v Cameron (1982) 180 CLR 447; [1982] HCA 63 Robert Whitton as Trustee in Bankruptcy Estate of Steven Leonard Watton v Watton [2018] NSWCA 277 Samsung Electronics Company Ltd v Apple Inc & Anor (2011) 217 FCR 238; [2011] FCAFC 156 The Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd (2001) 3 VR 526; [2001] VSCA 2
Category:	Procedural rulings
Parties:	Mohammad Alamin (Applicant) Hamidal Islam (First Respondent) Amin Homes Hadiqat Woolgen Pty Ltd (Second Respondent) Amin Homes Murooj Woolgen Pty Ltd (Third Respondent) MH Affordable Homes Pty Ltd (Fourth Respondent) MH Affordable Homes on Woolgen Park Pty Ltd (Fifth Respondent) MH Affordable Homes on Dickson Pty Ltd (Sixth Respondent) MH Affordable Homes on Kelly Pty Ltd (Seventh Respondent) MH Affordable Homes on Angle Vale Pty Ltd (Eighth Respondent) Amin Property Group Pty Ltd (Ninth Respondent)
Representation:	Counsel: T D Castle SC with A Elizabeth (Applicant) M R Elliott SC with N Dewan (First Respondent) Solicitors: Origin Lawyers (Applicant) McCabe Curwood (Respondents)
File Number(s):	2023/195827
Publication restriction:	Nil
Decision under…