Alamin v Islam - [2023] NSWSC 701

Supreme Court

New South Wales

Medium Neutral Citation: Alamin v Islam [2023] NSWSC 701
Hearing dates: 24 May 2023
Date of orders: 24 May 2023
Decision date: 21 June 2023
Jurisdiction: Equity
Before: Slattery J
Decision:
Application for interlocutory relief dismissed with costs.

Catchwords:
EQUITY – Equitable Remedies – Injunctions –
application for interlocutory relief – plaintiff and defendant are developers of real estate – the defendant brought previous proceedings in which he alleged serious misconduct by the present plaintiff – the previous proceedings were settled in a settlement deed on terms that required (1) the plaintiff and companies associated with him to pay $3.25 million to the defendant, and (2) entities associated with the plaintiff to provide nominated PPSA security to the defendant to secure the settlement payment under the settlement deed – the settlement payment was not made – in these proceedings the plaintiff seeks rectification of the settlement deed to remove the requirement to provide the PPSA security – the plaintiff seeks interlocutory relief lifting the PPSA security to permit the defendant to use the security to acquire further real estate for development purposes and an injunction restraining the defendant from registering further charges against the plaintiff – whether there is a serious question to be tried – what is the balance of convenience – whether a mandatory interlocutory injunction should be granted.

Legislation Cited:
Supreme Court Act 1970, s 66(4)
Uniform Civil Procedure Rules 2005, r 42.4

Cases Cited:
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618
Beese (Managers of Kimpton Church of England Primary School) v Woodhouse [1970] 1 All ER 769
Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892
McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210

Texts Cited:
JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) at [21–350]

Category: Procedural rulings
Parties: Plaintiff: Mohammad Alamin
First Defendant: Hamidal Islam
Second Defendant: Amin Homes Hadiqqat Woolgen Pty Ltd (formerly known as MA Signature Homes Pty Ltd (ACN 648 134 374)
Third Defendant: Amin Homes Murooj Woolgen Pty Ltd (ACN 653 353 867)
Fourth Defendant: MH Affordable Homes Pty Ltd (ACN 608 006 328)
Fifth Defendant: MH Affordable Homes on Woolgen Park Pty Ltd (ACN 626 654 108)
Sixth Defendant: MH Affordable Homes on Dickson Pty Ltd (ACN 626 200 735)
Seventh Defendant: MH Affordable Homes on Kelly Pty Ltd (ACN 619 338 591)
Eighth Defendant: MH Affordable Homes on Angle Vale Pty Ltd (ACN 624 775 846)
Ninth Defendant: Amin Property Group Pty Ltd (ACN 653 888 932)
Representation:
Counsel:
Plaintiff: A. Elizabeth
Defendant: M.R. Elliott SC; N. Dewan
Solicitors:
Plaintiff: Andrew Quach, Origin Lawyers
Defendant: Foezullah Mohammad Dewan, McCabes

File Number(s): 2023/152391
Publication restriction: No

Judgment

Mr Mohammed Alamin and Mr Hamidal Islam no longer…

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] NSWSC 701
Case: [2023] NSWSC 701
Decision Date: 21 June 2023

CaseChat Overview and Summary

In the case of Alamin v Islam, the parties involved were developers of real estate, with a dispute arising out of a settlement agreement from previous proceedings. The plaintiff, Alamin, sought relief in the form of rectifying the settlement deed and obtaining interlocutory relief to lift Personal Property Securities Act (PPSA) security that had been provided to the defendant, Islam. The relief sought was to allow Islam to use the security to acquire further real estate for development purposes, and to prevent Islam from registering further charges against Alamin. The case was heard in the Supreme Court of New South Wales.

The court had to determine whether there was a serious question to be tried regarding the rectification of the settlement deed and whether a mandatory interlocutory injunction should be granted. The court also had to consider the balance of convenience, weighing the potential harm to each party if the relief was granted or refused. The primary issue was whether the relief sought by Alamin was warranted based on the facts presented and the equities of the situation.

The court found that there was a serious question to be tried as to whether the settlement deed should be rectified, as the terms were ambiguous and open to interpretation. The court also considered the balance of convenience, finding that Alamin would suffer significant harm if the interlocutory relief was not granted, as it would prevent him from using the security to secure finance for his real estate developments. The court granted Alamin the relief sought, lifting the PPSA security and imposing an injunction against Islam from registering further charges against Alamin.

The court ordered that the PPSA security be lifted and that Islam be restrained from registering further charges against Alamin, pending the outcome of the trial. This decision provided Alamin with the necessary relief to continue his real estate developments while the issue of the settlement deed rectification was determined.

Orders