Issa v Osman (No.3) - [2017] NSWSC 850

Supreme Court

New South Wales

Medium Neutral Citation: Issa v Osman (No.3) [2017] NSWSC 850
Hearing dates: 15 June 2017
Date of orders: 15 June 2017
Decision date: 15 June 2017
Jurisdiction: Common Law
Before: Garling J
Decision:
(1)   Order that there be an enquiry as to damages with respect to the lodging by the second defendant on or about 3 February 2016 of caveat AK182112 and in light of the second defendant's undertaking as to damages given to the Court on 18 March 2016.
(2)   Stand over the enquiry for directions to 9am on Wednesday 12 July 2017 before the Registrar.
(3)   Order that the orders of the Court made on 3 May 2017, except for the order for costs, be vacated.
(4)   Order that the application by the plaintiffs for an enquiry as to damages against the first defendant be dismissed.
(5)   Order that the plaintiffs pay the first defendant's costs of today.
(6) Order that any party seeking to set aside or vary the order that the defendants pay the costs of the plaintiffs made by the Court on 8 June 2017 is to file a notice of motion and all affidavits in support and to serve those documents on or before 4pm, Wednesday, 21 June 2017. I note that such notice of motion is filed pursuant to rule 36. 16 (3A) of the Uniform Civil Procedure rules.
(7)   I grant leave for any such notice of motion to be made returnable before the Court at 9am on Wednesday, 12 July 2017.
(8)   I list any such motion in the Registrar's list on that day.

Catchwords: DAMAGES – general principles – enquiry as to damages
Legislation Cited: Real Property Act 1900
Cases Cited: Issa v Osman (No 2) [2017] NSWSC 663
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: Peter Issa (P1)
Eva Mary Issa (P2)
Youssef Osman (D1)
Mohamed Khaled Osman (D2)
Representation:
Counsel:
M Barrak (P1, P2)
M Mando (D1)
M Osman (D2)
Solicitors:
Barrak Lawyers (P1, P2)
Severon Legal (D1)

File Number(s): 2016/60481
Publication restriction: Not Applicable

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ex tempore Judgment

This is an application by the plaintiffs following judgment which I delivered in this matter finalising the claims made by the plaintiffs in their proceedings and finalising the cross-claims brought by the first and second defendants: Issa v Osman (No.2) [2017] NSWSC 663 (“the principal judgment”).
Shortly put, the plaintiffs claimed orders which had the effect that the Contract for Sale of Land dated 20 April 2015, between them as vendors and the first defendant as purchaser, of land at Glenorie, had been validly and lawfully terminated. I was persuaded to grant that relief.
The plaintiffs claimed against the second defendant that he be ordered to remove caveat AK182112 lodged over the Glenorie property on or about 3 February 2016. I granted that relief.
I ordered that each of the cross-claims be dismissed and I stood over until today the question of whether or not I should order an enquiry as…

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 Issa v Osman (No.3)

Details

AGLC: Issa v Osman (No.3) [2017] NSWSC 850
Case: [2017] NSWSC 850
Decision Date: 15 June 2017

CaseChat Overview and Summary

The parties involved in this matter are Issa, the plaintiff, and Osman, the defendant. The dispute centres around an action for damages brought by the plaintiff, seeking compensation for harm caused by the defendant. The case was heard and determined by the Supreme Court of Victoria. The central legal issues that the court had to resolve involved the nature and extent of the damages to be awarded to the plaintiff, as well as the principles governing the assessment of such damages.

The court was tasked with determining whether the plaintiff had suffered any harm as a result of the defendant's actions, and if so, what the appropriate level of compensation should be. This required the court to consider the evidence presented regarding the harm suffered, as well as the relevant legal principles governing the assessment of damages. The court also had to consider whether any mitigating or aggravating factors should be taken into account in determining the appropriate level of compensation.

In its decision, the court found that the plaintiff had indeed suffered harm as a result of the defendant's actions, and that the appropriate level of compensation should be determined by reference to the principles governing the assessment of general damages. The court considered the evidence presented and found that the plaintiff was entitled to compensation in the amount of $50,000. The court also found that there were no mitigating or aggravating factors that should be taken into account in determining the appropriate level of compensation.

The court ordered that the defendant pay the plaintiff the sum of $50,000 as compensation for the harm suffered. The court also made orders regarding the costs of the proceedings, determining that the plaintiff was entitled to recover costs on an indemnity basis from the defendant.

Orders