Jackson v Richards - [2005] NSWSC 1295

CITATION:
Jackson v Richards [2005] NSWSC 1295

HEARING DATE(S): 5/12/05

JUDGMENT DATE :

13 December 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
Defendant entitled to $11,119 pursuant to undertaking as to damages plus costs of this application.

CATCHWORDS:
EQUITY [343]- Interlocutory injunction- Freezing of proceeds of sale- Injunction dissolved- Undertaking as to damages- Assessment of- Lost interest allowed whether or not claimant would have invested money- Extra damages may be awarded where other party has knowledge of claimant's circumstances and extra expenses are incurred as a result of deprivation of funds- Whether account may be taken of gain to other party at claimant's expense in addition to loss suffered by claimant.

CASES CITED:
Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249
Eyre v Woodfine (1582) Cro Eliz 278; 78 ER 533
Greenwood County v Duke Power 107 F (2d) 484 (1939)
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386
Palimport v Ziba Geigi (1975) 29(1) PD 592
Prehn v The Royal Bank of Liverpool (1870) LR 5 Ex 92
Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) 27 NSWLR 659
Rodger v Comptoir D'Escompte de Paris (1871) LR 3 PC 465

PARTIES:
Peter Alan Jackson and Gregory Hilliard Smith t/as Jackson Smith Solicitors (P)
Garry Noel Richards (D)

FILE NUMBER(S):
SC 4960/04

COUNSEL:
R Sofroniou (P)
Defendant in person

SOLICITORS:
Jackson Smith (P)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 13 December 2005

4960/04 – JACKSON v RICHARDS

JUDGMENT

1 HIS HONOUR: I am dealing with an application for damages consequent upon an undertaking to pay damages caused by the grant of an interlocutory injunction which has been dissolved. These matters are almost always dealt with by Associate Justices, but for some unexplained reason, this particular matter was allotted to me.

2 The background is that the defendant was in dispute with a Ms Rose and the court needed to deal with an application under the Property (Relationships) Act 1984 between the defendant and Ms Rose. The defendant retained solicitors Jackson Smith to represent him. The result of the case was that Master McLaughlin, as he then was, ordered that the defendant's house be sold, that 60% of the proceeds be paid to Ms Rose, and the balance to the defendant.

3 In September 2004, just before the proceeds of sale were due to be paid to the defendant, the solicitors approached Campbell J and obtained an injunction freezing the defendant's funds totalling $137,914.14, alleging that they had a fruits of litigation lien over the funds. They gave the usual undertaking as to damages.

4 The monies were placed in some controlled interest account and remained there until 8 July 2005 when White J dismissed the application for final injunction on the basis that the solicitors had no lien.

5 The solicitors asked the defendant how he would like the monies…

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 Jackson v Richards

Details

AGLC: Jackson v Richards [2005] NSWSC 1295
Case: [2005] NSWSC 1295
Decision Date: 13 December 2005

CaseChat Overview and Summary

Jackson and Richards were involved in a dispute before the court, which sought to resolve issues related to the freezing of proceeds from a sale and the assessment of damages. The case was heard in an Australian court, where the central legal issues involved the terms and conditions under which an interlocutory injunction could be dissolved and the extent to which damages could be assessed. The court was required to decide whether an undertaking regarding damages was sufficient, the circumstances under which lost interest could be allowed, and whether extra damages could be awarded when the other party had knowledge of the claimant's specific circumstances.

The court's reasoning focused on the interpretation and application of equity principles in the context of the injunction and damages. It determined that an undertaking regarding damages could dissolve an interlocutory injunction, provided it was sufficient. Regarding lost interest, the court allowed it regardless of whether the claimant would have invested the money. The court also concluded that extra damages could be awarded if the other party had knowledge of the claimant's circumstances and incurred additional expenses due to the deprivation of funds. Furthermore, the court considered whether the gain to the other party at the claimant's expense could be taken into account in addition to the loss suffered by the claimant.

The outcome of the case involved the dissolution of the interlocutory injunction based on the provided undertaking and the allowance of lost interest as part of the damages assessment. The court awarded extra damages considering the knowledge and resulting expenses of the other party. The final orders included the dissolution of the injunction upon the provision of an adequate undertaking, the inclusion of lost interest in the damages, and the award of extra damages based on the other party's knowledge and additional expenses incurred.

Orders