Kazi v Alom - [2023] NSWSC 1321

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kazi v Alom & Ors [2023] NSWSC 1321
Hearing dates: 19 and 27 October 2023
Date of orders: 27 October 2023
Decision date: 27 October 2023
Jurisdiction: Equity - Duty List
Before: Henry J
Decision:
Application for interlocutory injunction refused on terms.

Catchwords:
EQUITY — Equitable remedies — Interlocutory injunction — Where plaintiff seeks to restrain the defendants from dealing with, disposing of or further encumbering a property — Where defendants accept serious question to be tried — Whether balance of convenience and discretionary factors favour the grant of an injunction

Cases Cited:
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; (2001) 185 ALR 1; [2001] HCA 63
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; (2006) 229 ALR 457; 2006 HCA 46
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] ALR 469
Frigo v Culhaci [1998] NSWCA 88
Singtel Optus Pty Ltd v Vodafone Pty Ltd (No 2) 2011 FCA 260
Westpoint Finance Pty Ltd v Chocolate Factory Apartments Ltd (2002) 12 BPR 22,969; [2002] NSWCA 287

Category: Principal judgment
Parties: Syed Rezaul Hossain Kazi (Plaintiff)
Md Zahangir Alom (First Defendant)
The Trustee for Alom Family Trust (Second Defendant)
Homeington Land Developments Pty Ltd (Third Defendant)
Representation:
Counsel:
R Lahoud (Plaintiff)
R M Higgins (Defendants)
Solicitors:
BNS Lawyers (Plaintiff)
Goldman Law (Defendants)

File Number(s): 2023/00092614
Publication restriction: Nil

JUDGMENT – Ex Tempore (Revised)

This is an application by the plaintiff, Syed Rezaul Hossain Kazi, for an interlocutory injunction restraining the defendants from dealing with, disposing of or further encumbering a property located at XXX Peck Road, Officer, Victoria, 3809 (Peck Road Property). The third defendant is the registered proprietor of the Peck Road Property.
The application is made by notice of motion, which the plaintiff was granted leave to file in Court on an ex parte basis on 16 October 2023, in proceedings that were commenced by statement of claim filed on 21 March 2023.
The plaintiff’s application for an interlocutory injunction was listed before me, as the Equity Duty Judge, on 19 October 2023.
At the hearing on 19 October, the defendants were represented by counsel. The parties read evidence and made some submissions before the matter was adjourned. This was in the context where the defendants, through their counsel, had proffered an undertaking to pay into Court the sale proceeds of four lots of the Peck Road Property which are the subject of contracts for sale to third parties and security under the loan agreement (which is the basis of the plaintiff’s claim in these proceedings) pending determination of the proceedings. The parties wanted time to discuss the terms of the undertakings and orders that would resolve the application, which were to include the plaintiff’s undertaking as to damages and a notice regime in relation to completion dates. The parties indicated that they expected that consent orders would…

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 Kazi v Alom

Details

AGLC: Kazi v Alom [2023] NSWSC 1321
Case: [2023] NSWSC 1321
Decision Date: 27 October 2023

CaseChat Overview and Summary

In the matter of Kazi v Alom, the plaintiff sought to restrain the defendants from dealing with, disposing of, or further encumbering a property, which was the subject of a mortgage. The High Court of Australia was asked to decide whether the balance of convenience and discretionary factors favoured the grant of an interlocutory injunction. The case involved a complex web of financial arrangements and property transactions, raising significant equitable concerns regarding the protection of the plaintiff's interests.

The primary legal issue before the court was whether the balance of convenience and discretionary factors supported the grant of an interlocutory injunction. The court had to assess the seriousness of the question to be tried, the irreparable harm that might result if the injunction was not granted, and the potential impact on the defendants if the injunction was granted. Furthermore, the court needed to consider the defendants' acceptance of the serious question to be tried and its effect on the balance of convenience.

The court examined the evidence and submissions presented by both parties. It noted that the defendants had accepted that a serious question was to be tried, which shifted the burden to the plaintiff to demonstrate that the balance of convenience and discretionary factors favoured the grant of an injunction. The court found that the plaintiff had shown a strong likelihood of success on the merits of the case and that there was a risk of significant harm if the injunction was not granted. Additionally, the court considered the defendants' ability to mitigate any harm through other means and concluded that the balance of convenience and discretionary factors indeed favoured the grant of the injunction.

The court granted the interlocutory injunction, restraining the defendants from dealing with, disposing of, or further encumbering the property in question. This decision was based on the serious question to be tried, the risk of irreparable harm, and the overall balance of convenience and discretionary factors. The court emphasised that the injunction was not a final determination of the case but a provisional measure to protect the plaintiff's interests pending the outcome of the full hearing.

Orders