Lahoud v Lahoud (No 2)

Case [2012] NSWCA 55

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Lahoud & Anor v Lahoud & Ors (No 2) [2012] NSWCA 55
Hearing dates:On the Papers
Decision date: 28 March 2012
Before: Handley AJA at 1, Sackville AJA at 38
Decision:

(1)Notice of motion of 19 December 2011 as amended dismissed;

(2)The Victor Lahoud interests are to pay the costs of the Joseph Lahoud interests of the motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE - judgments and orders - variation - reopening.
RES JUDICATA - cause of action estoppel order for specific performance - but not damages - later claim for damages barred.
Legislation Cited: Civil Procedure Act, s 100
Supreme Court Act, s 68(b)
Cases Cited: CG Maloney Pty Ltd v Noon [2011] NSWCA 397
Coulton v Holcombe [1986] HCA 33, 162 CLR 1
Dillon v Macdonald (1902) 21 NZLR 375
Henderson v Henderson (1843) 3 Hare 100
National Coal Board v Galley [1958] 1 WLR 16 CA, 26
Neylan v Dickens [1987] 1 NZLR 402
Rangayya Goundan v Nanjappa Rao (1901) LR 28 Ind App 221
Serrao v Noel (1885) 15 QBD 549 CA
University of Wollongong v Metwally [No 2] [1985] HCA 28, 59 ALJR 481
Category:Consequential orders
Parties: 1st Applicant - Victor Lahoud
2nd Applicant - Castle Constructions Pty Ltd
3rd Applicant - Solidare Pty Ltd
1st Respondent- Joseph Lahoud
2nd Respondent - Joseph Lahoud & Associates Pty Ltd
Representation: 1st, 2nd & 3rd Applicants - McLachlan Thorpe Partners
1st & 2nd Respondents - Varekers Lawyers
File Number(s):2007/255809
 Decision under appeal 
Citation:
[2010] NSWSC 1297
Date of Decision:
2010-12-14 00:00:00
Before:
Ward J
File Number(s):
2007/255809

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2009 the Victor Lahoud interests obtained orders for specific performance of the agreed procedure in a Deed of Settlement for the audit of the profits of the joint-venture with the Joseph Lahoud interests which should have been implemented in 2007. The audit, which was completed in 2010, entitled the Victor Lahoud interests to a substantial refund of the moneys paid in 2001 under the settlement of other proceedings. The primary Judge ordered pre-judgment interest under s 100 of the Civil Procedure Act from the commencement of the specific performance proceedings in 2007. On 19 December 2011 this Court held in Lahoud v Lahoud [2011] NSWCA 405 that the cause of action for the recovery of the overpayment did not accrue until the audit was completed in 2010 and pre-judgment interest could only be awarded from that date.

The Victor Lahoud interests applied to re-open the orders…

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Lahoud v Lahoud (No 2) [2012] NSWCA 55
Case
[2012] NSWCA 55
Decision Date

CaseChat Overview and Summary

In *Lahoud v Lahoud (No 2)*, the parties were the Victor Lahoud interests and the Joseph Lahoud interests. The dispute concerned an application by the Victor Lahoud interests to vary or set aside a previous court order. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the court had the power to reopen or vary a final order for specific performance that had already been entered, particularly in circumstances where a subsequent claim for damages arising from the same cause of action was sought. This raised questions about the doctrine of *res judicata* and the principles of cause of action estoppel in relation to final judgments.

The Court of Appeal dismissed the application, holding that the previous order for specific performance, having been entered, was final and binding. The court applied the principle of *res judicata*, specifically cause of action estoppel, to prevent the Victor Lahoud interests from pursuing a claim for damages that arose from the same cause of action already litigated and determined by the prior order. The court noted that the Uniform Civil Procedure Rules 2005 provide specific mechanisms and time limits for setting aside or varying judgments, which had not been met or were otherwise inapplicable to the present circumstances.

Consequently, the notice of motion filed by the Victor Lahoud interests was dismissed, and they were ordered to pay the costs of the Joseph Lahoud interests in relation to the motion.

Orders

Orders of the court

(1)Notice of motion of 19 December 2011 as amended dismissed;

(2)The Victor Lahoud interests are to pay the costs of the Joseph Lahoud interests of the motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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