Omar v Darul-Iman (WA) Inc - [2013] WASC 311

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: OMAR -v- DARUL-IMAN (WA) INC [2013] WASC 311

CORAM: PRITCHARD J

HEARD: 9 APRIL 2013 & 10 JUNE 2013

DELIVERED : 20 AUGUST 2013

FILE NO/S: CIV 1081 of 2012

BETWEEN: ABDUL SULAIMAN BIN OMAR
Plaintiff
AND
DARUL-IMAN (WA) INC
First Defendant
IMTIAZ AHMED
Second Defendant
FAYYAZ AHMAD RAJA
Third Defendant
MAIMUNAH SAIRI
Fourth Defendant
SHERIAFAH S AZAH ALJUNIED
Fifth Defendant
SITI ARIFF
Sixth Defendant
BABY CANCERINA MIRANTHY
Seventh Defendant
AZIZ KHAN
Eighth Defendant
SYED ALJUNIED
Ninth Defendant
KAMALRULZAMAN Z OMAR
Tenth Defendant
AHSAN AHMED ANIS
Eleventh Defendant
ANTON ALEXANDER
Twelfth Defendant
RIZWAN ANIS
Thirteenth Defendant
OMER ADBELLA CHEWAI
Fourteenth Defendant
TANEER CHAUDRY
Fifteenth Defendant
ABDUL KHALIQ
Sixteenth Defendant
WAJAHAT ARIF
Seventeenth Defendant
CHAUDRHY MUDDASSAR MEHMOOD
Eighteenth Defendant
KHAMZAH ARIP
Nineteenth Defendant
FAISAL MUHAMMAD
Twentieth Defendant
SHAUKAT HAYAT
Twenty-first Defendant
MAHMOOD AHMAD
Twenty-second Defendant
MUHAMMAD RASHID MEHMOOD
Twenty-third Defendant
ABBASALI ZUBERALI
Twenty-fourth Defendant
NAIM SAID
Twenty-fifth Defendant
AHMAD REDZWAN HASSAN
Twenty-sixth Defendant
MOHAMED SALEEM BIN MOHAMED SHARIF
Twenty-seventh Defendant
ABDULLAH AHMAD SAAID
Twenty-eighth Defendant
FAZIDIN AMIR
Twenty-ninth Defendant
AZIM AHMAD RAJAH
Thirtieth Defendant
MAQSOOD AHMED
Thirty-first Defendant
PERVEZ IQBAL CHEEMA
Thirty-second Defendant
HERMAN AIDIL BOLDEN
Thirty-third Defendant
MOHD AMIRUL SAAID
Thirty-fourth Defendant
ISMAIL DARDAH
Thirty-fifth Defendant
MUHAMMAD ALI FAYYAZ
Thirty-sixth Defendant
OMAR RAISUL AS-SALAM SYAH
Thirty-seventh Defendant
PSAL LTD
Applicant

Catchwords:

Application for leave to intervene in the proceedings - Application to be joined as a party pursuant to Order 18 rule 6(2) of the Rules of the Supreme Court 1971 (WA) - Application to vary injunction - Terms of the injunction

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application to vary the injunction be granted in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr S K Shepherd & Mr R G S Harrison
First Defendant                  :     No appearance
Second Defendant              :     No appearance
Third Defendant                 :     In person
Fourth Defendant               :     No appearance
Fifth Defendant                  :     No appearance
Sixth Defendant                 :     No appearance
Seventh Defendant             :     No appearance
Eighth Defendant               :     No appearance
Ninth Defendant                 :     No appearance
Tenth Defendant                 :     No appearance
Eleventh Defendant            :     No appearance
Twelfth Defendant              :     No appearance
Thirteenth Defendant          :     No appearance
Fourteenth Defendant         :     No appearance
Fifteenth Defendant            :     No appearance
Sixteenth Defendant           :     No appearance
Seventeenth Defendant       :     No appearance
Eighteenth Defendant         :     No appearance
Nineteenth Defendant         :     No appearance
Twentieth Defendant          :     No appearance
Twenty-first Defendant       :     No appearance
Twenty-second Defendant   :     No appearance
Twenty-third Defendant      :     No appearance
Twenty-fourth Defendant     :     No appearance
Twenty-fifth Defendant      :     No appearance
Twenty-sixth Defendant     :     No appearance
Twenty-seventh Defendant :     No appearance
Twenty-eighth Defendant    :     No appearance
Twenty-ninth Defendant     :     No appearance
Thirtieth Defendant            :     No appearance
Thirty-first Defendant         :     No appearance
Thirty-second Defendant     :     No appearance
Thirty-third Defendant        :     No appearance
Thirty-fourth Defendant      :     No appearance
Thirty-fifth Defendant        :     No appearance
Thirty-sixth Defendant       :     No appearance
Thirty-seventh Defendant    :     No appearance
Applicant:     Mr S Vandongen

Solicitors:

Plaintiff:     Tottle Partners
First Defendant                  :     No appearance
Second Defendant              :     No appearance
Third Defendant                 :     In…

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.

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Details

Case: [2013] WASC 311
Decision Date: 20 AUGUST 2013

CaseChat Overview and Summary

In the case of Omar v Darul-Iman (WA) Inc, the applicant, Omar, sought leave to intervene in proceedings between the respondent, Darul-Iman (WA) Inc, and another party, PSAL Limited. The dispute centred around an injunction issued by the Supreme Court of Western Australia, which Omar was seeking to vary. The primary legal issues involved the interpretation of an undertaking given by Omar in relation to the injunction, the scope of the compensation that could be awarded under the undertaking, and the retrospective application of the undertaking to PSAL Limited.

The court was required to determine whether the undertaking, which explicitly referred to PSAL Limited, entitled that party to compensation in the event of an enforcement application. The court noted that the reference to a party in the undertaking did not automatically grant them the right to compensation, as the court has broad discretion in assessing damages or compensation under an undertaking. The court also considered whether the damages or compensation awarded should be limited to those that could have been foreseen at the time the injunction was granted, and whether the party seeking to enforce the undertaking could recover only the damages they sustained by reason of the injunction's grant.

The court found that the injunction should continue, with the condition that Omar provide an undertaking to pay compensation to any party and PSAL Limited as the court deemed just. The court rejected PSAL Limited's application for retrospective application of the undertaking, as the authorities established that an undertaking cannot be imposed upon a party, and thus could not be imposed retrospectively. Additionally, the court noted that if PSAL Limited had been successful in its application to be joined, the joinder would have operated prospectively only, and the injunction could not operate retrospectively to PSAL Limited's benefit.

The court ultimately decided that the undertaking should be extended to PSAL Limited from the date it was joined to the proceedings, and that Omar should be required to provide evidence of his ability to satisfy any claim under the undertaking. The final orders included the continuation of the injunction with the modified undertaking and the requirement for Omar to provide evidence of his financial capacity to satisfy any compensation awarded under the undertaking.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The fact that an undertaking expressly refers to a party does not necessarily mean that that party will be awarded compensation in the event that an application is made to enforce the undertaking. The Court has a wide discretion in the assessment of damages or compensation under an undertaking. The court will determine the damages or compensation which is just, having regard to all of the circumstances of the case. However, the party seeking to enforce the undertaking is entitled to recover only damages of a kind which could have been foreseen when the injunction was granted,[18] and damages which he or she has sustained by reason of the grant of the injunction. That party will bear the onus of showing that the damage sustained would not have been sustained but for the injunction.[19] The Court's wide discretion in the assessment of compensation includes the discretion not to enforce the undertaking at all, if special circumstances exist.[20] Those special circumstances may include the conduct of the parties who are the beneficiaries of the undertaking if that conduct would render it inequitable to enforce the undertaking.[21][18] Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249, 266 ‑ 267 (Aickin J); European Bank Ltd v Evans (2010) 240 CLR 432, 442 (the Court).[19] Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249, 311 ‑ 312 (Gibbs J); Austal Ships Pty Ltd and Anor v National Australia Bank and Ors [1999] WASC 211 (Parker J).[20] McCleary v DPP (Cth) (1998) 20 WAR 288, 309 (Ipp J).[21] Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249, 311 ‑ 312 (Gibbs J), F Hoffman‑La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295, 361 (Lord Diplock); McCleary v DPP (Cth) (1998) 20 WAR 288, 309 (Ipp J); Lewandowski v Lovell (1994) 11 WAR 124, 156 (Murray J; Kennedy J agreeing, 128; White J agreeing, 158). In my view, the injunction should be continued, provided that Mr Omar provides an undertaking in the usual terms, but modified to provide that Mr Omar will pay to any party and to PSAL Limited such compensation as the court considers to be just. Two issues remain for consideration: the date from which the undertaking should be extended to PSAL, and whether Mr Omar should be required to provide evidence of his ability to satisfy any claim under the undertaking. PSAL seeks not only that the undertaking apply to it, but that it apply retrospectively, to the date when the injunction was first granted by K Martin J. In my view, that part of its application should be rejected, for two reasons. First, the authorities establish that a party seeking an injunction cannot be compelled to provide an undertaking, although the Court may order that an injunction should be granted only if an undertaking is given. In that sense, the undertaking is the 'price' to be paid for the grant of an injunction. Because an undertaking cannot be imposed upon a party, it cannot be imposed retrospectively.[22] In addition, I note that if PSAL had been successful in its application to be joined, that joinder would have operated prospectively only.[23] In that case, the injunction could not operate, retrospectively, to PSAL's benefit. [22] Indoor Holdings v Bennett [2010] WASC 242 [37] ‑ [40] (Le Miere J), citing Smith Kline Beecham Plc v Apotex Europe Ltd [2006] 1 WLR 872 [38] ‑ [41] (Lewison J); Smith Kline Beecham Plc v Apotex [2007] Ch 71 [24] (Jacob LJ, Moore-Bick LJ & Sir Andrew Morritt C agreeing); Smith Kline and French Laboratories (Australia) Ltd v Secretary Department of Community Services and Health (1989) 89 ALR 366.[23] Rules of the Supreme Court 1971 (WA) O 18 r 6(2).