Omar v Darul-Iman (WA) Inc

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.