Stolfa v Owners Strata Plan No. 4366 - [2011] NSWSC 1473

Supreme Court

New South Wales

Medium Neutral Citation: Stolfa & Anor v Owners Strata Plan No. 4366 & Ors [2011] NSWSC 1473
Hearing dates: Friday 25 November 2011
Decision date: 25 November 2011
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Judgment for the third defendant against the plaintiffs for $22,827.
Dismiss the defendants' notice of motion to vary the judgment.
Second and third defendants to pay two-thirds of plaintiffs' costs of the inquiry into the plaintiffs' damages.

Catchwords: CONSEQUENTIAL ORDERS - Inquiry into damages - interlocutory injunctions restrain defendants from engaging in certain building works in strata block - plaintiff provides usual undertaking as to damages - final judgment does not continue interlocutory relief - third defendant contends suffered loss consequent upon interlocutory orders as unable to live in property - onus on party seeking to enforce undertaking to establish damage sustained but for injunction - basis for sustaining injunction after certain date was removed - third defendant entitled to damages from such date.
PRACTICE AND PROCEDURE - Application by defendants to vary judgment - orders made that second and third defendants pay strata corporation fixed sum to repair common property - actual costs of repairs less than amount determined on inquiry - judgment for a fixed sum rather than order for indemnification given to minimise risk of vexation and inconvenience attendant upon indemnity - no basis to recall judgment.
Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 36.17
Cases Cited: Air Express Limited v Ansett Transport Industries (Operations) Proprietary Limited (1981) 146 CLR 249
Doherty v Liverpool District Hospital [1991] 22 NSWLR 284
Gilchrist v Estate of Late Taylor [2004] NSWCA 476
Newmont Yandal Operations Pty Ltd v J Aron Corporation and the Goldman Sachs Group Inc & Others [2007] 70 NSWLR 411
Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 589
Stolfa v Owners Strata Plan 4366 & ors [2010] NSWSC 1507
Category: Consequential orders
Parties: Veronica and Raffaele Stolfa (plaintiffs)
Owners Strata Plan 4366 (first defendant)
John Hempton and Joanna Kalowski (second defendants)
Stephen Hempton (third defendant)
Representation: Counsel:
M Ashurst SC (plaintiffs)
P Gray SC with P Koroknay (second and third defendants)
Solicitors:
W G McNally Jones Staff (plaintiffs)
David Le Page (second and third defendants)

File Number(s): 2007/256199

Judgment (ex tempore)

HIS HONOUR: On 27 August 2007 Gzell J, upon the plaintiffs giving the usual undertaking as to damages, made orders as follows:

1. The second and third defendants, whether by themselves, servants or agents, be restrained from carrying out any further renovation and/or construction work on common property of the first defendant, specifically:

a. In the cavity area excavated beneath the porch of Unit 1 and the old stairs, where a concrete slab has been poured.

b. The proposed brick wall on patio area of Unit 3.

2. Until 4 pm on 18 September 2007, the second and third defendants, whether by themselves, servants or agents, be restrained from any renovation and construction work which incorporates common property of the first…

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 Stolfa v Owners Strata Plan No. 4366

Details

AGLC: Stolfa v Owners Strata Plan No. 4366 [2011] NSWSC 1473
Case: [2011] NSWSC 1473
Decision Date: 25 November 2011

CaseChat Overview and Summary

In the case of Stolfa v Owners Strata Plan No. 4366, the plaintiff sought relief against the defendants to prevent them from carrying out certain building works within a strata block. The dispute centred around interlocutory injunctions which restrained the defendants from engaging in the building works. The plaintiff provided the usual undertaking as to damages, but the final judgment did not continue the interlocutory relief. The third defendant argued that they had suffered loss due to the interlocutory orders, as they were unable to live in their property. The court had to determine if the third defendant was entitled to damages from a specific date, given that the basis for sustaining the injunction after that date had been removed.

The primary legal issue before the court was whether the third defendant could establish that they had sustained damage but for the injunction. The court had to consider the position that the onus was on the party seeking to enforce the undertaking to establish the damage sustained. Furthermore, the court had to assess if the third defendant was entitled to damages from a certain date, considering that the basis for sustaining the interlocutory relief had been removed.

In delivering its judgment, the court found that the basis for sustaining the interlocutory relief after a certain date had been removed. Consequently, the third defendant was entitled to damages from that date. The court also addressed the defendants' application to vary the judgment, where they sought to have the orders that the second and third defendants pay a fixed sum to the strata corporation to repair the common property. The court found that no basis existed to recall the judgment, as the actual costs of repairs were less than the amount determined on inquiry. The court had ordered a fixed sum rather than an order for indemnification to minimise the risk of vexation and inconvenience attendant upon indemnity.

The final orders of the court were that the third defendant was entitled to damages from a certain date, and the application to vary the judgment was dismissed. The court did not find any basis to recall the judgment, and the orders for the second and third defendants to pay a fixed sum to the strata corporation to repair the common property remained in place.

Orders