Stolfa v Owners Strata Plan No. 4366

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.