Aquatic Air Pty Limited v Siewert (No 3) [2016] NSWSC 525

Aquatic Air Pty Limited v Siewert (No 3) [2016] NSWSC 525

The Siewerts did not suffer loss by reason of breach of undertaking 4 because the claimed loss—reduction in funds available to satisfy their judgment—was not caused by the breach, as performance of the undertaking would not have improved Aquatic's ability to satisfy the judgment. Accordingly, the indemnity undertaking was not engaged and the Mandemar mortgage secured no liability.

Parties
Third Plaintiff: Aquatic Air Pty Limited; Defendant/applicant: Dieter Siewert; Defendant/applicant: Liesolette Siewert; First Respondent: Ross Seller; Second Respondent: Susan Tankard
Jurisdiction
Australia
Judgment Date
28 April 2016
Procedural Posture
Notice of Motion / Ruling on Post Trial Enforcement Application
Outcome
Notice of Motion dismissed with costs
Legal Topics
Enforcement of Undertakings, Compensation for Breach of Undertaking, Security for Indemnity, Judicial Sale of Property
Civil Procedure Enforcement of Undertakings Compensation for Breach of Undertaking Security for Indemnity Judicial Sale of Property

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Parties

Aquatic Air Pty Limited

Third Plaintiff

Dieter Siewert

Defendant/applicant

Liesolette Siewert

Defendant/applicant

Ross Seller

First Respondent

Susan Tankard

Second Respondent

Procedural Posture

Notice of Motion / Ruling on Post Trial Enforcement Application

Legal Issues

  1. 1 Whether loss was caused by breach of undertaking 4 of the 25 June 2012 orders
  2. 2 Whether indemnity undertaking by Mr Seller is engaged
  3. 3 Whether Mandemar mortgage secures any liability

Ratio Decidendi

The Siewerts did not suffer loss by reason of breach of undertaking 4 because the claimed loss—reduction in funds available to satisfy their judgment—was not caused by the breach, as performance of the undertaking would not have improved Aquatic's ability to satisfy the judgment. Accordingly, the indemnity undertaking was not engaged and the Mandemar mortgage secured no liability.

Court Disposition

Notice of Motion dismissed with costs

Orders

  • The defendants' motion filed on 7 March 2016 and amended on 21 March 2016 is dismissed with costs.
  • The defendants execute and deliver to Ms Tankard a discharge of the Mandemar mortgage.