Nawal Azzi Khattar v Khattar Investments Pty Ltd [2018] NSWSC 905

Nawal Azzi Khattar v Khattar Investments Pty Ltd [2018] NSWSC 905

The plaintiff's evidence of an oral arrangement in return for guaranteeing a $5 million loan gave her a sufficient likelihood of success to justify consideration of interlocutory relief. The claimed right should not at this stage be characterised as a mere money claim, and there was a real risk that the defendant would use the disputed part of the John Street Project proceeds as security or funding for the Vaughan Street Project, potentially leaving any judgment unsatisfied. The balance of convenience therefore favoured an appropriately worded interlocutory injunction, subject to qualifications including leave to apply and the plaintiff giving the usual undertaking as to damages.

Jurisdiction
Australia
Judgment Date
21 June 2018
Procedural Posture
Application for Interlocutory Injunction / Interlocutory Notice of Motion Filed 8 May 2018
Outcome
Interlocutory injunction to be granted in favour of the plaintiff in appropriately worded terms, subject to qualifications and the plaintiff giving the usual undertaking as to damages.
Legal Topics
['interlocutory Injunction' 'balance of Convenience' 'prima Facie Case' 'discretionary Trust Distributions' 'oral Agreement' 'freezing Orders' 'equitable Charge' 'negative Stipulation']
['equity' 'real Property' 'trusts' 'contract'] ['interlocutory Injunction' 'balance of Convenience' 'prima Facie Case' 'discretionary Trust Distributions' 'oral Agreement' 'freezing Orders' 'equitable Charge' 'negative Stipulation']

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Procedural Posture

Application for Interlocutory Injunction / Interlocutory Notice of Motion Filed 8 May 2018

Legal Issues

  1. 1 ['Whether the plaintiff established a sufficient likelihood of success to justify interlocutory relief pending trial.' 'Whether the balance of convenience favoured restraining the defendant from dealing with the claimed share of the net proceeds of the John Street Project.' "Whether the plaintiff's claim was merely a money claim or involved rights capable of justifying preservation of a specific fund." 'Whether principles analogous to freezing orders supported interlocutory relief where the defendant intended to use the claimed proceeds as security or funding for another development project.']

Ratio Decidendi

The plaintiff's evidence of an oral arrangement in return for guaranteeing a $5 million loan gave her a sufficient likelihood of success to justify consideration of interlocutory relief. The claimed right should not at this stage be characterised as a mere money claim, and there was a real risk that the defendant would use the disputed part of the John Street Project proceeds as security or funding for the Vaughan Street Project, potentially leaving any judgment unsatisfied. The balance of convenience therefore favoured an appropriately worded interlocutory injunction, subject to qualifications including leave to apply and the plaintiff giving the usual undertaking as to damages.

Court Disposition

Interlocutory injunction to be granted in favour of the plaintiff in appropriately worded terms, subject to qualifications and the plaintiff giving the usual undertaking as to damages.

Orders

  • ["The defendant's existing undertaking not to further encumber its assets, other than to secure debts or obligations incurred for developing or selling the John Street Project, was to continue until the Court made orders disposing of the plaintiff's notice of motion filed 8 May 2018." 'The defendant was to be given...