JKAM Investments Pty Ltd ACN 159 084 018 v Damien [2021] NSWSC 70

JKAM Investments Pty Ltd ACN 159 084 018 v Damien [2021] NSWSC 70

Plaintiff's claims for breach of the mortgage succeed as to indemnity for principal and certain costs, but fail as to the caveat and lease (quiet enjoyment) claims due to lack of causation and no breach established. Claims for misleading and deceptive conduct succeed regarding the defendant's nondisclosure of the Champion charge and the NAB forbearance deed, as plaintiff had a reasonable expectation of disclosure. Issue estoppel applies from prior judgments regarding knowledge of the Hotray mortgage. Directions made for quantification of damages and costs and the need for plaintiff to elect between inconsistent remedies.

Parties
Plaintiff/cross Defendant: JKAM Investments Pty Ltd ACN 159 084 018; Defendant/cross Claimant: Karl Damien
Jurisdiction
Australia
Judgment Date
19 February 2021
Procedural Posture
Principal Judgment / Post Trial, Liability and Directions for Damages Hearing
Outcome
Declaratory relief and directions. Breach of mortgage established for certain sums and costs; breach of lease and caveat allegations dismissed; misleading and deceptive conduct found in part; damages inquiry to proceed.
Legal Topics
Land Development Agreements, Breach of Contract, Mortgages, Misleading and Deceptive Conduct, Issue Estoppel
Contracts Equity Consumer Law Land Development Agreements Breach of Contract Mortgages Misleading and Deceptive Conduct Issue Estoppel

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Parties

JKAM Investments Pty Ltd ACN 159 084 018

Plaintiff/cross Defendant

Karl Damien

Defendant/cross Claimant

Procedural Posture

Principal Judgment / Post Trial, Liability and Directions for Damages Hearing

Legal Issues

  1. 1 Whether defendant breached lease and mortgage covenants, including quiet enjoyment and caveat provisions
  2. 2 Whether defendant engaged in misleading or deceptive conduct regarding property encumbrances and NAB forbearance deed
  3. 3 Whether issue estoppel arising from earlier proceedings barred claims or findings

Ratio Decidendi

Plaintiff's claims for breach of the mortgage succeed as to indemnity for principal and certain costs, but fail as to the caveat and lease (quiet enjoyment) claims due to lack of causation and no breach established. Claims for misleading and deceptive conduct succeed regarding the defendant's nondisclosure of the Champion charge and the NAB forbearance deed, as plaintiff had a reasonable expectation of disclosure. Issue estoppel applies from prior judgments regarding knowledge of the Hotray mortgage. Directions made for quantification of damages and costs and the need for plaintiff to elect between inconsistent remedies.

Court Disposition

Declaratory relief and directions. Breach of mortgage established for certain sums and costs; breach of lease and caveat allegations dismissed; misleading and deceptive conduct found in part; damages inquiry to proceed.

Orders

  • Declarations as to amounts secured under mortgage: $138,000, costs of these and priority proceedings, and costs ordered against plaintiff in priorities proceedings.
  • Directions for parties to agree costs, provide particulars and calculations, and prepare for damages inquiry.