Lan v Kaymet Corporation Pty Ltd [2017] NSWCA 52

Lan v Kaymet Corporation Pty Ltd [2017] NSWCA 52

The appeal was dismissed because the concessions before the primary Judge established that, but for the injunction, Kaymet would have leased the apartments and derived the agreed rental income, and would not have sold the apartments before the relevant date. The lost rent was caused by the injunction and was foreseeable, whereas the capital appreciation would have accrued to Kaymet whether or not the injunction had been granted. In those circumstances it was just and equitable to award the agreed lost rental without any set off for unrealised capital gains.

Jurisdiction
Australia
Judgment Date
28 March 2017
Procedural Posture
Appeal From Supreme Court of New South Wales, Equity Division, Decision Awarding Compensation Pursuant to an Undertaking as to Damages / Court of Appeal Judgment; Appeal Dismissed
Outcome
Appeal dismissed.
Legal Topics
['usual Undertaking as to Damages' 'interlocutory Injunction' 'assessment of Compensation' 'causation of Loss' 'set Off of Capital Gains Against Lost Rent' 'leave to Appeal']
['equity' 'civil Procedure' 'property Law'] ['usual Undertaking as to Damages' 'interlocutory Injunction' 'assessment of Compensation' 'causation of Loss' 'set Off of Capital Gains Against Lost Rent' 'leave to Appeal']

Case Brief

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Procedural Posture

Appeal From Supreme Court of New South Wales, Equity Division, Decision Awarding Compensation Pursuant to an Undertaking as to Damages / Court of Appeal Judgment; Appeal Dismissed

Legal Issues

  1. 1 ['Whether compensation payable under the usual undertaking as to damages for lost rental should be reduced by unrealised capital gains in the value of strata units during the period of an interlocutory injunction.' 'Whether, to the extent necessary, leave to appeal should be granted where individual judgments were below $100,000 but the total judgments considerably exceeded $100,000.']

Ratio Decidendi

The appeal was dismissed because the concessions before the primary Judge established that, but for the injunction, Kaymet would have leased the apartments and derived the agreed rental income, and would not have sold the apartments before the relevant date. The lost rent was caused by the injunction and was foreseeable, whereas the capital appreciation would have accrued to Kaymet whether or not the injunction had been granted. In those circumstances it was just and equitable to award the agreed lost rental without any set off for unrealised capital gains.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal be dismissed.' "The appellants pay the respondents' costs of the appeal." 'To the extent necessary, leave to appeal granted.']