CLIFT v WINDRUM [1991] NSWCA 54

CLIFT v WINDRUM [1991] NSWCA 54

The Court found that the trial judge did not err in refusing the plaintiffs' (Clifts') application for an inquiry into damages. The unexplained delay in bringing the claim and the involvement of the Clifts as directors in the compromise and settlement of the company's claim, among other factors, justified exercising the court's discretion to refuse the inquiry. No satisfactory explanation for the delay or conduct was offered, and the policy behind the undertaking as to damages supports fairness, not permitting parties to split or delay claims to the respondent's detriment.

Parties
Appellant: George Clift; Appellant: Ronald Clift; Appellant: Peter Clift; Respondent: Dr Graham Melrose Windrum; Company (non Party to This Appeal): Rejilo Pty Ltd
Jurisdiction
Australia
Judgment Date
02 September 1991
Procedural Posture
Appeal / Judgment on Appeal From Refusal of Inquiry as to Damages; Interlocutory Order in Equity Division
Outcome
Appeal dismissed with costs.
Legal Topics
Injunctions, Undertaking as to Damages, Compensation for Third Parties, Discretion to Refuse Inquiry, Leave to Appeal Nunc Pro Tunc
Equity Civil Procedure Injunctions Undertaking as to Damages Compensation for Third Parties Discretion to Refuse Inquiry Leave to Appeal Nunc Pro Tunc

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Parties

George Clift

Appellant

Ronald Clift

Appellant

Peter Clift

Appellant

Dr Graham Melrose Windrum

Respondent

Rejilo Pty Ltd

Company (non Party to This Appeal)

Procedural Posture

Appeal / Judgment on Appeal From Refusal of Inquiry as to Damages; Interlocutory Order in Equity Division

Legal Issues

  1. 1 Whether the Supreme Court should refuse an inquiry as to damages suffered by third parties (the Clifts) as a result of an interlocutory injunction due to delay and/or other equitable considerations.
  2. 2 Whether leave to appeal is required and should be granted nunc pro tunc in these circumstances.

Ratio Decidendi

The Court found that the trial judge did not err in refusing the plaintiffs' (Clifts') application for an inquiry into damages. The unexplained delay in bringing the claim and the involvement of the Clifts as directors in the compromise and settlement of the company's claim, among other factors, justified exercising the court's discretion to refuse the inquiry. No satisfactory explanation for the delay or conduct was offered, and the policy behind the undertaking as to damages supports fairness, not permitting parties to split or delay claims to the respondent's detriment.

Court Disposition

Appeal dismissed with costs.

Orders

  • Leave to appeal granted nunc pro tunc if necessary.
  • Appeal dismissed with costs.