Alamin v Islam [2023] NSWSC 701

Alamin v Islam [2023] NSWSC 701

Although the Court accepted for the purposes of the application that there was a serious question to be tried, the balance of convenience did not justify interlocutory relief. Mr Alamin was in continuing unexplained default of the settlement deed, had not shown that he lacked other sources to meet the $3.25 million obligation, sought to deprive Mr Islam of valuable security given by the deed, offered only an unsecured undertaking as to damages with opaque financial disclosure, and did not establish that Mr Islam had threatened further registrations. The relief sought would postpone or remove Mr Islam's valuable security in circumstances where the final rectification case was not...

Jurisdiction
Australia
Judgment Date
21 June 2023
Procedural Posture
Equity Proceedings Seeking Rectification of a Deed of Settlement and Release, With Interlocutory Injunctive Relief / Interlocutory Application
Outcome
Application for interlocutory relief dismissed with costs.
Legal Topics
['interlocutory Injunctions' 'rectification' 'common Mistake' 'balance of Convenience' 'settlement Deed' 'ppsr Charges' 'undertaking as to Damages' 'costs']
['equity' 'civil Procedure' 'personal Property Securities' 'contract Law'] ['interlocutory Injunctions' 'rectification' 'common Mistake' 'balance of Convenience' 'settlement Deed' 'ppsr Charges' 'undertaking as to Damages' 'costs']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Rectification of a Deed of Settlement and Release, With Interlocutory Injunctive Relief / Interlocutory Application

Legal Issues

  1. 1 ['Whether there was a serious question to be tried concerning rectification or severance of clause 7 of the settlement deed on the basis of common mistake.' "Whether the balance of convenience justified interlocutory relief removing Mr Islam's PPSR charge or charges pending final hearing." 'Whether an interlocutory injunction should restrain Mr Islam from registering further charges against Mr Alamin.' 'Whether costs of the failed interlocutory application should be ordered forthwith.']

Ratio Decidendi

Although the Court accepted for the purposes of the application that there was a serious question to be tried, the balance of convenience did not justify interlocutory relief. Mr Alamin was in continuing unexplained default of the settlement deed, had not shown that he lacked other sources to meet the $3.25 million obligation, sought to deprive Mr Islam of valuable security given by the deed, offered only an unsecured undertaking as to damages with opaque financial disclosure, and did not establish that Mr Islam had threatened further registrations. The relief sought would postpone or remove Mr Islam's valuable security in circumstances where the final rectification case was not...

Court Disposition

Application for interlocutory relief dismissed with costs.

Orders

  • ['The Court noted that it accepted there was a serious question to be tried for final relief but was not satisfied on the balance of convenience that interlocutory relief in prayers 4 and 5 should be granted.' 'The Court noted that it was not necessary to grant the plaintiff leave to amend his summons on this...