Issa v Osman (No.3) [2017] NSWSC 850

Issa v Osman (No.3) [2017] NSWSC 850

An enquiry as to damages is appropriate where a caveat is maintained by court order on the basis of an undertaking as to damages and the caveat is subsequently found to be unjustified. However, a party defending a claim and bringing a cross-claim in court for their asserted proprietary interest is not liable for damages solely by reason of their participation in the litigation, absent specific wrongful conduct or an interlocutory restraint given by them.

Parties
Plaintiff: Peter Issa; Plaintiff: Eva Mary Issa; First Defendant: Youssef Osman; Second Defendant: Mohamed Khaled Osman
Jurisdiction
Australia
Judgment Date
15 June 2017
Procedural Posture
Application/enquiry as to Damages / Post Judgment Orders on Enquiry as to Damages
Outcome
Enquiry as to damages ordered against second defendant; application for enquiry as to damages against first defendant dismissed; various ancillary and costs orders made.
Legal Topics
Damages, Caveats, Undertaking as to Damages, Contract for Sale of Land
Common Law Property Law Damages Caveats Undertaking as to Damages Contract for Sale of Land

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Parties

Peter Issa

Plaintiff

Eva Mary Issa

Plaintiff

Youssef Osman

First Defendant

Mohamed Khaled Osman

Second Defendant

Procedural Posture

Application/enquiry as to Damages / Post Judgment Orders on Enquiry as to Damages

Legal Issues

  1. 1 Whether an enquiry as to damages should be ordered against the first and/or second defendant arising from the lodging of a caveat and subsequent litigation.

Ratio Decidendi

An enquiry as to damages is appropriate where a caveat is maintained by court order on the basis of an undertaking as to damages and the caveat is subsequently found to be unjustified. However, a party defending a claim and bringing a cross-claim in court for their asserted proprietary interest is not liable for damages solely by reason of their participation in the litigation, absent specific wrongful conduct or an interlocutory restraint given by them.

Court Disposition

Enquiry as to damages ordered against second defendant; application for enquiry as to damages against first defendant dismissed; various ancillary and costs orders made.

Orders

  • Order that there be an enquiry as to damages with respect to the lodging by the second defendant on or about 3 February 2016 of caveat AK182112 and in light of the second defendant's undertaking as to damages given to the Court on 18 March 2016.
  • Stand over the enquiry for directions to 9am on Wednesday 12 July 2017 before the Registrar.