Stolfa & Anor v Owners Strata Plan No. 4366 & Ors [2011] NSWSC 1473

Stolfa & Anor v Owners Strata Plan No. 4366 & Ors [2011] NSWSC 1473

The third defendant was entitled to damages under the undertaking as to damages only for the period after 1 March 2009, when the justification for the injunction had fallen away, to 22 October 2009, as prior to that date, the injunction was justified and/or actual occupancy was not possible. The court declined to vary the fixed-sum judgment for repairs, as the fixed sum reflected consideration of risk and was deliberately chosen over indemnity, and the risk of over/under recovery attaches to both parties once judgment is entered.

Jurisdiction
Australia
Judgment Date
25 November 2011
Procedural Posture
Consequential Orders Arising From Equity Proceedings / Post Trial, on Inquiry Into Damages; Motion to Vary Judgment
Outcome
Third defendant's damages claim allowed in part; defendants' motion to vary judgment dismissed; costs apportioned two-thirds in favour of plaintiffs for inquiry into damages.
Legal Topics
['consequential Orders' 'interlocutory Injunctions' 'undertaking as to Damages' 'building Disputes' 'costs']
['equity' 'practice and Procedure'] ['consequential Orders' 'interlocutory Injunctions' 'undertaking as to Damages' 'building Disputes' 'costs']

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Procedural Posture

Consequential Orders Arising From Equity Proceedings / Post Trial, on Inquiry Into Damages; Motion to Vary Judgment

Legal Issues

  1. 1 ['Whether third defendant suffered compensable loss as a result of interlocutory injunctions and is entitled to damages under the plaintiffs’ undertaking as to damages' 'Whether the court should vary final judgment/orders to reflect actual costs incurred versus fixed sum ordered' 'Appropriate costs orders given parties’ partial success and failure']

Ratio Decidendi

The third defendant was entitled to damages under the undertaking as to damages only for the period after 1 March 2009, when the justification for the injunction had fallen away, to 22 October 2009, as prior to that date, the injunction was justified and/or actual occupancy was not possible. The court declined to vary the fixed-sum judgment for repairs, as the fixed sum reflected consideration of risk and was deliberately chosen over indemnity, and the risk of over/under recovery attaches to both parties once judgment is entered.

Court Disposition

Third defendant's damages claim allowed in part; defendants' motion to vary judgment dismissed; costs apportioned two-thirds in favour of plaintiffs for inquiry into damages.

Orders

  • ['Judgment for the third defendant against the plaintiffs for $22,827.' "Plaintiffs to pay the third defendant's costs of the motion for the inquiry in respect of the third defendant's damages under the plaintiffs' undertaking as to damages." "Defendants' notice of motion to vary the judgment dismissed with costs."...