Lawindi v Elkateb [2000] NSWSC 695

New South Wales Supreme Court

CITATION : Lawindi v Elkateb [2000] NSWSC 695 revised - 20/07/2000 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4479/99 HEARING DATE(S) : 03/07/00, 10/07/00 JUDGMENT DATE : 10 July 2000

PARTIES : Wasfy Lawindi (Plaintiff) Mohamet Safwat Elkateb (Defendant) JUDGMENT OF : Santow J

COUNSEL : J Cheney (Solicitor) (Plaintiff) Dr M S Elkateb in person (Defendant) SOLICITORS : Turner Freeman (Plaintiff) CATCHWORDS : PROCEDURE — Injunctive orders of Mareva kind with undertaking as to damages — Was undertaking activated by hold up in settlement where defendant could have avoided that hold up by procuring the confirmation reasonably requested by plaintiff regarding agent's commission — Causality. DECISION : No money payable under the damages undertaking.

REVISED — 20 July, 2000

IN THE SUPREME COURT OF NEW SOUTH WALES IN EQUITY

SANTOW J

No. 4479/99 WASFY LAWINDI Plaintiff MOHAMET SAFWAT ELKATEB Defendant

JUDGMENT — ex tempore 10 July 2000

1 The Defendant in these proceedings appears in person and moves upon a Notice of Motion in the following terms: "1. An order that the Plaintiff pay the defendant $2898.53, being damages pursuant to an undertaking given to the Court 2. An order that the Mareva injunction does not prevent the Defendant from expending monies on his current legal proceedings."

2 Taking first paragraph 1, the basis for the Defendant's application is set out in very broad terms in an affidavit of 6 July 2000 from Dr Elkateb. Essentially, his case is this. 3 He as Defendant claims $2,893.53 under the undertaking as to damages required of the Plaintiff. This was in order for the Plaintiff to obtain the orders that he did obtain from Bergin J on 29 October 1999 and which were subsequently extended and varied, culminating in Bergin J's orders of 29 November 1999. Those orders in broad terms were in effect Mareva orders restraining the Defendant from disposal of his assets including relevantly his property at 101/100 Cleveland Street, Chippendale. The orders of 29 November 1999 relevantly provide: "That the sale of the property 101/92-100 Cleveland Street Chippindale Title reference 101 SP 52634 proceed tomorrow 30 November 1999 on the basis that the settlement moneys to the amount of $16,910.44 be held in LJ Hooker's Trust account until 5 pm on 3.12.99 subject to the matter of the commission payment to J & Co Real Estate Agents being the subject of further submissions in this court at 10.00 am on Friday 3 December 1999 and subject also to any application to be made in respect of any joinder of J & Co Real Estate to these proceedings. …… Formally extend the orders made on 29.10.99 orders 1, 2, 3, 5, 6, 7 and 9 subject to the hearing in this matter before me on Friday and subject to any application being made by either party by application pursuant to the order made granting liberty to the parties to approach the Court."