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

Supreme Court New South Wales

Medium Neutral Citation: Stolfa & Anor v Owners Strata Plan No. 4366 & Ors [2011] NSWSC 1473 Hearing dates: Friday 25 November 2011 Decision date: 25 November 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Judgment for the third defendant against the plaintiffs for $22,827. Dismiss the defendants' notice of motion to vary the judgment. Second and third defendants to pay two-thirds of plaintiffs' costs of the inquiry into the plaintiffs' damages. Catchwords: CONSEQUENTIAL ORDERS - Inquiry into damages - interlocutory injunctions restrain defendants from engaging in certain building works in strata block - plaintiff provides usual undertaking as to damages - final judgment does not continue interlocutory relief - third defendant contends suffered loss consequent upon interlocutory orders as unable to live in property - onus on party seeking to enforce undertaking to establish damage sustained but for injunction - basis for sustaining injunction after certain date was removed - third defendant entitled to damages from such date. PRACTICE AND PROCEDURE - Application by defendants to vary judgment - orders made that second and third defendants pay strata corporation fixed sum to repair common property - actual costs of repairs less than amount determined on inquiry - judgment for a fixed sum rather than order for indemnification given to minimise risk of vexation and inconvenience attendant upon indemnity - no basis to recall judgment. Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 36.17 Cases Cited: Air Express Limited v Ansett Transport Industries (Operations) Proprietary Limited (1981) 146 CLR 249 Doherty v Liverpool District Hospital [1991] 22 NSWLR 284 Gilchrist v Estate of Late Taylor [2004] NSWCA 476 Newmont Yandal Operations Pty Ltd v J Aron Corporation and the Goldman Sachs Group Inc & Others [2007] 70 NSWLR 411 Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 589 Stolfa v Owners Strata Plan 4366 & ors [2010] NSWSC 1507 Category: Consequential orders Parties: Veronica and Raffaele Stolfa (plaintiffs) Owners Strata Plan 4366 (first defendant) John Hempton and Joanna Kalowski (second defendants) Stephen Hempton (third defendant) Representation: Counsel: M Ashurst SC (plaintiffs) P Gray SC with P Koroknay (second and third defendants) Solicitors: W G McNally Jones Staff (plaintiffs) David Le Page (second and third defendants) File Number(s): 2007/256199