Nader v Ronca [2013] NSWSC 542

Supreme Court New South Wales

Medium Neutral Citation: Nader v Ronca [2013] NSWSC 542 Hearing dates: 8 May 2013 Decision date: 10 May 2013 Jurisdiction: Equity Division Before: Kunc J Decision: Notice of motion dismissed Catchwords: EQUITY - INJUNCTIONS - usual undertaking as to damages - plaintiff failed at trial - inquiry into damages - interest payments on mortgage - causation Legislation Cited: Real Property Act 1900 (NSW) Cases Cited: Air Express Limited v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 Chaplin v Hicks [1911] 2 KB 786 European Bank Limited v Evans (2010) 240 CLR 432; [2010] HCA 6 Hadley v Baxendale (1854) 9 Exch 341 [156 ER 145] Lee v Ross & Ors (No 2) (2003) 11 BPR 20,991; [2003] NSWSC 507 Moraitis Fresh Packaging (NSW) Pty Limited v Fresh Express Australia Pty Limited [2010] NSWSC 704 Schlesinger v Bedford (1893) 9 TLR 370 Smith v Day (1882) 21 ChD 421 Category: Principal judgment Parties: John Nader (Plaintiff) John Anthony Ronca (First Defendant) Concetta Maria Ronca (Second Defendant) Representation: Counsel: Mr A. T. Martin (Plaintiff) Mr R. W. Tregenza (Defendant) Solicitors: McAuley Hawach Lawyers (Plaintiff) Watson Stafford Zipkis (Defendant) File Number(s): 2011/260616 Publication restriction: Nil

Judgment

Summary 1This is an inquiry into damages to which the Defendants say they are entitled because the Plaintiff obtained the interlocutory extension of a caveat upon proffering the usual undertaking as to damages but ultimately failed at trial. 2The Plaintiff ("Mr Nader") contended that he had agreed with the Defendants ("Mr and Mrs Ronca") for them to sell him their Pendle Hill restaurant and the land on which it stood (the "Land") for $1,150,000. Mr Nader lodged a caveat over the Land relying upon the interest he said had been created by the alleged agreement (the "Caveat"). 3Mr & Mrs Ronca issued a lapsing notice. Mr Nader commenced these proceedings for specific performance of the alleged agreement. Upon Mr Nader giving the usual undertaking as to damages (the "Undertaking"), the Caveat was extended until the proceedings were determined. 4Justice Gzell ultimately found that no agreement had been entered into. His Honour refused Mr Nader's claim for specific performance, ordered him to pay Mr and Mrs Ronca's costs and discharged the Caveat. 5Mr and Mrs Ronca now claim compensation from Mr Nader in reliance on the Undertaking. That claim fails.