OGH: Materiality threshold in case of potential immaterial damages

Mar 18, 2022 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of when the materiality threshold for an interim injunction under Section 381 number 2 second case of the Enforcement Order (EO) is overcome in the case of suspected immaterial damages.

The plaintiff and jeopardised party is the owner of a property. Directly adjacent to it, the defendant and jeopardising party is carrying out construction work for the erection of a multi-apartment building. Due to the construction work, cracks and settling have formed on the plaintiff's property. The plaintiff sought an injunction and a restraining order, arguing that further irreparable damage was likely to occur as construction work progressed.

The court of first instance granted the application for an interim injunction. The Court of Appeal confirmed the decision, but did not accept that the damage caused would be irreparable. In addition, however, it must be considered obvious that the violation of the structural integrity can cause immaterial damages (e.g. annoyance, frustration, and feelings of anxiety), which reduce the plaintiff's quality of life.

However, the OGH agreed with the appellant - the defendant.

An interim injunction according to Sec. 381 no. 2 second case EO can be granted if it appears necessary to avert imminent irreparable damage. Irreparable damage is said to occur if the restitution of the damage is not feasible and monetary compensation could either not be paid or the payment of monetary compensation was not fully adequate. In the case of non-material damage, it was to be assumed that no adequate compensation could be made. In accordance with the defendant's appeal, the OGH also did not see what the plaintiff's irreparable damage was in concrete terms. Obvious facts are to be taken as a basis for a decision even if they have not been presented. In this regard, the OGH rejected the opinion of the Court of Appeal that the immaterial damages in the case at hand were obvious according to the findings. The elements of jeopardy were not specific enough for an interim injunction to be issued.

OGH 10 Ob 39/21i (25.01.2022)