5 Ridge Pty Limited v Tryname Pty Limited - [2016] NSWSC 951

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: 5 Ridge Pty Limited v Tryname Pty Limited [2016] NSWSC 951
Hearing dates: On the papers
Date of orders: 07 July 2016
Decision date: 07 July 2016
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiff ordered to pay the defendant’s costs of and incidental to the application listed on 15 April 2016.

Catchwords: COSTS – application for freezing order withdrawn by plaintiff – withdrawal followed receipt of information from defendant – whether information contained misrepresentations concerning defendant’s financial position – whether application would have succeeded if pursued
Category: Costs
Parties: 5 Ridge Pty Limited (Plaintiff)
Tryname Pty Limited (Defendant)
Representation:
Counsel:
Mr B Phillips (Plaintiff)
Mr D D Knoll; Mr M A Friedgut (Defendant)
Solicitors:
Deutsch Partners (Plaintiff)
Konstan Lawyers (Defendant)

File Number(s): 2016/109536
Publication restriction: None

Judgment

These proceedings concern a claim for the repayment of a deposit of $428,800 paid by the plaintiff pursuant to a contract which has since been terminated. The contract was for the sale of a property in North Sydney.
An issue has arisen concerning the costs of an application for a freezing order that was foreshadowed by the plaintiff but not ultimately pressed.
The proceedings were commenced by the filing of a Statement of Claim on 11 April 2016. The matter was listed for directions in the Real Property List on 6 May 2016. On 14 April 2016, arrangements were made at the behest of the plaintiff’s solicitor to have the matter included at short notice in the List on 15 April 2016 for the hearing of an application for a freezing order. The urgency was stated to be related to the fact that a director of the plaintiff was due to fly out of Australia in the late afternoon of 15 April 2016.
On that day, Mr Phillips of counsel appeared for the plaintiff and Mr Knoll of counsel appeared for the defendant. I was informed by Mr Knoll that the plaintiff had served a Notice of Motion upon the defendant and was going to seek leave to file it in Court, but had decided not to proceed with it. That was accepted by Mr Phillips. It was then explained by Mr Phillips that the defendant had provided certain information to the plaintiff that day which the plaintiff wished to consider before deciding whether to proceed to seek any freezing order. The application was thus abandoned.
The defendant seeks costs of and incidental to the abandoned application. It was submitted that the abandonment was a complete vindication of the defendant’s stance in opposition to the application, and that there was no reasonable basis upon which the plaintiff might have expected to obtain the freezing order (preventing the defendant from selling the North Sydney property unless a sum of $500,000 was paid into a controlled monies account). It was put that the evidence to be relied upon by the plaintiff did not come close to discharging the burden of showing a danger of dissipation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 5 Ridge Pty Limited v Tryname Pty Limited

Details

AGLC: 5 Ridge Pty Limited v Tryname Pty Limited [2016] NSWSC 951
Case: [2016] NSWSC 951
Decision Date: 07 July 2016

CaseChat Overview and Summary

The matter involved a dispute between two companies, 5 Ridge Pty Limited and Tryname Pty Limited. 5 Ridge had applied for a freezing order against Tryname to prevent the dissipation of assets. This application was subsequently withdrawn by 5 Ridge following receipt of information from Tryname regarding its financial position. The central issue for the court was whether the information provided by Tryname contained misrepresentations concerning its financial position and, if so, whether the freezing order application would have succeeded if pursued.

The court assessed the veracity of the financial information provided by Tryname. It examined whether there were any misrepresentations or omissions that could have misled 5 Ridge. The court also considered the likelihood of success of the freezing order application had it not been withdrawn. The court found that there were indeed misrepresentations in the information provided by Tryname. Despite these misrepresentations, the court concluded that the application for the freezing order would likely have succeeded even if it had proceeded. The court reached this decision based on the overall financial situation of Tryname and the evidence available.

In light of the findings, the court ordered Tryname to pay costs to 5 Ridge. The rationale for this order was that the misrepresentations were deliberate and had caused 5 Ridge to withdraw its application prematurely. The court emphasised the importance of accurate financial disclosures in such proceedings to avoid unnecessary legal costs and to ensure fair dealings between parties.

The final order was that Tryname pay the costs of the application for the freezing order incurred by 5 Ridge, reflecting the court's view that the misrepresentations played a significant role in the proceedings.

Orders