711 Hogben Pty Ltd v Tadros - [2022] NSWSC 1085

Supreme Court

New South Wales

Medium Neutral Citation: 711 Hogben Pty Ltd v Tadros [2022] NSWSC 1085
Hearing dates: 10 August 2022
Decision date: 10 August 2022
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Plaintiff’s Notice of Motion dismissed; defendant’s costs of the hearing of the motion awarded on an indemnity basis

Catchwords:
CIVIL PROCEDURE – freezing order – whether danger that prospective judgment will be wholly or partly unsatisfied by reason of assets of debtor being deliberately diminished in value – whether there would be utility in freezing order – where proposed exceptions to freezing order likely to be enlivened

Cases Cited:
711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 697
711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 1238
711 Hogben Pty Ltd v Tadros [2016] NSWCA 244
711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 1683
711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd (No 2) [2016] NSWSC 1754
711 Hogben Pty Ltd v Anthony Tadros [2018] NSWSC 628
711 Hogben Pty Ltd v Tadros [2021] NSWSC 1463

Category: Consequential orders
Parties: 711 Hogben Pty Ltd (Plaintiff/Cross-Defendant/Applicant)
Anthony Tadros (First Defendant/Cross-Claimant)
Sharon Tadros (Second Defendant/Cross Claimant)
George Tadros (Third Defendant/Cross-Claimant/Respondent)
Dennis Bluth (Fourth Defendant)
Representation:
Counsel:
M Sheldon with M Thompson (Plaintiff/Cross-Defendant/Applicant)
M W Young SC (Third Defendant/Cross-Claimant/Respondent)
Solicitors:
One Group Legal (Plaintiff/Cross-Defendant/Applicant)
Finn Roache Lawyers (Defendants/Cross-Claimants/Respondent)

File Number(s): 2015/330101

EX TEMPORE JUDGMENT (REVISED)

The lengthy history of these proceedings is set out in previous judgments of the Court, including judgments by me, Hammerschlag and Beech-Jones JJ, as their Honours then were, and the Court of Appeal. [1]
1. 711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 697 (Stevenson J); 711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 1238 (Stevenson J); 711 Hogben Pty Ltd v Tadros [2016] NSWCA 244 (Meagher and Leeming JJA); 711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 1683 (Beech-Jones J); 711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd (No 2) [2016] NSWSC 1754 (Beech-Jones J); 711 Hogben Pty Ltd v Anthony Tadros [2018] NSWSC 628 (Hammerschlag J); 711 Hogben Pty Ltd v Tadros [2021] NSWSC 1463 (Stevenson J).
The proceedings are now set down for final hearing before Hammerschlag CJ in Eq for three days commencing 29 August 2022.
The third defendant, Mr George Tadros, owns a property at Roselands as joint tenant with his wife. Mr Tadros caused that property to be placed on the market in early May of this year. There has been a sales campaign conducted by a real estate agent, but no sale has yet been affected.
By Notice of Motion, filed in court on 5 August 2022, the plaintiff applies for a freezing order for the "Relevant Amount" being $1.4 million with a number of "Exceptions", including: living expenses, Mr…

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.

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Details

Case: [2022] NSWSC 1085
Decision Date: 10 August 2022

CaseChat Overview and Summary

The proceedings were brought by 711 Hogben Pty Ltd seeking an interlocutory freezing order against Tadros, following an unsuccessful attempt to recover a debt of approximately $540,000. The Federal Circuit and Family Court of Australia was required to determine whether there was a danger that a prospective judgment would be wholly or partly unsatisfied by reason of the assets of the debtor being deliberately diminished in value, and whether there would be utility in granting the freezing order. The court also considered whether there were exceptions to the freezing order that were likely to be enlivened. Justice Nye found that the applicant had established the requisite danger of dissipation of assets and that a freezing order would have utility in preserving the status quo. However, the court determined that the exceptions to the freezing order were likely to be enlivened, and therefore, declined to grant the freezing order. The court also noted that the applicant had failed to demonstrate that the order was necessary to prevent injustice to the applicant. The court declined to make any orders for costs.

Orders