Allianz v Vitale - [2015] NSWSC 352

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Allianz v Vitale & Ors [2015] NSWSC 352
Hearing dates: 19 March 2015
Date of orders: 01 April 2015
Decision date: 01 April 2015
Jurisdiction: Equity Division - Duty List
Before: Slattery J
Decision:
Existing Freezing Orders continued. Respondent ordered to pay into Court the balance of monies the judgment debtor paid to the respondent company on 30 January 2015.

Catchwords: FREEZING ORDERS – application for interim preservation orders in support of claim over funds – where judgment debtor had filed a debtors petition and become bankrupt – where judgment debtor had caused funds to be transferred to respondent company controlled by judgment debtor – where respondent company's funds appear to have been used for personal expenditure of judgment debtor – company exercising a power of disposition over judgment debtor's assets – whether existing orders should be continued – whether subject funds should be paid into court.
Legislation Cited: Bankruptcy Act 1966 (Cth)
Conveyancing Act 1919, s 37A
Uniform Civil Procedure Rules 2005, r 25.14(5)
Cases Cited: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Clarke v Chadburn (1985) 1 WLR 78
Bank of Western Australia Ltd v Ocean Trawlers Pty Ltd (1994) 13 WAR 407
Millennium Federation Pty Ltd v Bigjig Pty Ltd [2000] 1 Qd R 275
Slieman v Afeich [2005] NSWSC 1063
Category: Consequential orders (other than Costs)
Parties: Applicant: Allianz Australia Insurance Limited ACN 000 122 850
First defendant: Anthony Vitale
Second defendant: Giuliana Vitale
First Respondent: Avcon (NSW) Pty Ltd ACN 079 265 802
Second Respondent: Paul Vitale
Third Respondent: AV Guardian Pty Ltd ACN 126 152 127
Fourth Respondent: Gary William Lee
Representation:
Counsel:
Applicant: M. Ashhurst SC, A. Smith
Respondent: D. Allen
Solicitors:
Applicant: James Collier, Moray & Agnew Lawyers
Respondent: Alex Ronayne, Ronayne Owens Lawyers

File Number(s): 2010/93159
Publication restriction: No

Judgment

Allianz Australia Insurance Limited (“Allianz”) seeks interim preservation orders in the Equity Duty list in support of its proprietary claim over a sum of $602,280.21 plus interest (“the subject funds”) that Avcon (NSW) Pty Limited (“Avcon”) holds in a bank account with the Commonwealth Bank of Australia (“CBA”). Allianz’s present application is to continue certain existing restraints against Avcon dealing with the subject funds and related relief, and in the alternative, a non-proprietary freezing order under Uniform Civil Procedure Rules (“UCPR”), r 25.11 over the funds. Avcon submits the Court should not place any restraint on its use of the subject funds.
The relevant procedural history may be briefly stated. Allianz commenced these proceedings in April 2010 claiming on an indemnity against the first and second named defendants Anthony and Giuliana Vitale. After a contested hearing Sackar J pronounced judgment on 1 April 2014 and on 14 April 2014 entered judgment against Mr and Mrs Vitale for $1,870,036.85 together with interest and costs.
Two months later, on 16 June 2014, Mr and Mrs Vitale, the judgment debtors, executed a mortgage over what was otherwise unencumbered property…

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 Allianz v Vitale

Details

AGLC: Allianz v Vitale [2015] NSWSC 352
Case: [2015] NSWSC 352
Decision Date: 01 April 2015

CaseChat Overview and Summary

The matter before the court was Allianz Australia Insurance Limited seeking interim preservation orders in support of a claim over funds. The judgment debtor had filed a debtors petition and become bankrupt, and had caused funds to be transferred to a respondent company controlled by the judgment debtor. The company's funds appear to have been used for personal expenditure of the judgment debtor. The company is exercising a power of disposition over the judgment debtor's assets. The legal issues before the court were whether existing orders should be continued and whether the subject funds should be paid into court. The court found that the existing orders should be continued, and that the subject funds should be paid into court. The court found that the judgment debtor had caused funds to be transferred to the respondent company for the purpose of defeating the claim of the plaintiff. The court found that the respondent company was exercising a power of disposition over the judgment debtor's assets, and that the funds in question should be paid into court to preserve them for the benefit of the judgment debtor's creditors. The court ordered that the subject funds be paid into court, and that the existing orders be continued.

Orders