Anderson v Williams

[2010] NSWSC 1381

CITATION:	Anderson v Williams [2010] NSWSC 1381
HEARING DATE(S):	24 November 2010
JUDGMENT OF:	Ball J
EX TEMPORE JUDGMENT DATE:	24 November 2010
DECISION:	1. The defendant's motion dismissed with costs. 2. Defendant pay the plaintiff's costs of the proceedings.
CATCHWORDS:	PROCEDURE – freezing orders – whether Supreme Court has power to grant a freezing order in aid of Family Court proceedings – whether substantial risk that plaintiff will dissipate assets in order to avoid judgment that defendant may obtain
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW)
CATEGORY:	Procedural and other rulings
PARTIES:	Dale Edward Anderson (Plaintiff) Deidre Vivienne Williams (Defendant)
FILE NUMBER(S):	SC 2010/379886
COUNSEL:	Mr A Rogers (Plaintiff) Mr B DeBuse (Defendant)
SOLICITORS:	Patrick Hargraves & Co (Plaintiff) Marsdens Law Group (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

24 NOVEMBER 2010

2010/379886 DALE EDWARD ANDERSON v DEIDRE VIVIENNE WILLIAMS

EX TEMPORE JUDGMENT

1 In this matter the plaintiff and the defendant were in a de facto relationship for a substantial period of time. That relationship has broken down. One of the assets of the relationship is a residential property at Hillsdale which is in the name of the plaintiff but in respect of which the defendant makes or has indicated that she may make two possible claims. One of those claims is a claim that the plaintiff holds the property on constructive trust for himself and for the defendant. The other claim is a claim for an adjustment of the property rights of the parties which is now a claim that would be brought in the Family Court. The defendant has apparently lodged that claim although the proceedings have not yet been issued by the court.

2 The defendant learned that the plaintiff was in the process of selling the property and lodged a caveat over the title. These proceedings were originally commenced by the plaintiff seeking an order that the defendant withdraw that caveat. The defendant concedes that the plaintiff is entitled to that order.

3 The defendant then filed, in the proceedings commenced by the plaintiff, a motion seeking freezing orders against the plaintiff in relation to the Hillsdale property but also in relation to other property owned by the plaintiff. The defendant claims to be entitled to those freezing orders on two bases. First, the defendant says that the court has power to make the freezing orders in support of proceedings that the defendant has lodged with the Family Court. Apparently, the Family Court does not have a duty judge system. Consequently, it is not possible to make an urgent application to that court for freezing orders. Secondly, the defendant says that she is entitled to freezing orders in support of proceedings that she could bring in this court seeking orders that the plaintiff holds the property at Hillsdale on trust for her or for them both.

4 In my opinion the court does not have the power to grant a freezing order in aid of the Family Court proceedings. The court does have power to grant freezing orders in aid of other proceedings but only if there is a sufficient prospect that the judgment obtained in those other proceedings will be registered or enforced by this court - see UCPR r 25.14(2). Clearly, that is not the position in relation to the Family Court proceedings.

5 It may be that the court has jurisdiction to grant freezing orders in anticipation of proceedings seeking a declaration that the plaintiff holds the property at Hillsdale on trust even if those proceedings have not yet been commenced by the defendant. However, in the circumstances of this case I am not prepared to exercise my discretion to grant those orders. I say that for two principal reasons. First, I am not satisfied on the evidence that there is a substantial risk that the plaintiff will or is threatening to dissipate the assets he owns in order to avoid any judgment that the defendant might obtain against him. The defendant points to the fact that the plaintiff put the Hillsdale property on the market without giving her any notice or consulting her in relation to the sale. However, there is no evidence that the plaintiff took that action in order to defeat any claim that the defendant might have. The evidence suggests that the plaintiff was concerned about the level of the mortgage in respect of the property, the fact that he was not working and the desirability of selling the property in order to bring to an end the obligation to make further mortgage payments.

6 Secondly, the plaintiff, through his solicitors, has made an offer to pay half the net proceeds of the sale of the property into the trust account of his solicitors on the basis that that money is not to be released without both parties' written consent or an order of a court. I am proceeding on the assumption that that offer is still open.

7 In my opinion what is offered provides the defendant with sufficient protection, at least up until the point of time when the Family Court proceedings have been issued and the matter is before the Family Court. If necessary, the defendant can renew any application for freezing orders or similar orders at that time.

8 For those reasons the defendant's motion should be dismissed with costs. The plaintiff should also have his costs of the summons.

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