Angas Securities Limited v Adih

[2017] FCA 1190

FEDERAL COURT OF AUSTRALIA

Angas Securities Limited v Adih [2017] FCA 1190

File number:	SAD 253 of 2017
Judge:	BESANKO J
Date of judgment:	28 September 2017
Date of publication of reasons:	6 October 2017
Catchwords:	PRACTICE AND PROCEDURE – consideration of an application for a freezing order under Division 7.4 of the Federal Court Rules 2011 (Cth) – where the applicant has demonstrated a “good arguable case” within the meaning of r 7.35(1) of the Rules – where the applicant failed to satisfy the Court of the “danger” requirement in r 7.35(4) of the Rules.
Legislation:	Federal Court Rules 2011 (Cth) Div 7.4, r 7.35
Cases cited:	Platinum Mortgage Securities (Vic) Limited [2015] FCA 633
Dates of hearing:	26, 28 September 2017
Registry:	South Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Applicant:	Mr E Belperio
Solicitor for the Applicant:	Charlton Rowley
Counsel for the Respondents:	The Respondents did not appear

ORDERS

SAD 253 of 2017

BETWEEN:

ANGAS SECURITIES LIMITED ACN 091 942 728

Applicant

AND:

KOFI EUGENIO SEAWADOR ADIH

First Respondent

KOFI ADIH PTY LTD ACN 061 095 725

Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	28 SEPTEMBER 2017

THE COURT ORDERS THAT:

1.The applicant’s application for a freezing order be refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

1. On 28 September 2017, I refused an application by Angas Securities Limited (Angas Securities) for a freezing order under Division 7.4 of the Federal Court Rules 2011 (Cth) (the Rules). I said that I would deliver reasons for my decision and these are the reasons.

2. Angas Securities relied on a property valuation prepared by Mr Kofi Eugenio Seawador Adih of Kofi Adih Pty Ltd to lend an amount of $2,850,000 to Augusta Developments Pty Ltd (Augusta Developments) secured by way of first registered mortgage.  Mr Adih provided various valuations of the property ranging from a market value with development approval of $4,080,000 to a forced sale value of $2,800,000.  When Augusta Developments defaulted on the loan, Angas Securities took possession of the property and entered into a contract to sell the property for $1,595,000. 

3. Angas Securities alleges that Mr Adih and Kofi Adih Pty Ltd prepared the valuation negligently and in breach of the contract of retainer and the duty of care they owed to Angas Securities.  It also alleges that they engaged in misleading or deceptive conduct.

4. When the application by Angas Securities for a freezing order under Division 7.4 of the Rules came on for hearing on 26 September 2017, I expressed concern as to whether it had established a “good arguable case” within r 7.35(1) and “a danger that a prospective judgment will be wholly or partly unsatisfied because … the assets of the prospective judgment debtor … are … disposed of, dealt with or diminished in value” within r 7.35(4). Counsel for Angas Securities asked me to adjourn the application for a short period of time so that the applicant might consider whether further evidence as to these matters was available.

5. When the application came back before me on 28 September 2017, counsel for Angas Securities adduced further evidence which satisfied me that it had established a good arguable case.  However, I was still not satisfied of the other requirement.  The only evidence relating to that requirement seemed to be the marketing of a number of units at Second Valley owned by Mr Adih.  There is and remains no evidence that the marketing of these units was prompted in any way by an appreciation by Mr Adih that Angas Securities might make a claim against him or his company.  In fact, it seems that the units have been on the market since the beginning of this year.  I realise that an applicant for a freezing order is not required to prove that the respondent is acting or proposing to act with the intention of avoiding having to satisfy a prospective judgment debt (see Platinum Mortgage Securities (Vic) Limited [2015] FCA 633 at [8] per Flick J and the cases cited therein). However, a freezing order remains a drastic form of relief and I did not consider that the fact that the respondents had had some property on the market from a time (at least on the evidence as it presently stands) before they became aware of a possible claim against them was sufficient to satisfy the requirements of r 7.35(4). In reaching that conclusion, I had regard to all of the evidence before me, including the fact that that Mr Adih is no longer insured to provide valuations for first mortgage purposes.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:        

Dated:        6 October 2017