Antoun v Hanna (No 2) - [2023] NSWSC 1096

Supreme Court

New South Wales

Medium Neutral Citation: Antoun v Hanna (No 2) [2023] NSWSC 1096
Hearing dates: 11 July 2023
Date of orders: 08 September 2023
Decision date: 08 September 2023
Jurisdiction: Equity - Duty List
Before: Robb J
Decision:
The Court will grant a freezing order against the respondent/fourth defendant without, at this stage of the proceedings, requiring the applicant/third defendant to give the usual undertaking as to damages for the reasons given.

Catchwords:
CIVIL PROCEDURE – interim preservation – freezing orders – ex parte applications – where the respondent has deprived a deceased estate of the value of a property in breach of orders of the then Federal Circuit Court of Australia – where the applicant seeks an ex parte freezing order to restrain the respondent from disposing of, dealing with or diminishing the value of her assets – where the applicant is not prepared to incur the risk involved in giving the usual undertaking as to damages as a condition of the Court making the freezing order sought – whether an ex parte freezing order should be made without requiring the applicant to offer the usual undertaking as to damages – consideration of the circumstances in which the Court may make ex parte freezing orders not supported by the usual undertaking as to damages – held that the circumstances of the present application are exceptional and justify the making of an ex parte freezing order without requiring the applicant to give the usual undertaking as to damages

Legislation Cited:
Succession Act 2006 (NSW), s 59, Pt 3.3
Uniform Civil Procedure Rules 2005 (NSW), rr 25.11(1), 25.14(1)(a), 25.14(6)

Cases Cited:
Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [1981] HCA 75
Antoun v Antoun (No 3); Antoun v Hanna [2023] NSWSC 684
Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961
De Boer v Williams [2004] NSWSC 351
Frigo v Culhaci [1998] NSWCA 88
New Cap Reinsurance v Chase Manhattan (No 2) [1999] NSWSC 808
Southern Tableland Insurance Brokers Pty Ltd (in liq) v Schomberg (1986) 11 ACLR 337

Texts Cited:
P Biscoe, Freezing & Search Orders: Mareva & Anton Piller Orders (2nd ed, 2008, LexisNexis Butterworths)
Practice Note SC Gen 14
RP Meagher, JD Heydon and MJ Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (4th ed, 2002, LexisNexis Butterworths)
RP Meagher, JD Heydon and MJ Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths)

Category: Procedural rulings
Parties: Tarnya Antoun (First Plaintiff)
Tamara Antoun (Second Plaintiff)
Joseph Hanna (Third Defendant)
Mary Antoun (Fourth Defendant)
Representation:
Counsel:
R McCaw (Third Defendant)
Solicitors:
Conceptual Legal (Third Defendant)

File Number(s): 2019/118417
Publication restriction: Nil

JUDGMENT

In these reasons, I will explain why, on an application for the making of a freezing order, I have made that order ex parte without requiring the applicant to offer the usual undertaking as to damages component of the undertakings required in accordance with Practice Note

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: [2023] NSWSC 1096
Decision Date: 08 September 2023

CaseChat Overview and Summary

The matter of Antoun v Hanna (No 2) involved an application for an ex parte freezing order, brought by Antoun against Hanna, in the Supreme Court of Queensland. The dispute centred around the alleged breach of previous orders by Hanna, which had deprived the estate of the deceased, Antoun's mother, of the value of a property. Antoun sought an ex parte freezing order to prevent Hanna from disposing of, dealing with, or otherwise diminishing the value of her assets. The primary legal issue was whether an ex parte freezing order could be granted without the applicant providing the customary undertaking in terms of damages, which typically serves as a condition for such an order.

The Court examined the circumstances under which ex parte freezing orders could be issued without the usual undertaking as to damages. It considered the exceptional nature of the application, given Hanna's prior breaches of court orders and the significant financial implications for the estate. The Court held that the unique and pressing circumstances of this case warranted an ex parte freezing order without requiring the applicant to provide the customary damages undertaking. This decision balanced the need to protect the assets of the deceased's estate against the potential injustice that might result from imposing the usual damages undertaking in these particular circumstances.

The Court found that the exceptional circumstances, including Hanna's previous breaches and the urgency of the situation, justified the issuance of the ex parte freezing order without the requirement for the applicant to provide the typical damages undertaking. This decision reflects the Court's ability to adapt its approach in exceptional cases to ensure justice is served in a timely and effective manner. The final orders of the Court included the granting of an ex parte freezing order, without the need for the applicant to provide the usual damages undertaking, to restrain Hanna from disposing of or diminishing the value of her assets.

Orders