Apollo Blinds Australasia Pty Ltd v Messner
[2023] NSWSC 1279
•27 October 2023
Supreme Court
New South Wales
Medium Neutral Citation: Apollo Blinds Australasia Pty Ltd v Messner [2023] NSWSC 1279 Hearing dates: 27 October 2023 Decision date: 27 October 2023 Jurisdiction: Common Law Before: Ierace J Decision: Orders made in terms of the short minutes of order.
Catchwords: CIVIL PROCEDURE – Freezing Orders – Ex parte application
Cases Cited: Sturesteps v Khoury [2019] NSWSC 943
Category: Procedural rulings Parties: Apollo Blinds Australasia Pty Ltd (Plaintiff)
Sonny Justin Messner (First Defendant)
Sharyn Anne Messner (Second Defendant)Representation: Counsel:
Solicitors:
M Cobb-Clark (Plaintiff)
Gavin Parsons and Associates (Plaintiff)
File Number(s): 2023/341189
JUDGMENT
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In an ex parte application, the plaintiff seeks a freezing order against the first defendant. On about 19 December 2018, the plaintiff entered into a franchise distribution and security agreement with SJM Coffs Harbour Pty Limited (SJM) and the first and second defendants, who were the directors and shareholders of the SJM, as guarantors, both jointly and severally, of the agreement. According to an affidavit of the solicitor for the plaintiff, Mr Gavin Parsons, the relevant background to the application is as follows.
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On 5 May 2023, SJM went into administration. On 17 May 2023, Mr Parsons caused his firm to send a letter by email to SJM and the defendants attaching a notice of breach of the agreement. On 14 May 2023, the plaintiff, through Mr Parsons, sent a notice of termination to the SJM and the defendants.
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On 22 August 2023, a solicitor acting for the second defendant, Heather McKinnon, informed Mr Parsons that there were family law proceedings on foot between the first and second defendants, and that the first defendant had agreed to indemnify the second defendant in relation to any losses sustained by her consequent to her past involvement in the business of SJM. The first defendant is the registered proprietor of real property known as 76 Smiths Road, Emerald Beach (the property).
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By email from the first defendant’s conveyancer, Mr Matt Snell, dated Saturday 14 October 2023, Mr Parsons was informed that settlement of a sale of the property was set to occur on Friday 27 October 2023. Mr Snell inquired what the quantum of debt was. On 25 October 2023, Mr Parsons informed Mr Snell that the amount owed was $242,925.96. Thereafter, there were some negotiations as to the quantum of the debt between the representatives of the plaintiff and first defendant.
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On 24 October 2023, the first defendant sent two texts to a director of the plaintiff company, Mr Mark Ronan, stating:
“Mark please talk to your lawyers asap, the most I can offer you i Payout figure is $134,000. And forgive the rest. I just want to put this part of my life behind me, I’m sorry and struggle with every day. Ive always had the utmost respect for you and joe.
But I’m sure you know what my next step is if you don’t accept the offer.”
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On 26 October 2023, Ms McKinnon wrote to Mr Parsons suggesting that if the plaintiff determined not to settle the outstanding debt for an amount acceptable to the first defendant, the appropriate course was for the net sale proceeds of the property be held in trust “for further negotiations or court proceedings”, which I presume means until there is an agreed settlement of the debt or it is resolved by court proceedings. Later that same day, Mr Parsons wrote back to Ms McKinnon accepting that proposal.
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On and since that date, Mr Parsons has sought the agreement of the first defendant to that course, as well. However, the first defendant has not responded to those requests. On 26 October at 6.01pm, Mr Parsons sent an email to Mr Snell stating that if the first defendant did not provide an undertaking by 8am on 27 October 2023 to place the net proceeds into trust pending an agreement or court order, it would approach the Court for a freezing order without further notice. There has been no response from or on behalf of the first defendant.
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The plaintiff is unaware of the time that settlement is to occur on the sale of the property. When the matter came before me this morning I made a freezing order in respect of the assets of the first defendant in the sum of $242,925.96, which the plaintiff submits is the owed amount. I have reserved my reasons until this afternoon.
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I take into account that in the correspondence between the plaintiff and first defendant and his representatives that is annexed to Mr Parsons’ affidavit, the first defendant did not dispute the quantum of the debt, but rather sought the acquiescence of the plaintiff to reduce it. I also note that the content of the plaintiff’s second text, which the plaintiff submits, on one view, may be a statement of intention to thwart legal avenues open to the plaintiff to recover any part of the amount owed. Finally, I note that the first defendant has not responded to repeated requests to state his position in relation to the proposal to hold the net sale proceeds of the property on trust, pending the resolution of the issue of the payment of the debt.
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I find that the plaintiff has demonstrated, in the words of Pembroke J in Sturesteps v Khoury [2019] NSWSC 943 at [25]:
“… some indication of realistic danger that the process of the Court will be abused or frustrated together with some evidence from which the intention of the defendant to do so may be inferred.”
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For those reasons, I have made the orders sought in the short minutes of order of today’s date, signed by me and placed with the Court papers.
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Decision last updated: 31 October 2023
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