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Aqualand North Sydney Lavender Development Pty Ltd v The Owners - Strata Plan No. 102081

Aqualand North Sydney Lavender Development Pty Ltd v The Owners - Strata Plan No. 102081

Case [2025] NSWCA 143 2 July 2025

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Court of Appeal

Supreme Court

New South Wales

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Medium Neutral Citation: Aqualand North Sydney Lavender Development Pty Ltd v The Owners – Strata Plan No. 102081 [2025] NSWCA 143
Hearing dates: 27 May 2025
Date of orders: 2 July 2025
Decision date: 02 July 2025
Before: Mitchelmore JA at [1];
Ball JA at [36];
Free JA at [37]
Decision:
The summons seeking leave to appeal is dismissed with costs.

Catchwords:
PRACTICE AND PROCEDURE – application for leave to appeal – interlocutory decision – decision to grant freezing orders – whether primary judge erred in determining that the Court had jurisdiction to grant freezing orders against the appellant – whether ‘ordinary course of business’ transactions can ground the requisite danger for the purpose of Uniform Civil Procedure Rules 2011 r 25.14 – whether application raised a point of general principle

Legislation Cited:
Supreme Court Act 1970 (NSW), s 101(2)(e).
Uniform Civil Procedure Rules 2005 (NSW), rr 25.11,
25.14

Cases Cited:
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18
Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271; [1990] HCA 10
Organic Grape Spirit Ltd v Nueva IQT, SL [2020] EWCA Civ 999
Palmer v Parbery; QNI Metals Pty Ltd v Parbery [2019] QCA 27; (2019) 136 ACSR 26
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30
Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264
Skyworks v 32 Drummoyne Road [2017] NSWSC 343

Texts Cited:
Steven Gee QC, Gee on Commercial Injunctions (Sweet & Maxwell, 7th ed, 2022)

Category: Principal judgment
Parties: Aqualand North Sydney Lavender Development Pty Ltd (Applicant)
The Owners – Strata Plan No. 102081 (Respondent)
Representation:
Counsel:
D T Miller SC / S D Puttick (Applicant)
D S Weinberger / L J McIntyre (Respondent)
Solicitors:
Keystone Lawyers (Applicant)
JS Mueller & Co Lawyers (Respondent)

File Number(s): 2025/00090673
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity - Technology and Construction List

Citation:

[2025] NSWSC 31

Date of Decision:

6 February 2025

Before:

Stevenson J

File Number(s):

2023/201402

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant (the Developer) sought leave to appeal from freezing orders made by Stevenson J on the application of the respondent. The Developer is a special purpose vehicle incorporated for the sole purpose of developing a commercial and residential development in Milsons Point. The respondent is the owners corporation of the development and has brought proceedings against the Developer and a related entity seeking damages for alleged building defects.

The primary judge made orders enjoining the Developer from disposing of, dealing with or diminishing the value of any of its…

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

AGLC: Aqualand North Sydney Lavender Development Pty Ltd v The Owners - Strata Plan No. 102081 [2025] NSWCA 143
Case: [2025] NSWCA 143
Decision Date: 02 July 2025

CaseChat Overview and Summary

Aqualand North Sydney Lavender Development Pty Ltd (the appellant) sought leave to appeal an interlocutory decision of the primary judge that granted freezing orders against it in favour of The Owners - Strata Plan No. 102081 (the respondent). The dispute concerned the appellant's alleged dissipation of assets, which the respondent claimed was intended to frustrate any judgment it might obtain in underlying proceedings.

The Court of Appeal was required to determine whether the primary judge erred in finding that it had jurisdiction to grant freezing orders against the appellant. Specifically, the court considered whether transactions conducted in the 'ordinary course of business' could establish the requisite danger of asset dissipation necessary to ground an application for freezing orders under rule 25.14 of the Uniform Civil Procedure Rules 2011 (NSW). The court also considered whether the application raised a point of general principle.

The Court of Appeal dismissed the summons seeking leave to appeal. The judges reasoned that the primary judge had not erred in principle in granting the freezing orders. They found that the appellant's argument that ordinary business transactions could not ground the requisite danger was not a valid reason to grant leave to appeal, as it did not raise a point of general principle that warranted appellate intervention. The court concluded that the appeal did not have a reasonably arguable prospect of success.

The summons seeking leave to appeal was dismissed with costs.

Orders

Orders of the court

The summons seeking leave to appeal is dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Aqualand North Sydney Lavender Development Pty Ltd v The Owners - Strata Plan No. 102081 [2025] NSWCA 143

Cases Citing This Decision

No citing cases yet.

Cases Cited

The Owners - Strata Plan No. 102081 v Aqualand Construction Pty Ltd [2025] NSWSC 31
Citation 1

…ion: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity - Technology and Construction List Citation: [2025] NSWSC 31 Date of Decision: 6 February 2025 Before: Stevenson J File Number(s): 2023/201402…
Palmer v Parbery; QNI Metals Pty Ltd v Parbery [2019] QCA 27
Citation 2 (Para 21)

…The first of these was Palmer v Parbery; QNI Metals Pty Ltd v Parbery [2019] QCA 27; (2019) 136 ACSR 26 (“ Palmer v Parbery ”), which involved the equivalent rules to rr 25.11 and 25.14 in the Uniform Civil Procedure Rules 1999 (Qld) (rr 260A and 260D). McMurdo JA (Fraser and Gotterson JJA agreeing) considered a…
Skyworks v 32 Drummoyne Road [2017] NSWSC 343
Citation 3 (Para 31)

…The Developer also referred to the decision of McDougall J in Skyworks v 32 Drummoyne Road [2017] NSWSC 343, in which his Honour granted freezing orders in respect of a risk of dissipation of assets by a special purpose vehicle incorporated for the purpose of developing property, which had a pattern of loaning proc…
Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53
Citation 4

…rnishee the deposit when the effect might be to give it a preference, properly so called. See Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [[2017] NSWCA 53]. [53] In those circumstances, I conclude that if the defendants are released from their undertaking to the court and an equivalent order is not made…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Citation 5 (Para 3)

…merely arguable: see eg Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[39]. Accordingly, I would refuse leave to appeal.…
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Citation 6 (Para 3)

…, and did not raise an injustice which was reasonably clear in the sense of going beyond what was merely arguable: see eg Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[39]. Accordingly, I would refuse leave to ap…
Cardile v LED Builders Pty Ltd [1999] HCA 18
Citation 7

…o be regarded as an extraordinary remedy which requires a high degree of caution on the part of the Court invited to make the order [citing Cardile v LED Builders (1999) 198 CLR 380; [1999] HCA 18 at [50] (Gaudron, McHugh, Gummow and Callinan JJ)]. It is for the applicant to show, from the evidence before the Court, that there…
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 31
Citation 8 (Para 15)

…the joint judgment of Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 32-33; [1998] HCA 30. Relevantly for present purposes, the joint judgment in Cardile stated at [42] that where relief is directed against parties to t…
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30
Citation 9 (Para 15)

…nan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 32-33; [1998] HCA 30. Relevantly for present purposes, the joint judgment in Cardile stated at [42] that where relief is directed against parties to the proceedings and again…
Hadid v Lenfest Communications Inc [1996] FCA 675
Citation 10

…est from those formulations will only add to what has been described as a ‘sea of semantics’ [citing Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 327 (Meagher JA)]. What is clear is that a freezing order is to be regarded as an extraordinary remedy which requires a high degree of caution on the part o…
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1990] HCA 10
Citation 11 (Para 15)

…r opponent to frustrate the court’s processes, consistently with National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271 at 277; [1990] HCA 10. Nonetheless, it submitted that there needed to be something about the identified conduct to justify the remedy in the circumstances, given its extraor…
Jackson v Sterling Industries Ltd [1987] HCA 23
Citation 12 (Para 16)

…horities that have warned against such orders being used for that purpose: see eg Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 621, 625; [1987] HCA 23, and the passage from Riley McKay at 276 that I have extracted at [14] above.…
Pty Ltd v Maritime Union of Australia 1 Ch App 244
Citation 13 (Para 15)

…(“ Cardile ”) at [41] by reference to the joint judgment of Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 32-33; [1998] HCA 30. Relevantly for present purposes, the joint judgment in Cardile stated at [42] that where relief is directed against pa…
[2017] 3 WLR 1131 [2017] 3 WLR 1131
Citation 14 (Para 21)

…) (rr 260A and 260D). McMurdo JA (Fraser and Gotterson JJA agreeing) considered at [54] the following statement of Gloster LJ in Holyoake v Candy [2017] 3 WLR 1131 at [34]:…
Patterson v BTR Engineering (Aust) Ltd (1989) NSWLR 319
Citation 15

…. Any attempt to derive a bright-line test from those formulations will only add to what has been described as a ‘sea of semantics’ [citing Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 327 (Meagher JA)]. What is clear is that a freezing order is to be regarded as an extraordinary remedy which requires a high degree of caution…

Legislation Cited

Uniform Civil Procedure Rules 2005 (NSW) 25.11, 25.14
3 mentions (from Para 2)
Supreme Court Act 1970 (NSW) 101(2)(e)
1 mention (from Para 2)
Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 21)

Medium Neutral Citation:	Aqualand North Sydney Lavender Development Pty Ltd v The Owners – Strata Plan No. 102081 [2025] NSWCA 143
Hearing dates:	27 May 2025
Date of orders:	2 July 2025
Decision date:	02 July 2025
Before:	Mitchelmore JA at [1]; Ball JA at [36]; Free JA at [37]
Decision:	The summons seeking leave to appeal is dismissed with costs.
Catchwords:	PRACTICE AND PROCEDURE – application for leave to appeal – interlocutory decision – decision to grant freezing orders – whether primary judge erred in determining that the Court had jurisdiction to grant freezing orders against the appellant – whether ‘ordinary course of business’ transactions can ground the requisite danger for the purpose of Uniform Civil Procedure Rules 2011 r 25.14 – whether application raised a point of general principle
Legislation Cited:	Supreme Court Act 1970 (NSW), s 101(2)(e). Uniform Civil Procedure Rules 2005 (NSW), rr 25.11, 25.14
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271; [1990] HCA 10 Organic Grape Spirit Ltd v Nueva IQT, SL [2020] EWCA Civ 999 Palmer v Parbery; QNI Metals Pty Ltd v Parbery [2019] QCA 27; (2019) 136 ACSR 26 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 Skyworks v 32 Drummoyne Road [2017] NSWSC 343
Texts Cited:	Steven Gee QC, Gee on Commercial Injunctions (Sweet & Maxwell, 7th ed, 2022)
Category:	Principal judgment
Parties:	Aqualand North Sydney Lavender Development Pty Ltd (Applicant) The Owners – Strata Plan No. 102081 (Respondent)
Representation:	Counsel: D T Miller SC / S D Puttick (Applicant) D S Weinberger / L J McIntyre (Respondent) Solicitors: Keystone Lawyers (Applicant) JS Mueller & Co Lawyers (Respondent)
File Number(s):	2025/00090673
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity - Technology and Construction List Citation: [2025] NSWSC 31 Date of Decision: 6 February 2025 Before: Stevenson J File Number(s): 2023/201402