Architecture HQ Pty Ltd v Propertylinc Pty Ltd - [2015] FCA 686

FEDERAL COURT OF AUSTRALIA
Architecture HQ Pty Ltd v Propertylinc Pty Ltd [2015] FCA 686

Citation: Architecture HQ Pty Ltd v Propertylinc Pty Ltd [2015] FCA 686

Parties: ARCHITECTURE HQ PTY LTD (ACN 105 110 772) v PROPERTYLINC PTY LTD (ACN 114 649 731), DP TOSCANO ARCHITECTS PTY LTD (ACN 120 090 691) and SUMMERHILL SHOPPING CENTRE PTY LTD (ACN 124 197 128)

File number: VID 339 of 2015

Judge: BROMBERG J

Date of judgment: 29 June 2015

Catchwords: PRACTICE AND PROCEDURE — application for freezing order under r 7.35 of the Federal Court Rules 2011 (Cth) — application for ancillary order under r 7.33 of the Rules — identification of appropriate test — whether good arguable case — whether real risk of dissipation of assets — whether mere possibility of dissipation suffices — absence of solid evidence in support of finding of real risk — application dismissed.

Legislation: Copyright Act 1968 (Cth) ss 36(1), 115(2)
Federal Court Rules2011 (Cth) rr 7.32, 7.33(1), 7.35, 7.35(4)

Cases cited: Deputy Commissioner of Taxation vHua Wang Bank Berhad (2010) 273 ALR 194
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Frigo v Culhaci [1998] NSWCA 88
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Curtis v NID Pty Limited [2010] FCA 1072

Date of hearing: 29 June 2015

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 26

Counsel for the Applicant: Mr J McKay

Solicitor for the Applicant: Hub Property Specialists

Solicitor for the First Respondent: Mr J Cohen of LMS Lawyers

Counsel for the Second Respondent: Mr J Toscano (Director)

Counsel for the Third Respondent: Mr D.G. Guidolin

Solicitor for the Third Respondent: Arnold Bloch Leibler

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 339 of 2015

BETWEEN:
ARCHITECTURE HQ PTY LTD (ACN 105 110 772)
Applicant

AND:
PROPERTYLINC PTY LTD (ACN 114 649 731)
First Respondent

DP TOSCANO ARCHITECTS PTY LTD (ACN 120 090 691)
Second Respondent

SUMMERHILL SHOPPING CENTRE PTY LTD (ACN 124 197 128)
Third Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

29 JUNE 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The applicant’s interlocutory application of 26 June 2015 is dismissed.
2.The applicant pay the costs of the first and third respondents of the interlocutory application.
3.On or before 27 July 2015 the applicant file and serve an amended originating application together with its statement of claim.
4.On or before 24 August 2015 the respondents file and serve their defences.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 339 of 2015

BETWEEN:
ARCHITECTURE HQ PTY LTD (ACN 105 110 772)
Applicant

AND:
PROPERTYLINC PTY LTD (ACN 114 649 731)
First Respondent

DP TOSCANO ARCHITECTS PTY LTD (ACN 120 090 691)
Second Respondent

SUMMERHILL SHOPPING CENTRE PTY LTD (ACN 124 197 128)
Third Respondent

JUDGE:

BROMBERG J

DATE:

29 JUNE 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

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.

Continue reading Architecture HQ Pty Ltd v Propertylinc Pty Ltd

Details

AGLC: Architecture HQ Pty Ltd v Propertylinc Pty Ltd [2015] FCA 686
Case: [2015] FCA 686
Decision Date: 29 June 2015

CaseChat Overview and Summary

Architecture HQ Pty Ltd applied for an interlocutory freezing order against Propertylinc Pty Ltd and others under Rule 7.35 of the Federal Court Rules 2011, as well as ancillary orders under Rule 7.33. The application was made on the basis that there was a real risk that Propertylinc would dissipate its assets, potentially depriving Architecture of a judgment debt. The Federal Court was tasked with determining the appropriate legal test for establishing a good arguable case and assessing whether there was a real risk of dissipation of assets.

The court examined the applicable legal principles and noted that while a mere possibility of asset dissipation does not suffice, the threshold for establishing a real risk is not excessively high. However, the applicant failed to provide solid evidence to substantiate the finding of a real risk. The court was also concerned about the lack of urgency in the application, given that Architecture had already obtained judgment in a state court and was in the process of enforcing it. The court concluded that the applicant did not meet the required standard for the issuance of a freezing order.

Consequently, the court dismissed the application for an interlocutory freezing order and ancillary orders. The applicant was ordered to pay the costs of the first and third respondents. Architecture was further directed to file and serve an amended originating application and statement of claim by a specified date, with the respondents required to file and serve their defences by another date. The court's decision highlights the importance of demonstrating a real risk of asset dissipation with concrete evidence and the need for urgency in such applications.

Orders

Orders of the court

1. The applicant’s interlocutory application of 26 June 2015 is dismissed.

2. The applicant pay the costs of the first and third respondents of the interlocutory application.

3. On or before 27 July 2015 the applicant file and serve an amended originating application together with its statement of claim.

4. On or before 24 August 2015 the respondents file and serve their defences.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Architecture HQ Pty Ltd v Propertylinc Pty Ltd [2015] FCA 686
Parties:	ARCHITECTURE HQ PTY LTD (ACN 105 110 772) v PROPERTYLINC PTY LTD (ACN 114 649 731), DP TOSCANO ARCHITECTS PTY LTD (ACN 120 090 691) and SUMMERHILL SHOPPING CENTRE PTY LTD (ACN 124 197 128)
File number:	VID 339 of 2015
Judge:	BROMBERG J
Date of judgment:	29 June 2015
Catchwords:	PRACTICE AND PROCEDURE — application for freezing order under r 7.35 of the Federal Court Rules 2011 (Cth) — application for ancillary order under r 7.33 of the Rules — identification of appropriate test — whether good arguable case — whether real risk of dissipation of assets — whether mere possibility of dissipation suffices — absence of solid evidence in support of finding of real risk — application dismissed.
Legislation:	Copyright Act 1968 (Cth) ss 36(1), 115(2) Federal Court Rules2011 (Cth) rr 7.32, 7.33(1), 7.35, 7.35(4)
Cases cited:	Deputy Commissioner of Taxation vHua Wang Bank Berhad (2010) 273 ALR 194 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Frigo v Culhaci [1998] NSWCA 88 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Curtis v NID Pty Limited [2010] FCA 1072
Date of hearing:	29 June 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	26
Counsel for the Applicant:	Mr J McKay
Solicitor for the Applicant:	Hub Property Specialists
Solicitor for the First Respondent:	Mr J Cohen of LMS Lawyers
Counsel for the Second Respondent:	Mr J Toscano (Director)
Counsel for the Third Respondent:	Mr D.G. Guidolin
Solicitor for the Third Respondent:	Arnold Bloch Leibler

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 339 of 2015

JUDGE:	BROMBERG J
DATE OF ORDER:	29 JUNE 2015
WHERE MADE:	MELBOURNE

JUDGE:	BROMBERG J
DATE:	29 JUNE 2015
PLACE:	MELBOURNE