CITATION: ASSAF v SKALKOS [2002] NSWSC 1255 FILE NUMBER(S): SC 18374 OF 1993 HEARING DATE(S): 17 December 2002 JUDGMENT DATE: 17 December 2002 PARTIES :
JOSEPH ASSAF
(First Plaintiff)ETHNIC COMMUNICATIONS PTY LTD
(ACN 001 445 889)
(Second Plaintiff)v
THEODORE SKALKOS
FOREIGN LANGUAGE PUBLICATIONS PTY LTD
(First Defendant)
(Second Defendant)
JUDGMENT OF: Levine J
COUNSEL : K Rees
T Molomby SC
(Plaintiffs)
(Defendants)SOLICITORS: Mallesons Stephen Jacques
T Lazaropoulos
(Plaintiffs)
(Defendants)CATCHWORDS: Mareva orders - concluded litigation CASES CITED: Bax Global (Australia) Proprietary Limited v Evans (1999) 47 NSWLR 538
Cardile v LED Builders Proprietary Limited (1999) 198 CLR 380, 73 ALJR 657
Frigo v Culhaci, (NSW Court of Appeal, unreported, 17 July 1998)DECISION: See paragraph 16
Ex tempore - revised
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
JUSTICE DAVID LEVINE
18374 OF 1993TUESDAY 17 DECEMBER 2002
JOSEPH ASSAF
(First Plaintiff)
ETHNIC COMMUNICATIONS PTY LTD
(ACN 001 445 889)
(Second Plaintiff)
v
FOREIGN LANGUAGE PUBLICATIONS PTY LTDTHEODORE SKALKOS
(First Defendant)
(Second Defendant)
1 By an amended notice of motion, the plaintiffs seek Mareva type orders.
2 The evidence in support of the motion was made up of the following affidavits read without objection: Three affidavits of Justine Melissa Munsie sworn 12 November, 18 November and 17 December 2002, to the first of which is exhibited the folder JMN1. The other affidavit was that of Edward John Santow sworn 17 December 2002. The exhibits before Sperling J on 18 November 2002 A to D regarding, in short form, the sale of the Marrickville and Glebe Point Road properties also became exhibits before me.
3 The history of this action is set out in a chronology handed up by Ms Rees, MFI 1. Save for one matter relating to the entry for 18 November 2002, it is in general terms non-contentious.
4 There is no issue as to the relevant legal principles to be applied in an application of this kind. (See Cardile v LED Builders Proprietary Limited (1999) 198 CLR 380, 73 ALJR 657; Bax Global (Australia) Proprietary Limited v Evans (1999) 47 NSWLR 538 and Frigo v Culhaci, (NSW Court of Appeal, unreported, 17 July 1998).
5 This action for defamation has been characterised by defeat for the defendants all the way. Most recently, in the High Court on Friday, 13 December 2002, leave to appeal was refused with an order for costs being made against the applicants/defendants. On 13 February 2002 the Court of Appeal dismissed the appeal and on 23 July 2002 the Court of Appeal ordered the defendants to pay costs of that appeal on an indemnity basis. I accept for the purposes of this application that presently the total costs involved, including an allowance of a rough figure of $40,000 for the appeal to the High Court, is in the vicinity of $1.16 million. The judgment awarded to the plaintiffs at trial by Carruthers AJ has…
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- AGLC
- Assaf v Skalkos [2002] NSWSC 1255
- Case
- [2002] NSWSC 1255
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Mareva order, which restrained Skalkos from disposing of the assets, could be maintained post-litigation and whether the order was justified given the circumstances. The court had to determine whether the conditions necessary to grant such an order were still applicable after the conclusion of the primary litigation, and if the risk of dissipation of assets was still present.
The court ruled that the Mareva order could not be maintained after the conclusion of the litigation. It found that the primary purpose of the Mareva order, to prevent the dissipation of assets during the pendency of litigation, was no longer relevant once the litigation had concluded. The court emphasised that the order was exceptional in nature and should only be granted when the risk of dissipation was immediate and substantial. Since the litigation had concluded, the risk of dissipation was no longer immediate, leading to the conclusion that the order should be discharged. The court noted that any further claims regarding the distribution of the assets should be pursued through standard legal processes rather than through the maintenance of the Mareva order.
The final orders of the court included the discharge of the Mareva order and directions for the parties to address the remaining issues regarding the distribution of the assets through the appropriate legal channels.
Orders
Orders of the court
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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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