Assaf v Skalkos - [2002] NSWSC 1255

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
(First Defendant)
FOREIGN LANGUAGE PUBLICATIONS PTY LTD
(Second Defendant)

JUDGMENT OF: Levine J

COUNSEL :
K Rees
(Plaintiffs)
T Molomby SC
(Defendants)

SOLICITORS:
Mallesons Stephen Jacques
(Plaintiffs)
T Lazaropoulos
(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

TUESDAY 17 DECEMBER 2002

18374 OF 1993

JOSEPH ASSAF
(First Plaintiff)

ETHNIC COMMUNICATIONS PTY LTD
(ACN 001 445 889)
(Second Plaintiff)

v

THEODORE SKALKOS
(First Defendant)

FOREIGN LANGUAGE PUBLICATIONS PTY LTD
(Second Defendant)

JUDGMENT (Mareva orders - concluded litigation)

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…

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 Assaf v Skalkos

Details

AGLC: Assaf v Skalkos [2002] NSWSC 1255
Case: [2002] NSWSC 1255
Decision Date: 17 December 2002

CaseChat Overview and Summary

The case of Assaf v Skalkos involved a dispute over the distribution of assets from the sale of a property. The primary parties were Assaf, the appellant, and Skalkos, the respondent. The dispute arose following the conclusion of litigation between the two parties, where Assaf sought an order to prevent Skalkos from disposing of assets derived from the sale of a property. The matter was heard in the Supreme Court of Victoria.

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