Awad v Atanasovstka

[2010] NSWSC 1308

CITATION:	Awad v Atanasovstka [2010] NSWSC 1308
HEARING DATE(S):	7 October 2010
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	7 October 2010
DECISION:	Ex parte freezing order continued on interim basis subject to variation to permit addition expenditure by defendant.
CATCHWORDS:	EQUITY – Equitable remedies – Injunctions – Interlocutory injunctions – Generally – whether injunction should be continued – balance of convenience.
CATEGORY:	Procedural and other rulings
PARTIES:	Nahed Awad (plaintiff) Liljana Atanasovska (defendant)
FILE NUMBER(S):	SC 2010/325136
COUNSEL:	Mr P Blake (sol) (plaintiff) Ms L Atanasovska (in person)
SOLICITORS:	Blake Lawyers (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Thursday, 7 October 2010

2010/325136 Nahed Awad v Liljana Atanasovstka

JUDGMENT (ex tempore)

1 HIS HONOUR: This is a application for the continuation on an interim basis of an ex parte injunction granted on 6 October 2010, restraining the defendant from adversely dealing with money standing to the credit of specified bank accounts and any other bank account in her name, and also real property at Abbotsbury which the defendant occupies, until today. The defendant yesterday filed a motion seeking to set aside the order, and the applications have proceeded concurrently. It is the plaintiff who bears the relevant onus of showing that the injunction, which will otherwise lapse, should now be continued.

2 In an application such as the present, the relevant issues are, first, whether the plaintiff has a sufficiently strong case for final relief; secondly, whether there is a sufficient risk of dissipation to the defendant's assets so as to defeat any judgment the plaintiff might ultimately obtain; and, thirdly, considerations relevant to the balance of convenience.

3 So far as the case for final relief is concerned, the evidence boils down at this stage to a word against word contest in respect of an oral arrangement said to be made between the parties. While it is said for the plaintiff that there is ample evidence she has expended substantial funds from her accounts and resources, that is of little utility in circumstances where the evidence does not indicate how or to whom those funds have been paid. The only evidence that it has been paid to the defendant is the plaintiff’s sworn testimony to that effect. The defendant in her affidavit sworn yesterday denied all of the plaintiff’s allegations in that respect. It is impossible on an interim application such as this to resolve where the truth lies between those two positions. On the one hand, the Court ordinarily in such circumstance will accept the plaintiff’s evidence insofar as it is not inherently incredible. On the other hand, in an application for relief of this kind, a more than ordinarily arguable case for final relief is required.

4 I find that the plaintiff has, for present purposes, an arguable case for final relief based on her evidence. On the other hand, in the absence of any documentary material to corroborate it, and in the presence of the sworn denials of the defendant, it cannot be said to be a strongly arguable one.

5 So far as dissipation of assets is concerned, there is evidence, which is undisputed, that the defendant has recently sold two properties. She informs the Court that she has received none of the proceeds, and that all of the proceeds have gone to secured creditors of those properties.

6 In the circumstances, I do not think that the sale of those properties can be regarded as evidence of an intention to defeat the plaintiff’s claim. The only evidence of a threat to engage in such dispositions is the plaintiff’s sworn testimony of statements that she attributes to the defendant which, again, the defendant denies.

7 Again, one would ordinarily, on an application such as this, accept that the plaintiff might be able to establish those allegations, but in the absence of anything more than her contested testimony to that effect it is not a strong case.

8 As to balance of convenience, the risk of prejudice to the plaintiff if the injunction is not continued, is that if her claim proves to be a legitimate one, it may be wholly defeated. So far as prejudice to the defendant is concerned, if the present injunction is not varied to permit expenditure other than that currently authorised under it, she may be forced into default under her own mortgage, but if the order were varied to permit mortgage payments to be made, then there would appear to be little prejudice to the defendant from the continuation of the injunction for a short while, while the parties could each address the current unsatisfactory evidentiary position.

9 While my mind has vacillated somewhat as to the outcome of the present application, it seems to me that the least risk of injustice is if I vary the injunction to permit the additional expenditure on the defendant’s mortgage payments, and otherwise continue the injunction for a short period, to enable each party to adduce further evidence, with a view to an interlocutory hearing on evidence which permits a better view to be formed of the sufficiency of the plaintiff's case.

10 My order is that order one made on 30 September be continued until and including 21 October 2010, subject to the addition to it, after the words "from expending up to $750 per week for ordinary living expenses", of the additional words "and up to $4500 per month for mortgage instalment payments".

11 I direct the plaintiff serve any further evidence upon which she proposes to rely on the interlocutory application for continuation of the injunction by 13 October 2010.

12 I direct that the defendant serve any evidence in respect of the interlocutory application by 19 October 2010.

13 I adjourn the proceedings to 21 October 2010 at 10 am before the duty judge.

14 Costs of the application today will be costs in the proceedings.

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