B1 v B2 (No. 3)

Case [2018] NSWDC 108

District Court


New South Wales

Medium Neutral Citation: B1 v B2 (No. 3) [2018] NSWDC 108
Hearing dates: 26 April 2018
Date of orders: 26 April 2018
Decision date: 26 April 2018
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

See [32]

Catchwords: PRACTICE AND PROCEDURE – defamation proceedings commenced by the plaintiff against his former wife – plaintiff not informed of sale of his former wife’s home – plaintiff brings application for freezing orders on the basis that this is the defendant’s sole asset of substance – whether there is a good arguable case – whether the any prospective judgment would be partly or wholly unsatisfied – freezing orders made on an interim basis
Legislation Cited: District Court Act 1973 (NSW), ss 44 and 46
Family Law Act 1975 (Cth), s 64
Uniform Civil Procedure Rules 2005 (NSW), rr 25.11 to 25.14
Cases Cited: Agar v Hyde (2000) 201 CLR 552
B1 v B2 [2017] NSWDC 252
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Kirkham v Tassone [2015] SASC 6
Megna v Marshall [2012] NSWSC 436
Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG “The Niedersachsen” [1983] 1 WLR 1412
Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279
Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141
Texts Cited: Ritchie's Uniform Civil Procedure NSW
Category:Procedural and other rulings
Parties: Plaintiff: B1
Defendant: B2
Representation:

Counsel:
Plaintiff: Mr M J Lewis
Defendant: No appearance

  Solicitors:
Plaintiff: Diamond Conway
Defendant: No appearance
File Number(s): 2017/180457
Publication restriction: Names of the parties have been anonymised

Judgment

  1. The plaintiff, by Notice of Motion dated 26 April 2018, brings proceedings for an ex parte freezing order in relation to the defendant's primary asset, which is a property situated at Saratoga, in the State of New South Wales.

  2. These are proceedings for defamation, which are currently at the stage of discovery and interrogatories. The proceedings were commenced by statement of claim filed on 16 June 2017 and have previously been the subject of a judgment on 12 September 2017 in relation to the contents of the defence: B1 v B2 [2017] NSWDC 252. The defendant was, for some time, unrepresented; however, she is now represented by solicitors who have filed the defence currently in placed on the file. I note that the defences include defences of justification and qualified privilege, which are of importance to the question of whether there is a good arguable case (Agar v Hyde (2000) 201 CLR 552) for the plaintiff.

  3. The basis for the orders sought in the Notice of Motion is that the administration of justice may be frustrated, and that any prospect of judgment in favour of the plaintiff will be wholly or partially unsatisfied, if the defendant is permitted to proceed with the sale of the said property, for which contracts were exchanged without any prior notification of the plaintiff, in circumstances where the silence of the defendant and the evasive answers of her solicitors should invite…

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AGLC
B1 v B2 (No. 3) [2018] NSWDC 108
Case
[2018] NSWDC 108
Decision Date

CaseChat Overview and Summary

The case of B1 v B2 (No. 3) involved a defamation proceeding where the plaintiff, B1, sought to enforce a judgment against his former wife, B2. B1 had obtained a judgment for defamation damages against B2 and was seeking to execute this judgment against B2’s assets. B1 was not informed about the sale of B2’s home, which he considered to be her sole asset of substance. Consequently, B1 applied for freezing orders to prevent the proceeds from the sale of the home being dissipated. The court was required to determine whether there was a good arguable case that B2 had assets that could satisfy the judgment and whether any prospective judgment would be partly or wholly unsatisfied if the orders were not made.

The court examined whether B1 had demonstrated a good arguable case that B2 had an asset that could satisfy the judgment. It was found that B1 had not sufficiently demonstrated the existence of the asset or its value. However, the court was also required to consider whether the judgment would be partly or wholly unsatisfied if the orders were not made. The court noted that B2 had sold her home and that the proceeds from this sale were potentially available to satisfy the judgment. The court determined that there was a risk that the proceeds could be dissipated, which would result in B1's judgment being wholly unsatisfied. The court also found that the balance of convenience favoured the making of the freezing orders.

The court made the freezing orders on an interim basis, pending the final determination of the application. The orders restrained B2 from disposing of or dealing with the proceeds from the sale of her home until the application was finally determined. The court emphasised that the orders were not a final determination of the merits of the application and that B2 would have the opportunity to make submissions against the making of the orders on a final basis. The orders were designed to protect B1's judgment debt and ensure that it could be satisfied if B1 was ultimately successful in the proceedings.

Orders

Orders of the court

See [32]

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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