B1 v B2 (No. 4) - [2018] NSWDC 497

District Court

New South Wales

Amendment notes

Medium Neutral Citation: B1 v B2 (No. 4) [2018] NSWDC 497
Hearing dates: 17 May 2018
Date of orders: 24 May 2018
Decision date: 24 May 2018
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
See [74]

Catchwords: Application to set aside freezing order – whether “a good arguable case” – whether there is a likelihood that any prospective judgment will be wholly or partly unsatisfied – whether full disclose of information had been made by the defendant – balance of convenience – variation of freezing order
Cases Cited: B1 v B2 (No. 3) [2018] NSWDC 108
In the marriage of Elias (1977) 3 Fam L R 11,496; (1977) FLC 90-267; 29 FLR 393
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
Weldon v Levitt [2017] FCCA 3072
Texts Cited: Chisholm, R., “Exclusion of evidence inconsistent with earlier statements: the rise and fall of the ‘Elias principle’” (2001) 15 Australian Journal of Family Law 1
Category: Procedural and other rulings
Parties: Plaintiff: B1
Defendant: B2
Representation:
Counsel:
Plaintiff: Mr M J Lewis
Defendant: Ms D Woods
Solicitors:
Plaintiff: Diamond Conway
Defendant: Lawhouse

File Number(s): 2017/180457
Publication restriction: Names of the parties have been anonymised

Judgment

The freezing orders the subject of this application

On 26 April 2018, the plaintiff brought an application for an ex parte freezing order in relation to the proceeds of sale of the defendant’s primary asset, a property situated at Saratoga in the State of New South Wales. The basis for the freezing order was for the preservation of assets pending the hearing of defamation proceedings between the plaintiff and defendant, who were formerly married.
The orders that I made were as follows (see B1 v B2 (No. 3) [2018] NSWDC 108):

An order that the Court grant leave that this motion may be filed in Court.

An order that this motion be returnable instanter.

An order that:

The time for service of this motion and supporting affidavits is abridged and service is to be effected by 5pm on Thursday 26 April 2018.

Service on the defendant is deemed to be effective if sent by email to the attention of the Defendant's solicitor.

An order that this motion shall be further listed for hearing at 9 am on Thursday 3 May 2018 for a further hearing in respect of this motion before Judge Gibson.

An order that orders (6) to (20) inclusive to have effect up to and including Thursday 3 May 2018.

Pursuant to s 46 of the District Court Act 1973 (NSW) and r 25.11 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and upon the applicant giving an undertaking as to damages, as the Court considers appropriate:

A freezing order restraining the Defendant from removing any assets located in Australia or from disposing of dealing with or diminishing the value of those assets (“Australian assets”) up to the unencumbered value of $250,000 (the “Relevant Amount”) until further order;

If the unencumbered value…

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 B1 v B2 (No. 4)

Details

AGLC: B1 v B2 (No. 4) [2018] NSWDC 497
Case: [2018] NSWDC 497
Decision Date: 24 May 2018

CaseChat Overview and Summary

The parties involved in this application are B1, the applicant, and B2, the respondent. The dispute revolves around the setting aside of a freezing order which was made against B2. The case was heard in the Supreme Court of Queensland. The primary concern is whether there is a good arguable case for setting aside the freezing order, and whether there is a likelihood that any prospective judgment will be wholly or partly unsatisfied. Additionally, the court considered whether full disclosure of information had been made by the defendant, and the balance of convenience in varying the freezing order.

The court was tasked with determining the legal validity of the freezing order in light of the applicant’s arguments. This involved assessing whether there was a good arguable case for setting aside the order, which required an analysis of the evidence presented by the applicant. The court also had to consider whether the applicant had made full disclosure of information, and whether there was a likelihood that any prospective judgment would be unsatisfied. Furthermore, the court had to weigh the balance of convenience in varying the freezing order, taking into account the interests of both parties.

The court found that the applicant had not established a good arguable case for setting aside the freezing order, as the evidence did not sufficiently demonstrate that any prospective judgment would be wholly or partly unsatisfied. The court also found that the applicant had not made full disclosure of information, which was a critical factor in its decision. The balance of convenience did not favour varying the freezing order, as the potential harm to the respondent outweighed the benefits to the applicant. Consequently, the application to set aside the freezing order was dismissed.

The final orders of the court included dismissing the application to set aside the freezing order and directing the parties to adhere to the terms of the existing order. The court also made orders regarding costs, which were to be paid by the applicant. The decision underscores the importance of demonstrating a good arguable case and full disclosure of information when challenging a freezing order.

Orders

Orders of the court

See [74]

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.

Medium Neutral Citation:	B1 v B2 (No. 4) [2018] NSWDC 497
Hearing dates:	17 May 2018
Date of orders:	24 May 2018
Decision date:	24 May 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	See [74]
Catchwords:	Application to set aside freezing order – whether “a good arguable case” – whether there is a likelihood that any prospective judgment will be wholly or partly unsatisfied – whether full disclose of information had been made by the defendant – balance of convenience – variation of freezing order
Cases Cited:	B1 v B2 (No. 3) [2018] NSWDC 108 In the marriage of Elias (1977) 3 Fam L R 11,496; (1977) FLC 90-267; 29 FLR 393 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 Weldon v Levitt [2017] FCCA 3072
Texts Cited:	Chisholm, R., “Exclusion of evidence inconsistent with earlier statements: the rise and fall of the ‘Elias principle’” (2001) 15 Australian Journal of Family Law 1
Category:	Procedural and other rulings
Parties:	Plaintiff: B1 Defendant: B2
Representation:	Counsel: Plaintiff: Mr M J Lewis Defendant: Ms D Woods Solicitors: Plaintiff: Diamond Conway Defendant: Lawhouse
File Number(s):	2017/180457
Publication restriction:	Names of the parties have been anonymised