B1 v B2 (No. 5)

Case [2019] NSWDC 240

District Court


New South Wales

Medium Neutral Citation: B1 v B2 (No. 5) [2019] NSWDC 240
Hearing dates: 11 April 2019
Date of orders: 18 April 2019
Decision date: 18 April 2019
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) The plaintiff and defendant are to bring in Short Minutes of Order reflecting the agreed form of variation of the freezing order of 24 May 2019 to enable the defendant to use the whole or part of the sum currently frozen for the purchase of real estate in her name, with liberty to apply in the event that the form of order cannot be agreed upon.
(2) Pursuant to s 67 Civil Procedure Act 2005 (NSW), these proceedings are stayed until further order.
(3) Matter placed in the Inactive List with a notional review date of Thursday 31 October 2019 in the Defamation List.
(4) Costs reserved.

Catchwords: PRACTICE AND PROCEDURE – plaintiff in defamation proceedings convicted of conduct the subject of the matter complained of – application by plaintiff for stay of proceedings pending appeal – application by defendant for the setting aside of freezing orders in relation to her assets – proceedings stayed and assets order varied to permit the defendant to use the funds for her stated interest in buying real estate
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-62 and 67
Crimes Act 1900 (NSW), ss 61, 61M, 61O
Defamation Act 2005 (NSW), s 42
Cases Cited: B1 v B2 [2017] NSWDC 252
B1 v B2 (No. 2) (District Court of New South Wales, Gibson DCJ, 12 February 2018)
B1 v B2 (No. 3) [2018] NSWDC 108
B1 v B2 (No. 4) [2018] NSWDC 497
CH v R [2019] NSWCCA 68
Chami v R [2019] NSWCCA 63
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772
Creak v Channel Seven Sydney Pty Ltd [2014] NSWSC 201
Giovanni Romano v R (a pseudonym) [2019] NSWCCA 49
Gwardys v R [2019] NSWCCA 62
Lees v R [2019] NSWCCA 65
McClelland v R [2019] NSWCCA 59
McLachlan v Browne (No 9) [2019] NSWSC 10
McMahon v Gould (1982) 7 ACLR 202
Ninemia Maritime Corp v Trave GmbH & Co KG (The Niedersachsen) [1984] 1 All ER 398
R v Baker [2019] NSWCCA 58
Rayney v State of Western Australia [2019] WASCA 23
RH v R [2019] NSWCCA 64
Roos v R [2019] NSWCCA 67
Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279
Yondjo v R [2019] NSWCCA 57
Category:Procedural and other rulings
Parties: Plaintiff: B1
Defendant: B2
Representation:

Counsel:
Plaintiff: Mr M J Lewis
Defendant: Mr K Durant (solicitor)

  Solicitors:
Plaintiff: Diamond Conway
Defendant: Lawhouse
File Number(s): 2017/180457
Publication restriction: Names of the parties have been anonymised

Judgment

The applications before the court

  1. There are two applications before the court:

  1. The plaintiff, who is currently in custody following jury verdicts of guilty on 20 December 2018, brings an application for a stay of proceedings pending his appeal to the New South Wales Court of Criminal Appeal;…

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Details
AGLC
B1 v B2 (No. 5) [2019] NSWDC 240
Case
[2019] NSWDC 240
Decision Date

CaseChat Overview and Summary

In the matter of B1 v B2 (No. 5), the plaintiff, B1, sought a stay of defamation proceedings against the defendant, B2, pending the outcome of an appeal against a conviction for conduct that forms the basis of the defamation complaint. B2 applied for the freezing orders in relation to her assets to be set aside. The dispute came before the Supreme Court of New South Wales, which was required to determine the appropriate course of action regarding the proceedings and the assets orders.

The legal issues before the court included whether the defamation proceedings should be stayed pending the appeal and whether the freezing orders should be set aside or varied to allow B2 to use her funds for a stated interest in buying real estate. The court needed to balance the interests of both parties, considering the potential impact on the proceedings and the fairness of the orders in light of the circumstances.

The court decided to stay the proceedings in accordance with section 67 of the Civil Procedure Act 2005 (NSW) until further order. It also varied the freezing orders to permit B2 to use the frozen funds for the purchase of real estate, as she had demonstrated a genuine intention to use the funds for that purpose. The court noted that the proceedings would be placed in the Inactive List with a notional review date of 31 October 2019. The matter was to be reviewed in the Defamation List, and the costs were reserved for later determination.

The court issued orders to reflect the agreed form of variation of the freezing order, allowing B2 to use the frozen funds for real estate purchases. It also stayed the defamation proceedings pending the outcome of the appeal and placed the matter in the Inactive List with a notional review date. The costs were reserved pending further determination.

Orders

Orders of the court

(1) The plaintiff and defendant are to bring in Short Minutes of Order reflecting the agreed form of variation of the freezing order of 24 May 2019 to enable the defendant to use the whole or part of the sum currently frozen for the purchase of real estate in her name, with liberty to apply in the event that the form of order cannot be agreed upon.

(2) Pursuant to s 67 Civil Procedure Act 2005 (NSW), these proceedings are stayed until further order.

(3) Matter placed in the Inactive List with a notional review date of Thursday 31 October 2019 in the Defamation List.

(4) Costs reserved.

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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