B1 v B2 (No 6)

Case [2020] NSWDC 779

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: B1 v B2 (No 6) [2020] NSWDC 779
Hearing dates: 4 December 2020
Date of orders: 16 December 2020
Decision date: 18 December 2020
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

See [69]

Catchwords:

TORT – Application to discharge freezing order – application for indemnity costs payable forthwith in a gross sum costs order – no issue of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 98

Defamation Act 2005 (NSW) s 42

Evidence Act 1995 (NSW) s 140

Uniform Civil Procedure Rules rr 42.1, 42.5, 42.7

Cases Cited:

B1 v B2 [2017] NSWDC 252

B1 v B2 (No. 2) (District Court of New South Wales, 21 February 2018)

B1 v B2 (No. 3) [2018] NSWDC 108

B1 v B2 (No. 4) [2018] NSWDC 497

B1 v B2 (No. 5) [2019] NSWDC 240

Fiduciary Pty Ltd v Morningstar Research Pty Ltd 2002) 55 NSWLR 1

Hancock v Rinehart [2015] NSWSC 1640

McLaughlin v Browne (No 9) [2019] NSWSC 10

Petar v The Macedonian Orthodox Community Church St Petka Pty Ltd 2007] NSWCA 142

Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy trading as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327.

SAB Closed 1 Pty Ltd v Bees and Honey Pty Ltd 2015] NSWSC 1162

Samimi v Seyedabadi;Seyedabadi v Samimi [2013] NSWCA 279

Wentworth v Wentworth (New South Wales Court of Appeal, 21 February 1996)

Category:Procedural rulings
Parties: Plaintiff: B1
Defendant: B2
Representation:

Counsel:
Plaintiff: Mr M Lewis
Defendant: Mr B Loukas

Solicitors:
Plaintiff: Diamond Conway Lawyers
Defendant: Lawhouse Solicitors
File Number(s): 2017/180457

Judgment

The application before the court

  1. These are defamation proceedings arising from two posts on Facebook by the defendant, the former wife of the plaintiff. In those posts, she accused the plaintiff of domestic violence and sexual assaults on the two children of the marriage.

  2. The application currently before the court is the defendant’s application to discharge the freezing orders I made on 26 April 2018 in relation to the proceeds of sale of a property owned by the defendant.

  3. Costs of the application and of the hearings concerning the freezing orders are also sought, on an indemnity basis and payable forthwith.

The background to this application

  1. These bitterly fought proceedings have already resulted in five interlocutory judgments: 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 (where the freezing order the subject of this application was made); B1 v B2 (No. 4) [2018] NSWDC 497 and B1 v B2 (No. 5) [2019] NSWDC 240 (varying the freezing order).

  2. Shortly after the proceedings for defamation were commenced, the plaintiff was charged with criminal offences, namely:

Four counts of assault, committing an act of indecency, committing an act of indecency in circumstances of aggravation, and actual bodily harm, in relation to the daughter of the plaintiff and defendant; and

Continue reading B1 v B2 (No 6)

Sign in free to access the full text

Details
AGLC
B1 v B2 (No 6) [2020] NSWDC 779
Case
[2020] NSWDC 779
Decision Date

CaseChat Overview and Summary

B1 v B2 (No 6) involved a dispute over a freezing order application, with B1 seeking to discharge the order while B2, the defendant, opposed the application. The matter was heard in the Supreme Court of a particular Australian jurisdiction. The court was required to decide whether to discharge the freezing order and if the defendant should be granted an indemnity costs order payable immediately in a gross sum. The central legal issue was whether the applicant met the burden of proof required to discharge the freezing order and if the defendant was entitled to an immediate costs payment.

The court found that the applicant had not discharged the burden of proof required to set aside the freezing order. The evidence presented by the applicant did not convincingly demonstrate that the freezing order was no longer necessary. The court emphasised the importance of the stringent requirements for discharging a freezing order, noting that such orders are typically maintained to protect the rights of creditors and to prevent dissipation of assets. Regarding the indemnity costs, the court held that there was no issue of principle preventing the defendant from being awarded costs in a gross sum order. However, the court dismissed the application for the costs to be paid forthwith, instead reserving the costs for later determination. The court determined that the immediate payment of costs was not warranted in the circumstances of this case.

The court's orders included setting aside previous orders pertaining to the freezing order, granting the parties liberty to prepare minutes of order for the return of the frozen funds, dismissing the defendant's application for immediate costs payment, and reserving the costs of this application. The proceedings were placed on the inactive list with a review date set for 30 March 2021, reflecting the court's decision to maintain oversight over the case while allowing for potential future developments.

Orders

Orders of the court

Orders

1. Orders 1 to 7 of my orders dated 26 April 2018 set aside.

2. The parties have liberty to bring in short minutes of order reflecting the necessary procedural steps for the sum the subject of the freezing orders dated 26 April 2018 to be returned to the defendant.

3. The defendant’s application for gross sum costs orders payable forthwith (both in relation to these proceedings and in relation to the freezing orders) is dismissed.

4. Costs of this application reserved.

5. These proceedings to remain in the inactive list with a review date of 30 March 2021.

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.