Belmont Tyre & Auto Service Centre Pty Ltd v Ampak Holdings Pty Ltd

Belmont Tyre & Auto Service Centre Pty Ltd sought to obtain a freezing order against Ampak Holdings Pty Ltd, the owner of a commercial property that was the subject of a lease assignment in 2012. The plaintiff claimed that Ampak had engaged in misleading and deceptive conduct and unconscionable conduct in relation to the lease assignment. The plaintiff also sought a freezing order against the second defendant, Darrell Crouch & Associates Pty Ltd, who was the leasing agent for Ampak in 2012. The application was dismissed by Seaward J.

The jurisdictional requirements for a freezing order under O 52A of the Rules of the Supreme Court 1971 are that the plaintiff must demonstrate a good arguable case, that the defendant's assets might be disposed of, dealt with or diminished in value, and that there is a danger that a prospective judgment will be wholly or partly unsatisfied. The plaintiff established a good arguable case, albeit a weak one. However, the plaintiff failed to demonstrate that there was a danger that a prospective judgment would be unsatisfied because Ampak's assets might be disposed of, dealt with or diminished in value. While Ampak proposed to withdraw funds from a trust account, there was no evidence that all of the funds would be spent or that the amount would be sufficient to frustrate any future judgment against Ampak.

Even if the jurisdictional requirements were met, the court would not exercise its discretion to grant the freezing orders. The plaintiff's case was weak and there was no evidence that Ampak intended to use the funds to avoid any future judgment. Ampak owned other property that could be used to satisfy any judgment. The discretionary factors in favour of granting the freezing orders were outweighed by those against. The application was dismissed.