Bergmann v Dengiz
[2009] QDC 327
•20 October 2009
DISTRICT COURT OF QUEENSLAND
CITATION:
Bergmann v Dengiz [2009] QDC 327
PARTIES:
REGINE BERGMANN
(Applicant)
v
YASSAR TANER DENGIZ
(Respondent)FILE NO/S:
196 of 2009
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
DELIVERED ON:
20 October 2009
DELIVERED AT:
Cairns
HEARING DATE:
9 October 2009
JUDGE:
Bradley DCJ
ORDER:
The application is dismissed.
The applicant pay the respondent’s costs of and incidental to the application as agreed or as assessed on the standard basis.
CATCHWORDS:
EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – INJUNCTIONS TO PRESERVE STATUS QUO AND PROPERTY PENDING DETERMINATION OF RIGHTS – MAREVA INJUNCTIONS – OTHER MATTERS – where the applicant seeks to have the respondent restrained from removing from the jurisdiction or otherwise disposing of or dissipating assets to the extent he retains assets having a net value of not less than $170,000.00 – whether there is a real danger of the respondent’s assets being removed from the jurisdiction, disposed of or diminished in value – whether the balance of convenience supports the making of the orders sought
Property Agents and Motor Dealers Act 2000 (Qld) s 139
Uniform Civil Procedure Rules 1999 (Qld) r 260A
Ninemia Maritime Corporation v Trove GmbH & Co KG (the Niederasachsen) [1994] 1 AllER 398
Paterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319COUNSEL:
M Jonsson of Counsel for the applicant
J Seccull Solicitor for the respondentSOLICITORS:
Miller Harris Lawyers for the applicant
Preston Law for the respondent
This is an application under Rule 260A of the Uniform Civil Procedure Rules for a freezing order to prevent the respondent disposing of or diminishing the value of his assets such that any prospective judgment of this Court would be wholly or partly unsatisfied.
On 14 October the respondent delivered a bundle of documents to the registry of this Court. A covering letter stated the respondent is now acting for himself. The legal representatives for the parties were informed and I understand the parties are happy for me to decide this application on the basis of the material relied upon at the hearing of the application on 9 October. I have not read the material delivered by the respondent on 14 October.
Facts
On 25 August 2009, the applicant commenced an action in this Court against the respondent for $125,000 for commission payable under the terms of an appointment entered into between the parties in October 2007. The respondent appointed the applicant as his real estate agent for the purpose of the sale of his hotel and restaurant at Palm Cove.
Under the terms of the appointment the respondent agreed to pay the applicant commission calculated at 2% of the sale price achieved if (relevantly) –
(a) a contract of sale was entered into with a buyer, whether within the term of the appointment or after it;
(b) the applicant was the effective cause of the sale within the term; and
(c) the contract of sale is not completed and the whole or part only of the deposit is liable to be forfeited.
The respondent entered into a contract of sale of the property on or about 29 August 2008. The purchase price was $6,250,000 with a deposit of $20,000 payable by the purchaser. The applicant contends that she was the effective cause of that sale.
The contract was not completed and the respondent retained the deposit of $20,000.
Pursuant to the terms of the appointment the applicant contends that she is entitled to be paid commission calculated at 2% of $6,250,000, i.e. $125,000.
The respondent denies liability on the grounds that –
(a) the appointment of the applicant was orally terminated by him in or about January 2008;
(b) the applicant acted at all material times as the purchaser’s agent;
(c) the deposit was not liable to be forfeited but was released to the respondent in accordance with a special condition of the contract;
(d) the applicant’s remunerative entitlement is qualified by s 139 of the Property Agents and Motor Dealers Act 2000.
The success or otherwise of the last ground will turn on an interpretation of the meaning of s 139 of the Property Agents and Motor Dealers Act.
In fact the contract entered into for the sale of the property does specifically acknowledge the appointment of the applicant as the respondent’s agent for the purpose of that transaction.
The respondent has now entered into a further contract to sell his hotel and restaurant for the price of $3,600,000 which sale, according to the contract, is due for completion on 23 October 2009 with a possible extended date for completion of 30 October 2009.
Arguments
The applicant seeks to have the respondent restrained from removing from the jurisdiction or otherwise disposing of or dissipating assets to the extent that he retains assets having a net value of not less than $170,000 (the amount of the claim plus estimated interest and costs).
The applicant contends such restraint is necessary as –
1. the respondent has entered into a contract to sell his only substantial asset;
2. the respondent is from Turkey;
3. the respondent has adult children who live in Turkey;
4. the respondent has told the applicant that he intends to leave Australia after he has completed the sale of his Palm Cove property;
5. the respondent has sold all of his boats;
6. the respondent has failed or refused to respond to a written request by the applicant made since the commencement of the action for assurance that there is no danger that any judgment the applicant might obtain in this action might go unanswered as a result of his removal of assets from the jurisdiction or dissipation or diminution of the same.
In an affidavit filed by leave at the hearing of this application, the respondent states that he recently suffered a stroke, has thereby been disabled and has undergone brain surgery. The respondent is unable to walk. Because of his change in health the respondent no longer intends to relocate from Australia. The respondent is an Australian citizen and intends to remain in Cairns even after the sale of his hotel.
In light of the respondent’s evidence regarding his ill health, the applicant does not allege that there is any risk of the respondent absconding from the jurisdiction of the Court but maintains that given his strong connections with Turkey there is a real risk that he would remove assets from the jurisdiction.
The respondent argues that there is no evidence that he intends to flee Australia and in fact there is evidence from him quite to the contrary. The respondent also asserts that there is no evidence that he intends to dispose of assets or send them overseas. He deposes that he intends to acquire a unit to live in in Cairns following the sale of the hotel which is where he is apparently presently living. His 14 year old daughter intends to continue her education in Australia and another adult daughter intends to undertake tertiary studies here. There is certainly no evidence of the respondent having any history of dissipating or disposing of assets to avoid his responsibilities..
The respondent argues that any failure by him to respond to the applicant’s initial demand, to give his solicitors instructions to accept service, or to respond to the applicant’s solicitors’ request for assurance, cannot be relied upon to draw an inference that he would attempt to thwart any court order.
In an affidavit filed on 7 October 2009, the respondent deposes to the fact that in addition to his hotel and restaurant, he is the owner of other assets which he values at a minimum of $163,000. These assets are present in the jurisdiction and consist of four boats, a motor vehicle and other personal property. The respondent argues that such assets are adequate to satisfy any judgment the applicant is likely to receive.
The law
Section 260A of the Uniform Civil Procedure Rules provides as follows:-
“1. The Court may make an order (a freezing order) for the purpose of preventing the frustration or inhibition of the court’s process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied.
2. A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.”
In an application for such an order an applicant needs to establish the following:-
1. A prima facie cause of action against the respondent.
2. A danger that, by reason of the defendant’s absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the applicant if she succeeds, will not be able to have her judgment satisfied.[1]
[1]Paterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319; Gleeson CJ at 321-2
The applicant in this case must satisfy the court that she has “a good arguable case”. I am satisfied on the facts presently before the Court that the applicant does have a good arguable case with respect to her claim against the respondent for commission arising out of the contract dated 29 August 2008. There are both factual and legal issues to be determined.
Secondly, the applicant needs to show a danger of (as is relevant to this application) assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion such that the applicant will not be able to have her judgment (if she is successful in obtaining one) satisfied.
It has been held that the ultimate question is whether, in all the circumstances, it is just and convenient that the injunction be granted.[2]
[2]Ninemia Maritime Corporation v Trove GmbH & Co KG (the Niedersachsen) [1994] 1 AllER 398
Analysis
The granting of a freezing order is of course discretionary, and given the potentially harsh and dramatic consequences for a respondent, a court needs to be cautious when considering such an application. The onus is on the applicant to show that there is a danger or risk of disposal, removal or dissipation of assets and careful consideration needs to be given to the balance of convenience.
Although the applicant delayed commencing proceedings for about eight months after becoming aware of her entitlement, I do not consider such delay to be fatal this application.
Although the respondent has disposed to the fact that he is selling his hotel and restaurant because of financial difficulties, he nevertheless deposes to being the owner of other assets. There is no evidence before me as to the respondent’s debts or financial obligations.
The matters to which the applicant deposes may perhaps raise a suspicion that the respondent may take action to thwart any potential court order. The risk alleged however is speculative only and there is no evidence before me of any behaviour on the part of the respondent in the past which would support a finding that there is a real risk that he will take action which may thwart any court order.
It was established at the hearing of this application that the substantive claim is in a position to be set down for hearing at the next civil sittings in Cairns which commence on 23 November 2009 and in fact I gave directions to both parties in that regard on 9 October 2009.
In the circumstances, I am not satisfied that the applicant has discharged the onus of proving that there is a real danger of the respondent’s assets being removed from the jurisdiction, disposed of or diminished in value. The balance of convenience does not support the making of the orders sought. The application is dismissed. I order that the applicant pay the respondent’s costs of and incidental to the application as agreed or as assessed on the standard basis.
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