Bonciani v Hawkesford - [2015] WASC 263

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BONCIANI -v- HAWKESFORD [2015] WASC 263

CORAM: PRITCHARD J

HEARD: 24 JUNE 2015

DELIVERED : 24 JUNE 2015

FILE NO/S: CIV 1815 of 2015

BETWEEN: CHAD NICHOLAS BONCIANI
Plaintiff
AND
LEAH JANE HAWKESFORD
Defendant

Catchwords:

Application for a freezing order pursuant to O 52A of the Rules of the Supreme Court 1971 (WA) or for interlocutory injunction - Whether there exists a danger that a prospective judgment would be unsatisfied - Whether the balance of convenience favours the grant of a freezing order

Legislation:

Rules of the Supreme Court 1971 (WA), O 52A

Result:

Applications refused

Category: B

Representation:

Counsel:

Plaintiff: Dr P MacMillan
Defendant: Mr D F Beere

Solicitors:

Plaintiff: TGC Lawyers
Defendant: Lane Buck & Higgins

Cases referred to in judgment:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148
X v Y [2013] WASC 339
PRITCHARD J:
(This judgment was delivered extemporaneously on 24 June 2015 and has been edited from the transcript.)

This is an application by the plaintiff, by an amended chamber summons dated 19 June 2015, by which the plaintiff seeks that a freezing order pursuant O 52A of the Rules of the Supreme Court 1971 (WA) (RSC) be made to restrain the defendant from disposing of, or dissipating in any way, any monies held by her, or by her solicitors on her behalf, purportedly on behalf of the Estate of the late Steven John Bonciani (Estate), including any monies held by the plaintiff in her own personal accounts, and in any other account purportedly being used for, or held on behalf of, the Estate.
Alternatively, the plaintiff seeks an order for an injunction in the following terms:
Until further order of this court, the defendant be restrained and an injunction is hereby granted restraining the defendant from disposing of or dissipating in any way any monies held by her or by [her solicitors] on her behalf, on behalf of or purportedly on behalf of the Estate of the late Steven John Bonciani including any monies held by the defendant in her own personal accounts being used for or on behalf of the Estate.
The application by the plaintiff was supported by the affidavit of Chad Nicholas Bonciani sworn 21 May 2015 and the affidavit of Tihomir Galic sworn 23 June 2015. The application was resisted by the defendant. Both of the parties filed outlines of submissions, and there has been a detailed discussion today of the precise bases for the application.
For the reasons I will outline shortly, I am not satisfied that any basis has been established either for the grant of a freezing order under O 52A RSC, or the grant of an injunction, and I will therefore dismiss the application.

The factual background

The present dispute arises out…

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.

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Details

Case: [2015] WASC 263
Decision Date: 24 JUNE 2015

CaseChat Overview and Summary

In the case of Bonciani v Hawkesford, the applicant sought an interlocutory injunction or a freezing order to prevent the defendant from disposing of assets that might be used to satisfy a judgment that the applicant anticipated would be awarded in a forthcoming proceeding. The application was heard in the Supreme Court of Western Australia, presided over by Justice Beech.

The central legal issues revolved around the applicant's argument that there was a risk that the defendant might dissipate assets, thereby making it impossible to enforce a future judgment. The court had to consider whether the applicant had demonstrated a credible threat to the satisfaction of a prospective judgment and whether the balance of convenience favoured granting the relief sought.

The court found that the applicant had not shown that there was a real danger that the defendant would dissipate assets, nor had the applicant demonstrated a strong likelihood of success in the underlying action. Justice Beech concluded that the balance of convenience did not favour granting the freezing order. Consequently, the application was dismissed.

No further orders were made by the court.

Orders