Brown v Kells

[2009] NSWSC 648

CITATION:	Brown v Kells [2009] NSWSC 648 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	26 June 2009
JUDGMENT DATE :	26 June 2009
JUDGMENT OF:	Price J at 1
EX TEMPORE JUDGMENT DATE:	26 June 2009
DECISION:	Freezing order declined. Notice of Motion adjourned to Thursday 9 July at 9am before the Registrar for mention. Direct any affidavits on behalf of the defendant be filed and served on or before 4pm on 8 July 2009. Costs of today will be costs in the motion.
CATCHWORDS:	Civil Procedure - application freezing order
CATEGORY:	Procedural and other rulings
CASES CITED:	Print Management Australia Pty Limited v Pasupati [2008] NSWSC 342
PARTIES:	John Brown Brett Kells
FILE NUMBER(S):	SC 10910/09
COUNSEL:	R Lovas (Plaintiff)
SOLICITORS:	M Lalji (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

26 June 2009

2009/10910 John BROWN v Brett KELLS

JUDGMENT

1 HIS HONOUR: The plaintiff, by a notice of motion filed on 22 January 2009, seeks an order for summary judgment in respect of paragraph 1 of the relief claimed in the statement of claim, and an order in the terms of the draft order attached. The draft order is a freezing order.

2 In view of the fact that the defendant was served with the notice of motion, as I understand it, two days ago and resides in Denman New South Wales, I am of the view that it is in the interests of the dictates of justice that the notice of motion be adjourned for two weeks to enable the defendant to prepare his opposition to the application for summary judgment. What the debate has involved this afternoon is whether or not it is appropriate to make a freezing order.

3 As I understand it, the dispute between the parties involves a share farming agreement which it is said was terminated. Since the time of the effective termination so far as the plaintiff is concerned, namely 9 January 2009, the plaintiff claims that he has incurred considerable expense and damages.

4 Mr Lovas in his helpful submissions has indicated that the heads of damage include the failure by the defendant to remove his Holstein-Friesian dairy cattle from the property, the limit upon the carrying capacity of the property because of that, the cost of agistment and replacement costs of dry cows. There is evidence in the affidavit material of the damage which the plaintiff claims to have sustained. Furthermore, there is evidence of the defendant's apparent impecuniosity.

5 The plaintiff argues that if a freezing order is not made there is a danger that a prospective judgment of the court in favour of the plaintiff will be wholly or partly unsatisfied.

6 Mr Lalji, who appears for the defendant as city agent for the defendant's solicitors, has submitted that the plaintiff has not established a genuine apprehension that the defendant will dispose of the cattle. The plaintiff says on the other hand that the defendant, when he understands that a judgment may be obtained, will be encouraged to remove the cattle from the property.

7 In Print Management Australia Pty Limited v Pasupati [2008] NSWSC 342 Barrett J said at 14:

“A freezing order is warranted only if, in the words of Bryson J in Acquasun Pty Limited v Coverdale Ram Pty Limited [2000] NSWSC 1146, there has been, 'conduct on the part of the defendant which can reasonably be interpreted as potentially having the effect of frustrating the ordinary processes of the court and the enforcement of its judgments or of being intended to do so or of being in any way evasive indicating dishonesty or otherwise indicating actually or potentially that the assets of the company have been or will be dealt with in an irregular way’."

8 I am not satisfied on the present evidence that there is a danger that a prospective judgment of the Court will be wholly or partly unsatisfied. It seems to me that the statement of claim was served on the defendant some time ago and the defendant has done nothing to remove his cattle from the land. A two-week adjournment, to my mind, will not encourage him to remove the cattle if he has not done so to date. Indeed, it has been his failure to remove the cattle which has founded the present proceedings. Furthermore, to my uneducated mind, it seems to me that it would be particularly difficult for the defendant to remove the cattle by stealth. Accordingly, I do not propose to make the freezing order.

9 The notice of motion is adjourned to Thursday 9 July at 9am before the Registrar for mention. I direct that any affidavits to be filed on behalf of the defendant are filed and served on or before 4pm on 8 July 2009. Costs of today will be costs in the motion.

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10/07/2009 - typographical error on cover sheet - Paragraph(s) n/a