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Campbell v Watson

Campbell v Watson

Case [2024] NSWDC 509 4 October 2024

Interlocutory Orders

Freezing Orders

Interim Relief

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Campbell v Watson [2024] NSWDC 509
Hearing dates: 4 October 2024
Date of orders: 4 October 2024
Decision date: 04 October 2024
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
In relation to the Notice of Motion filed on 3 October 2024:
(1) Leave is granted to the plaintiff to file in court an Amended Notice of Motion dated 4 October 2024.
(2) Leave to the plaintiff to amend Prayer 1 for relief of the Amended Notice of Motion dated 4 October 2024 by changing the date from 8 October 2024 to 9 October 2024.
(3) Orders in accordance with the Orders signed and dated 4 October 2024 by Dicker DCJ and placed with the papers.
(4) Listed for directions on 14 October 2024 before the Civil List Judge at 9:30am.

Catchwords:
FREEZING ORDERS – barrister’s fees – fruits of the action lien – whether risk justifies interim order

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bell v Hartnett Lawyers (No 2) [2021] NSWSC 1270
Benjamin & Khoury Pty Ltd v Rahme [2022] NSWSC 766
Care A2 Plus Pty Ltd v Pichardo [2023] NSWCA 156
Firth v Centrelink & Anor (2002) 55 NSWLR 451
Frigo v Culhaci [1998] NSWCA 88
Hunt Leather Pty Ltd v Transport for NSW (No 2) [2023] NSWSC 1243
In the matter ofBenjamin & Khoury Pty Limited [2023] NSWSC 756
KR Properties Global Pty Ltd (ACN 602 693 729) t/as AK Properties Group (ABN 62 971 068 965) v Kazzi [2024] NSWCA 141
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325
Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279
Severstal Export GmbH v Bhushan Steel Ltd [2013] NSWCA 102; (2013) 84 NSWLR 141
Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd [2016] NSWCA 28

Category: Consequential orders
Parties: Ian Garth Campbell
Dale Cameron Watson
Representation:
Counsel:
I G Campbell (In Person) (Plaintiff)
Solicitors:

File Number(s): 2024/00366245
Publication restriction: No

JUDGMENT – EX TEMPORE

Before the Court is an ex parte application by the plaintiff, who is a barrister, for freezing orders under Part 25 of the Uniform Civil Procedure Rules 2005 (NSW).
Under Part 25.11, the Court may make a freezing order as defined in Parts 25.10 and 25.11 “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.” The more detailed requirements for a freezing order are set out in Part 25.14 of the Uniform Civil Procedure Rules. I will deal with the requirements seriatim in relation to this case shortly.
The background to the matter is that the applicant plaintiff barrister acted for the defendant in Federal Court proceedings which are complex and involve entitlements which the defendant allegedly had concerning an invention.
Before the Court as Exhibit A on the application is a deed of settlement dated August 2024 between the…

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.

Continue reading Campbell v Watson

Details

AGLC: Campbell v Watson [2024] NSWDC 509
Case: [2024] NSWDC 509
Decision Date: 04 October 2024

CaseChat Overview and Summary

In the case of Campbell v Watson, the plaintiff sought to modify the terms of a freezing order that had been previously granted by the court. The dispute involves financial matters and the enforcement of the freezing order against the defendant's assets. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the plaintiff was entitled to an interim order for the payment of the defendant's legal costs, specifically the fees of a barrister, under a fruits of the action lien. The plaintiff argued that the risk of loss if the interim order was not granted outweighed any potential prejudice to the defendant. The court was required to determine whether the circumstances of the case justified the imposition of such an interim order.

The court considered the principles governing fruits of the action liens and the balance of convenience test. It examined the evidence presented regarding the risk of loss and the potential prejudice to the defendant. The court found that the risk of loss was significant and that the defendant had not demonstrated sufficient prejudice to justify denying the plaintiff's application for the interim order. Consequently, the court granted the plaintiff's request for the payment of the defendant's legal costs, including the fees of the barrister.

The final orders included granting leave for the plaintiff to file an amended notice of motion, modifying the date for the hearing, and confirming the orders previously signed by the judge. The case was listed for further directions.

Orders

Orders of the court

In relation to the Notice of Motion filed on 3 October 2024:

(1) Leave is granted to the plaintiff to file in court an Amended Notice of Motion dated 4 October 2024.

(2) Leave to the plaintiff to amend Prayer 1 for relief of the Amended Notice of Motion dated 4 October 2024 by changing the date from 8 October 2024 to 9 October 2024.

(3) Orders in accordance with the Orders signed and dated 4 October 2024 by Dicker DCJ and placed with the papers.

(4) Listed for directions on 14 October 2024 before the Civil List Judge at 9:30am.

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

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Campbell v Watson [2024] NSWDC 509

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

KR Properties Global Pty Ltd (ACN 602 693 729) t/as AK Properties Group (ABN 62 971 068 965) v Kazzi
[2024] NSWCA 141 Para 19

…In KR Properties Global Pty Ltd (ACN 602 693 729) t/as AK Properties Group (ABN 62 971 068 965) v Kazzi [2024] NSWCA 141 Mitchelmore JA set out the principles in significant detail in paragraphs 13 and following. Her Honour repeated that a freezing order was an “exceptional” or “drastic” remedy and that there were…
Hunt Leather Pty Ltd v Transport for NSW (No 2)
[2023] NSWSC 1243 Para 26

…avies J; In the matter of Benjamin & Khoury Pty Limited [2023] NSWSC 756 at paragraph 20 per Black J; Hunt Leather Pty Ltd v Transport for NSW (No 2) [2023] NSWSC 1243 per Cavanagh J. That matter went on appeal in relation to his Honour's final judgment but as far as I am aware the approval and following of Firth wa…
Care A2 Plus Pty Ltd v Pichardo
[2023] NSWCA 156 Para 18

…Of relevance are two recent statements by Court of Appeal judges of the general principles. In Care A2 Plus Pty Ltd v Pichardo [2023] NSWCA 156 Simpson AJA emphasised at paragraph 6 that a freezing order is an “exceptional” or “drastic” remedy which should not be granted lightly. Her Honour referred to the need to…
In the matter of Benjamin & Khoury Pty Ltd
[2023] NSWSC 756 Para 26

…recent cases: Benjamin & Khoury Pty Ltd v Rahme [2022] NSWSC 766 at paragraphs 71 to 73 per Davies J; In the matter of Benjamin & Khoury Pty Limited [2023] NSWSC 756 at paragraph 20 per Black J; Hunt Leather Pty Ltd v Transport for NSW (No 2) [2023] NSWSC 1243 per Cavanagh J. That matter went on appeal in relation…
Benjamin & Khoury Pty Ltd v Rahme
[2022] NSWSC 766 Para 26

…he case of Firth has been referred to with approval or referred to without disapproval in a number of recent cases: Benjamin & Khoury Pty Ltd v Rahme [2022] NSWSC 766 at paragraphs 71 to 73 per Davies J; In the matter of Benjamin & Khoury Pty Limited [2023] NSWSC 756 at paragraph 20 per Black J; Hunt Leather Pty Lt…
Bell v Hartnett Lawyers (No 2)
[2021] NSWSC 1270 Para 26

…far as I am aware the approval and following of Firth was not questioned. I also mention the decision of Slattery J in Bell v Hartnett Lawyers (No 2) [2021] NSWSC 1270 at paragraph 87.…
Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd
[2016] NSWCA 28 Para 27

…I desired to assure myself that there was appellate approval of the principle and in Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd [2016] NSWCA 28 the Court of Appeal considered a number of matters relating to costs issues. The primary judgment was given by Ward JA with whom Macfarlan and Gleeson JJA agr…
Samimi v Seyedabadi; Seyedabadi v Samimi
[2013] NSWCA 279 Para 17

…risk which in the circumstances of a particular case justifies an asset preservation or freezing order: see Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279 per McColl JA at paragraphs 61 to 75; Severstal , above, at paragraphs 57 to 59; and also Frigo v Culhaci [1998] NSWCA 88.…
Severstal Export GmbH v Bhushan Steel Ltd
[2013] NSWCA 102 Para 17

…It is made clear by the Court of Appeal in Severstal Export GmbH v Bhushan Steel Ltd [2013] NSWCA 102; (2013) 84 NSWLR 141 that a freezing order is a drastic or exceptional remedy and one that should not be granted lightly: see paragraph 57. Further, the real danger asserted must be established by evidence and not…
Firth v Centrelink & Anor (No2)
[2002] NSWSC 850 Para 24

…d the entitlement of the plaintiff if that is established. The plaintiff relies in particular on the decision of Campbell J as his Honour then was in Firth v Centrelink & Anor (2002) 55 NSWLR 451 and in particular the analysis in paragraph 35.…
Firth v Centrelink
[2002] NSWSC 564 Para 24

…laintiff if that is established. The plaintiff relies in particular on the decision of Campbell J as his Honour then was in Firth v Centrelink & Anor (2002) 55 NSWLR 451 and in particular the analysis in paragraph 35.…
Frigo v Culhaci
[1998] NSWCA 88 Para 17

…abadi; Seyedabadi v Samimi [2013] NSWCA 279 per McColl JA at paragraphs 61 to 75; Severstal , above, at paragraphs 57 to 59; and also Frigo v Culhaci [1998] NSWCA 88.…
Hadid v Lenfest Communications Inc
[1996] FCA 675 Para 21

…rcumstances of a particular case justifies” the order. There was a reference to the Court of Appeal in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325 where Gleeson CJ, later Chief Justice of the High Court, said that:…
Patterson v BTR Engineering (Aust) Ltd
(1989) NSWLR 319 Para 21

…ient likelihood of risk which in the circumstances of a particular case justifies” the order. There was a reference to the Court of Appeal in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325 where Gleeson CJ, later Chief Justice of the High Court, said that:…

Legislation cited in this decision · 1

Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Campbell v Watson [2024] NSWDC 509
Hearing dates:	4 October 2024
Date of orders:	4 October 2024
Decision date:	04 October 2024
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	In relation to the Notice of Motion filed on 3 October 2024: (1) Leave is granted to the plaintiff to file in court an Amended Notice of Motion dated 4 October 2024. (2) Leave to the plaintiff to amend Prayer 1 for relief of the Amended Notice of Motion dated 4 October 2024 by changing the date from 8 October 2024 to 9 October 2024. (3) Orders in accordance with the Orders signed and dated 4 October 2024 by Dicker DCJ and placed with the papers. (4) Listed for directions on 14 October 2024 before the Civil List Judge at 9:30am.
Catchwords:	FREEZING ORDERS – barrister’s fees – fruits of the action lien – whether risk justifies interim order
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Bell v Hartnett Lawyers (No 2) [2021] NSWSC 1270 Benjamin & Khoury Pty Ltd v Rahme [2022] NSWSC 766 Care A2 Plus Pty Ltd v Pichardo [2023] NSWCA 156 Firth v Centrelink & Anor (2002) 55 NSWLR 451 Frigo v Culhaci [1998] NSWCA 88 Hunt Leather Pty Ltd v Transport for NSW (No 2) [2023] NSWSC 1243 In the matter ofBenjamin & Khoury Pty Limited [2023] NSWSC 756 KR Properties Global Pty Ltd (ACN 602 693 729) t/as AK Properties Group (ABN 62 971 068 965) v Kazzi [2024] NSWCA 141 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325 Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279 Severstal Export GmbH v Bhushan Steel Ltd [2013] NSWCA 102; (2013) 84 NSWLR 141 Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd [2016] NSWCA 28
Category:	Consequential orders
Parties:	Ian Garth Campbell Dale Cameron Watson
Representation:	Counsel: I G Campbell (In Person) (Plaintiff) Solicitors:
File Number(s):	2024/00366245
Publication restriction:	No