Care A2 Plus Pty Ltd v Pichardo

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Care A2 Plus Pty Ltd v Pichardo [2023] NSWCA 156
Hearing dates: 19 June 2023
Date of orders: 7 July 2023
Decision date: 07 July 2023
Before: Simpson AJA
Decision:

(1) Notice of motion dismissed;

(2) The applicants pay the respondent’s costs.

Catchwords:

CIVIL PROCEDURE – interim preservation – freezing orders – application for freezing order pending appeal – UCPR r 25.11 and r 25.14 – good arguable case not established – danger that prospective judgment will be wholly or partly unsatisfied not established

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 25.11, 25.14

Cases Cited:

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Frigo v Culhaci [1998] NSWCA 88

In the matter of DCA Enterprises Pty Ltd [2023] NSWSC 11

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279

Tomasetti v Brailey [2012] NSWCA 6

Category:Procedural rulings
Parties: Care A2 Plus Pty Ltd (First Applicant)
Care A2 Australia Pty Ltd (Second Applicant)
Karla Patricia Pichardo (Respondent)
Representation:

Counsel:
A E Butt (Applicants)
A McQuillen (Respondent)

Solicitors:
Nelson McKinnon Lawyers (Applicants)
Metri Legal (Respondent)
File Number(s): 2023/57428
 Decision under appeal 
Court or tribunal:
Supreme Court of NSW
Jurisdiction:
Equity Division
Citation:

[2023] NSWSC 11

Date of Decision:
23 January 2023
Before:
Black J
File Number(s):
2021/278723

HEADNOTE

[This headnote is not to be read as part of the judgment]

JUDGMENT

  1. SIMPSON AJA: By notice of motion filed in this Court on 5 June 2023 the applicants (Care A2 Plus Pty Ltd and Care A2 Australia Pty Ltd) seek, pursuant to UCPR 25.11, an order restraining the respondent (Karla Pichardo) from removing from Australia or otherwise disposing of, dealing with or diminishing the value of any of her assets in Australia up to the unencumbered value of $2,165,000 (“freezing order”). The freezing order is sought pending the outcome of an appeal filed by the applicants against orders made by Black J (the primary judge) in the Equity Division of the Supreme Court on 23 January 2023: In the matter of DCA Enterprises Pty Ltd [2023] NSWSC 11.

  2. UCPR 25.11(1) states that the purpose of a freezing order is:

“… 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.”

  1. UCPR 25.14 relevantly provides:

“(1)   This rule applies if –

…

(b)   an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in –

(i)   the court …

…

(4)   The court may make a freezing order … against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that…

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Details
Case
[2023] NSWCA 156
Decision Date

CaseChat Overview and Summary

Care A2 Plus Pty Ltd (the applicant) sought an interim freezing order against Mr Pichardo (the respondent) pending the determination of an appeal. The application was heard by Simpson AJA in the Supreme Court of New South Wales. The dispute concerned the applicant's contention that a freezing order was necessary to prevent the respondent from dissipating assets, thereby frustrating the potential success of an appeal.

The primary legal issues before the court were whether the applicant had established a "good arguable case" in relation to the appeal, and whether there was a demonstrable danger that any prospective judgment in favour of the applicant would be wholly or partly unsatisfied if the order were not made. These issues were to be determined by reference to the Uniform Civil Procedure Rules 2005 (NSW) rr 25.11 and 25.14.

Simpson AJA found that the applicant had failed to establish either of the necessary preconditions for the grant of a freezing order. Specifically, the court concluded that a good arguable case had not been demonstrated, nor had the applicant satisfied the court that there was a real risk of dissipation of assets that would render a future judgment nugatory. Consequently, the application for the freezing order was dismissed. The applicants were ordered to pay the respondent's costs of the application.

Orders

Orders of the court

(1) Notice of motion dismissed;

(2) The applicants pay the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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