Care A2 Plus Pty Ltd v Pichardo - [2023] NSWCA 156

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

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.
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.”

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…

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: [2023] NSWCA 156
Decision Date: 07 July 2023

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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