Charalambous v Burgess - [2017] VSC 550

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2015 06290

LOIS CHARALAMBOUS	Plaintiff
v
RAYMOND CLAUDE BURGESS	Defendant

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JUDGE:	Zammit J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2017
DATE OF RULING:	14 September 2017
CASE MAY BE CITED AS:	Charalambous v Burgess
MEDIUM NEUTRAL CITATION:	[2017] VSC 550

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PRACTICE AND PROCEDURE – Freezing order – Risk of dissipation of assets – Pre-existing liabilities including non-secured loan to third party – Application refused – Order 37A of the Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Coote	Adviceline Injury Lawyers
For the Defendant	Mr C Archibald	Winn Legal

HER HONOUR:

Introduction

By summons dated 31 August 2017 the plaintiff, Lois Charalambous, seeks a freezing order pursuant to Order 37A of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) restraining the defendant, Raymond Claude Burgess, from removing the proceeds of sale or any part thereof of 168 Springs Road, Sedgwick, being the property on Certificate of Title 9752 Folio 246 (‘the property’) from his solicitor’s, Winn Legal, trust account and/or disposing of or dissipating the proceeds of sale of the property, except as provided by the Court.

The application was opposed by the defendant.

The plaintiff relied on the affidavit of Deidre Petrakis, the plaintiff’s solicitor of Adviceline Injury Lawyers (‘the plaintiff’s solicitors’) sworn 31 August 2017. The defendant relied upon the affidavits of the following:

(a) Raymond Claude Burgess sworn 1 September 2017;

(b) Nea Leonie Burgess sworn 1 September 2017;

(c) John Henry Rush sworn 1 September 2017;

(d) Louise Hamby D’Wynn affirmed 1 September 2017; and

(e) Cathryn Tanya Wardrop affirmed 1 September 2017.

Relevant principles

A freezing order is an extraordinary interim remedy made for the purpose of preventing the frustration of the Court’s process by freezing assets where there is a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied. It is not an order to provide security in respect of a judgment.

The Court’s power to make a freezing order arises from the following sources:

· Order 37A of the Rules;[1]

· Practice Note SC Gen 17;[2] and

· Common law.

[1]Rule 37A.06 provides that ‘nothing in the Order limits the inherent, implied or statutory jurisdiction of the Court to make a freezing order or an ancillary order.’

[2]Supreme Court of Victoria, Practice Note SC Gen 17 – Freezing Orders, 30 January 2017 (‘Practice Note SC Gen 17’); R 37A.02(4) provides that in making a freezing order, the Court shall have regard to Practice Note SC Gen 17.

The Court has a discretion as to whether an order should be granted, and if so, on what terms.[3] Factors relevant to the granting of a freezing order include the following:
[3]Robmatjus Pty Ltd v Violet Home Loans Australia Pty Ltd [2007] VSC 165 [52] (Hargrave J).

(a) a freezing order, by its very nature, is…

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 Charalambous v Burgess

Details

AGLC: Charalambous v Burgess [2017] VSC 550
Case: [2017] VSC 550
Decision Date: 14 September 2017

CaseChat Overview and Summary

The applicants, Charalambous, sought a freezing order against the respondent, Burgess, to prevent dissipation of assets. The application was heard by the Supreme Court. The applicants alleged that Burgess was at risk of dissipating his assets to avoid satisfying a judgment debt owed to the applicants. The applicants submitted that Burgess had the means to satisfy the judgment debt but was attempting to dissipate his assets, including through a non-secured loan to a third party.

The court considered the criteria for a freezing order under Order 37A of the Supreme Court (General Civil Procedure) Rules 2005. It noted the applicants’ submissions regarding the risk of dissipation of assets and the existence of pre-existing liabilities. However, the court also examined the respondent's position, including his financial situation and the nature of the alleged non-secured loan. The court found that the applicants had not provided sufficient evidence to meet the threshold for a freezing order, particularly given the respondent's pre-existing liabilities. The court concluded that the applicants had not established a serious issue to be tried.

Accordingly, the application for a freezing order was dismissed. The court emphasised the importance of demonstrating a real risk of dissipation of assets and the need for sufficient evidence to support such an application. The applicants were ordered to pay the respondent's costs of the application.

Orders