Cook v Cook

[2023] NSWSC 1132

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Cook v Cook [2023] NSWSC 1132

Hearing dates:

15 September 2023

Date of orders:

15 September 2023

Decision date:

15 September 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) The Notice of Motion dated 15 September 2023 be returnable instanter.

(2) The time for service of the Notice of Motion and the supporting affidavits be abridged to 2:00 pm on 15 September 2023.

(3) The plaintiff is to serve a copy of the Notice of Motion, the supporting affidavits and these orders on the first defendant by email to:
a. [email protected]
b. [email protected]
c. [email protected]

(4) Pursuant to r 25.14 of the Uniform Civil Procedure Rules 2005 (NSW) and/or the inherent jurisdiction of the Court, and until 5:00 pm on 20 September 2023, the Court makes a freezing order against the first defendant in the form annexed to these orders and marked “A”.

(5) The Notice of Motion be further returnable at 10:00 am on 20 September 2023.

(6) Liberty to the parties to apply on 24 hours’ notice.

(7) Costs reserved.

(8) These orders be entered forthwith.

Catchwords:

CIVIL PROCEDURE — Freezing orders – Freezing order made pursuant to r 25.14 of the Uniform Civil Procedure Rules 2005 (NSW)

Legislation Cited:

Uniform Civil Procedure Rules2005 (NSW) r 25.14

Category:

Principal judgment

Parties:

Bradley Lawrence Cook (Plaintiff)
Phillip Donald Cook (First Defendant)
Kathryn Michelle Bays-Cook (Second Defendant)

Representation:

Counsel:
J Anderson (Plaintiff)
No appearance

Solicitors:
Henry William Lawyers (Plaintiff)
No appearance

File Number(s):

2023/245606

JUDGMENT

1. By a Notice of Motion filed on 15 September 2023 the plaintiff, Bradley Lawrence Cook, sought a freezing order against the first defendant, Phillip Donald Cook. In respect of the Notice of Motion, the plaintiff relied upon his affidavit of 27 July 2023 and an accompanying exhibit marked BLC-1, together with the affidavits of Nathan Larman-Yalda sworn on 14 and 15 September 2023 respectively.

2. In the substantive proceedings in this Court, the plaintiff sought the recognition and enforcement of a judgment for US $1,633,622 obtained against the defendants in the Superior Court for the State of Washington in and for the County of Snohomish in the United States of America (“Washington Proceedings”). The application for recognition is listed for hearing on 29 November 2023. I accept on the evidence that the judgment debt is wholly unsatisfied.

3. On 14 September 2023, the plaintiff’s solicitors searched PEXA and located an active workspace for the land title reference 16/SP5865. That title search corresponded with the real property situated at Unit 16/135-137 Coogee Bay Road, Coogee, which is owned by the first defendant, namely, Phillip Donald Cook. The plaintiff’s son lives in the Coogee unit but there is no suggestion in the evidence, I agree with the submission of the plaintiff, of any inspections by prospective purchasers. Nor is there any suggestion that the Coogee unit has been advertised for sale.

4. The plaintiff’s solicitors have written to the solicitors acting for the first defendant in the PEXA workspace to demand provision of an undertaking with respect to the surplus proceeds of sale. No response has been received in that respect by this time. The present application was foreshadowed to the solicitors on the record for the first defendant.

5. Rule 25.14(4) of the Uniform Civil Procedure Rules2005 (NSW) provides that this Court may make freezing orders against a prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because of either the judgment debtor or prospective judgment debtor absconding or the assets of the judgment debtor or prospective judgment debtor being removed from the jurisdiction or dissipated, dealt with or diminished in value.

6. I accept the submissions made by counsel on behalf of the plaintiff that the Court, in determining the present application, would need to consider two factors. First, whether there is a prima facie cause of action against the first defendant. Secondly, whether there is a danger that, by reason of the defendants absconding or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if it succeeds, will not be able to have its judgment satisfied.

7. In my view, both of the requirements in that respect have been satisfied in the present case. Firstly, I accept that the plaintiff has established the judgment given in favour of the plaintiff against the first defendant in the Washington proceedings.

8. I note the submission of the plaintiff in this respect that a common law foreign judgment is prima facie capable of recognition and enforcement if a number of requirements are met, including the foreign court must have exercised jurisdiction of the requisite type over the defendant; the judgment must be final and conclusive; there must be identity of parties between the judgment debtors and the defendants in any enforcement action, and the judgment must be for a fixed liquidated sum.

9. In my view, each of those factors or conditions has been proved by the plaintiff in the present proceedings. In those circumstances, r 25.14(2) applies, because there is a sufficient prospect that the underlying judgment made in the Washington proceedings will be registered, or enforced by the Court, and therefore, r 25.14(1) is engaged because a judgment has been given in favour of the plaintiff by another court, being a judgment to which r 25.14(2) applies.

10. A number of factors are identified by the plaintiff in support of the second requirement. Each of those, in my view, validly identifies why the requisite second condition has been met in this case. They are as follows:

1. The first defendant lives, it would appear, in Scottsdale, Arizona.

2. On the evidence, the only asset of the first defendant in Australia is the Coogee unit.

3. After the commencement of the present recognition proceedings, and it would appear in the absence of any public marketing or sale campaign, a PEXA workspace has become active in respect of the Coogee unit.

4. A settlement of a transfer was imminent during 14 September 2023 but did not complete. I know that this was a recurring process that continued until a cut-off point at the end of the day, as was identified in submissions on behalf of the plaintiff, and as I have already mentioned, demands for an undertaking had been made, but had not been responded to.

11. These circumstances, all of them, indicate the need for urgency in consideration of this application.

12. There is a further consideration bearing upon the determination of this matter by the Court, that is, the judgment of PT Thompson J of the Superior Court of the State of Washington in and for the County of Snohomish delivered on 25 May 2023. In that judgment his Honour refers to the Court having issued a preliminary judgment and preliminary injunction, in joining, amongst others, Phillip Cook. His Honour records that Phillip Cook violated the order in various respects. One of those was that the defendants in that matter, Phillip Cook and Kathryn Cook, sold the disputed parcel of real property in North Carolina. His Honour also records that on 30 December 2020 the Superior Court issued an order granting the plaintiff's motion for a preliminary injunction, which enjoined the defendants, Phillip Cook and Kathryn Cook, from transferring, signing and selling, encumbering and changing the title to or in any way dispossessing of the disputed parcel of real property in North Carolina, and that on 9 June 2022 the defendant Phillip Cook violated the Courts order by transferring the parcel of land to another person through Warranty Deeds.

13. I refer to that matter because, in my view, it adds to the consideration of the danger referred to in the second condition for the grant of a freezing order.

14. In all the circumstances, I am satisfied that the Court should make a freezing order. Before I turn to the particular terms of it, I note that the terms of the freezing order accommodate the completion of any contract for sale in respect of the Coogee unit, provided the dealing and disposal amounts to discharging obligations bona fide and properly incurred under a contract entered into prior to the making of any freezing order.

15. The final relief sought in this respect is in the form of an Amended Notice of Motion filed in Court, which is reflected in Short Minutes of Order brought before the Court. Those Short Minutes of Order, amongst other things, provide that the Notice of Motion is returnable at 10am on 20 September 2023. I consider that that timeframe is appropriate. Liberty to the parties to apply on 24 hours notice has been given, and costs are reserved. I also note that the orders will be entered forthwith.

16. In all the circumstances then, I make the orders contained in the Short Minutes of Order. For more abundant caution, given the nature of the proceedings and some variation brought in the Amended Notice of Motion, I mark the orders so made in their written form as MFI 1 in the proceedings.

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Amendments

19 September 2023 - Typographical errors

Decision last updated: 19 September 2023