Craig Stephen Bantoft v Douglas John Foggo

[2024] NSWSC 460

Supreme Court

New South Wales

Medium Neutral Citation:

Craig Stephen Bantoft v Douglas John Foggo [2024] NSWSC 460

Hearing dates:

17 April 2024

Date of orders:

17 April 2024

Decision date:

17 April 2024

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) The notice of motion is adjourned until Wednesday 8 May 2024 for hearing with an estimate of half a day.

(2) The plaintiff is to file and serve any evidence upon which it seeks to rely on or before Wednesday 1 May 2024.

(3) The defendant and Gallop Reserve Pty Ltd are to file and serve any evidence upon which they seek to rely on or before 5 May 2024. The defendant’s evidence should include, if possible, the documents referred to in prayer 6(a), (b), (c) and (d) of the notice of motion, that is:

(a) A copy of any mortgage agreement in respect of Title No. 13082123, Lot 1 Registered Plan 82537, being the property located at 37 Muir St, Labrador QLD 4215 (Labrador Property);

(b) A copy of any document recording or evidencing any indebtedness of the defendant to Gallop Reserve Pty Ltd;

(c) A copy of the Contract for Sale between the defendant and Robert Paul Foggo and Jacinta Louise Foggo as joint tenants, on the one hand, and Robert Paul Foggo and Jacinta Louise Foggo in respect of Title No. 2/348945 Lot 2 in Deposited Plan 348945 being the property located at 54 Phillip St, Chinderah NSW 2487 (Chinderah Property) or any document recording or evidencing such a contract;

(d) A copy of any valuations of the Labrador Property or the Chinderah Property obtained in the period from 9 May 2023 to date.

(4) Written submission of no more than 15 pages are to be filed and served on or before 7 May 2024.

(5) I make interim freezing orders in the terms set out in Schedule A and B to these orders.

(6) Costs are reserved to the Judge who hears the final hearing of the notice of motion.

(7) Parties have liberty to apply.

Catchwords:

CIVIL PROCEDURE – allegation of sexual abuse – legitimate concern that defendant divesting assets – realism concerns current cost of living – hearing date set in May – interim freezing orders made – case management orders made

Category:

Procedural rulings

Parties:

Craig Stephen Bantoft (Plaintiff)
Douglas John Foggo (Defendant)
Gallop Reserve Pty Ltd (Interested Party)

Representation:

Counsel:
M Campbell (Defendant)

Solicitors:
Wyatts Lawyers (Plaintiff)
RHR Legal (Interested Party)

File Number(s):

2023/00147970

EX TEMPORE JUDGMENT

1. The plaintiff commenced proceedings for damages, ultimately, by an amended statement of claim that was filed on 9 May 2023 against the defendant, Douglas John Foggo. The claim relates to an allegation of sexual abuse which the plaintiff says occurred in 2004. The matter is in the duty list today on the plaintiff’s urgent application, brought by a notice of motion for freezing orders and other associated orders, restraining the defendant from disposing of or diminishing the value of his assets. The plaintiff initially sought orders for short service yesterday, but the case was not reached until today, and, despite the short notice, the defendant is represented today by counsel.

2. A third party, Gallop Reserve Pty Ltd, which is also subject to or affected by the proposed freezing orders, and which is the mortgagee of two specified pieces of real property, was also represented today. Mr Hocking, who appeared when we discussed and argued the matter earlier, is not available at this moment due to personal issues. I have to say the lawyers who have appeared on such short notice, as well as Mr Lee, who appears for the plaintiff, have conducted the case in the spirit of compromise, efficiency, whilst also, in each case, protecting their clients’ interests. I am grateful to all the lawyers who appeared today, and their conduct has made it possible to dispose of the matter, at least on an interim basis, quickly.

3. The plaintiff relied on and read an affidavit of his solicitor which annexed documents going first to the subject of the claim in damages, but more importantly for the present purposes, explaining why the freezing orders are sought. The annexures relating to the second of those matters establish, at least at a prima facie level, that there are legitimate concerns on the plaintiff’s part that the defendant may have been or may be taking steps to divest himself of assets that might, ultimately, render the plaintiff’s success in the litigation nugatory.

4. That observation is based on an understanding of one side of this litigation and is made without the defendant being in a position to explain the matters raised by the plaintiff, including his failure to sign an undertaking not to diminish his asset base or divest himself of those assets. Because the defendant ultimately accepts that an interim order is or may be appropriate, it is unnecessary, and, I think, undesirable to go into that aspect of the case in any more detail. In any event, based on the material provided by the plaintiff, I am satisfied that some kind of interim freezing order is appropriate in the circumstances.

5. In prayer six of the notice of motion the plaintiff also sought orders for production of certain documents. Following discussions this morning, I formed a view that it is unnecessary to make such orders. This is because such orders will, in essence, be encompassed within case management orders which the parties agree and which I have found will streamline the resolution of the matter and lead to the disposition of the current dispute, that is whether and to what extent the defendant and the third-party mortgagee should be or are to be restrained from dealing with their assets. That resolution will take place at the beginning of May 2024.

6. As to the detail of the interim freezing orders, I agreed with the amendments suggested by Ms Campbell who appears on behalf of the defendant. The plaintiff, with some gentle persuasion agreed to those amendments. I will only say this, parties seeking freezing orders should be realistic in terms of the current cost of living.

7. Again, in terms of the orders sought against Gallop Reserve Pty Ltd, I was sympathetic to the position taken by Mr Hocking, and in particular was concerned that the orders sought may impact upon people, that is the mortgagors and titleholders of certain real estate named in the orders. Those people, I think there are two of them, were not on notice of today’s hearing or represented. Again, the plaintiff did not push back on a carve-out in relation to the orders sought.

8. Based on the material provided by the plaintiff, guided by the helpful submissions of all three lawyers and doing the best I can in the limited time available, I make the following orders:

1. The notice of motion is adjourned until Wednesday 8 May 2024 for hearing with an estimate of half a day.

2. The plaintiff is to file and serve any evidence upon which it seeks to rely on or before Wednesday 1 May 2024.

3. The defendant and Gallop Reserve Pty Ltd are to file and serve any evidence upon which they seek to rely on or before 5 May 2024. The defendant’s evidence should include, if possible, the documents referred to in prayer 6(a), (b), (c) and (d) of the notice of motion, that is:

1. A copy of any mortgage agreement in respect of Title No. 13082123, Lot 1 Registered Plan 82537, being the property located at 37 Muir St, Labrador QLD 4215 (Labrador Property);

2. A copy of any document recording or evidencing any indebtedness of the defendant to Gallop Reserve Pty Ltd;

3. A copy of the Contract for Sale between the defendant and Robert Paul Foggo and Jacinta Louise Foggo as joint tenants, on the one hand, and Robert Paul Foggo and Jacinta Louise Foggo in respect of Title No. 2/348945 Lot 2 in Deposited Plan 348945 being the property located at 54 Phillip St, Chinderah NSW 2487 (Chinderah Property) or any document recording or evidencing such a contract;

4. A copy of any valuations of the Labrador Property or the Chinderah Property obtained in the period from 9 May to date.

4. Written submission of no more than 15 pages are to be filed and served on or before 7 May 2024.

5. I make interim freezing orders in the terms set out in Schedule A and B to these orders.

6. Costs are reserved to the Judge who hears the final hearing of the Notice of Motion.

7. Parties have liberty to apply.

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Decision last updated: 24 April 2024