CXG v Stephen James Limond

[2023] NSWSC 1636

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	CXG v Stephen James Limond [2023] NSWSC 1636
Hearing dates:	14 December 2023
Date of orders:	14 December 2023
Decision date:	14 December 2023
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Freezing orders made.
Catchwords:	CIVIL LAW – freezing orders – ex parte application –– sexual abuse and neglect perpetrated by the first defendant – transfer of interest in property from first to second defendant with no consideration – claim for neglect and abuse by second defendant – concerns that property may be disposed of – orders made freezing assets
Category:	Principal judgment
Parties:	CXG (ex parte)
Representation:	Barrister: S Holmes Solicitor: Gerard Malouf & Partners
File Number(s):	2023/426363
Publication restriction:	Non-publication order over address subject of freezing order and plaintiff's name.

EX-TEMPORE JUDGMENT (REVISED)

1. By notice of motion filed on 12 December 2023 and before me today as the duty judge, the plaintiff seeks certain orders in the nature of freezing orders directed towards the assets held by the second defendant, specifically in relation to her interest in real estate at xxxx (an address over which there will be a non-publication order).

2. The matter has its history in sexual abuse perpetrated by the first defendant on the plaintiff, when the plaintiff was a child. I do not include the word "allegedly" in that last sentence because the evidence currently before me on the notice of motion includes, amongst other things, the sentencing remarks of Judge Gartelmann SC which were delivered in Newcastle on 20 March 2020. The first defendant in the current proceedings was sentenced to a lengthy term of imprisonment, which is set out in the final pages of his Honour's remarks on sentence.

3. The plaintiff filed in court a statement of claim on 24 November 2023, seeking damages against both the first and second defendants. As I have said, there are sentencing remarks relating to the first defendant in relation to sexual offending against the plaintiff and others. The pleadings and particulars in the statement of claim set out in summary form the abuse that the plaintiff suffered at the hands of the first defendant.

4. The claim for damages also encompasses the acts and neglect of the second defendant, and the particulars of that are again set out in the statement of claim. The action does not, in any sense, seem to be a frivolous one and seems to be supported on solid ground. The action against the second defendant is obviously less cogent than the action against the first defendant, given there have been no criminal proceedings against her.

5. The application today has been heard ex parte. Having read a number of affidavits before coming onto the bench, I was satisfied that the application should be dealt without notice being given to the first and second defendants, because the purpose of the orders sought (which is to freeze assets) may be defeated if the defendants were aware that the application was being made. The law surrounding the making of such an order is well settled and has been discussed in many cases. Given the state of the list and the other matters with which I must deal with today, I am not proposing to set out the well-established principles.

6. What I will set out, in very general terms, is a chronology.

7. The sexual abuse, other abuse and neglect alleged in the statement of claim occurred many years ago, around 2005-2013, when the plaintiff was a child. Criminal proceedings then took place.

8. There was what appears to be pre-recorded evidence given by the plaintiff between the 29 and 31 October 2018. I say the evidence was pre-recorded simply because there is otherwise an inexplicable gap between the taking of the plaintiff’s evidence and the evidence given by what I understand to be a second victim, as well as the mother of another victim. The sentencing proceedings took place on 20 March 2020.

9. In January 2019, or leading up to that time, the first and second defendants owned a piece of real estate, the address of which I have mentioned. They owned it jointly; I suspect as joint tenants. They may have been tenants in common. It probably does not matter. In any event, they were joint owners.

10. Around that period, in January 2019, which is just a couple of months after the plaintiff gave evidence in the criminal proceedings, there was a transfer of the first defendant's interest in the property to the second defendant for no consideration. The timing of that gives rise, on the plaintiff's submissions, as formulated by Mr Holmes of counsel, to a concern that the purpose of that transaction may have been to thwart any possible civil proceedings. I accept that sinister motivation is an inference that might well be accepted.

11. The purpose of today's application is to protect the plaintiff from the possibility of assets, now in the hands of the second defendant (at least in terms of legal title), being distributed in such a way that she would not be able to access them if her claim was successful. What her claim is worth is to be decided in the future perhaps by another judge or perhaps through settlement by the parties. I accept Mr Holmes' approximate assessment of her claim, for the purposes of this application, as being an amount more than $800,000, perhaps much more, depending on the approach taken by the judge and the limitations provided for by statute.

12. The orders sought in the notice of motion include freezing orders. It also includes ancillary orders requiring the defendants to provide an affidavit setting out their assets and liabilities and to provide the plaintiff in writing a valuation of their assets. I indicated to Mr Holmes that I was not inclined to make such orders on an ex parte basis and could not see the urgency of those orders in the circumstances. Nor could I see any valid reason for those orders being made without giving the defendants the opportunity to be heard. Mr Holmes, I think properly, indicated that he would not press the making of those orders.

13. I should say I have read the affidavit of the plaintiff. I have not read the hundred pages of transcript that have been provided and said to have been necessary to set out a chronology. I do not think they were necessary, but really, it is too close to Christmas to criticise the lawyers who are doing a very difficult job in very urgent circumstances. It is before me and I can see the chronology does bare out the plaintiff's concerns as to the possibility of dissipation of the assets, after which the plaintiff may ultimately seek to claim.

14. I am prepared to make the orders in the notice of motion, and I will just go through them with the aid of counsel to formulate the precise form of the orders.

15. I should say that I note both in the plaintiff’s affidavit and in the form of orders provided, the plaintiff will make the usual undertakings as to damages when orders such as these are made. Because of the time of year, it cannot be listed in a few days, which is normal, but it will be listed the first day the Court comes back. There is a provision for the defendants or for one of them to seek some exclusion, variation or revocation of those orders because there will be a duty judge available throughout the period of the Christmas break.

16. I note that I increased the unduly parsimonious allowance in the orders for weekly living expenses and legal fees.

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Amendments

02 February 2024 - Non-publication over plaintiff's name made on 29 January 2024.

Decision last updated: 02 February 2024