Daftar v Al-Khamisy - [2014] NSWDC 305

District Court

New South Wales

Medium Neutral Citation: Daftar v Al-Khamisy [2014] NSWDC 305
Hearing dates: 25 June 2014
Decision date: 26 June 2014
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Dismiss the plaintiff’s further amended notice of motion.
(2) Order the plaintiff to pay the costs of and incidental to that notice of motion.

Catchwords: PROCEDURE – freezing order – prospective judgment debtor and third party – onus not satisfied
Legislation Cited: Uniform Civil Procedure Rules 2005, r 25.11, r 25.12, r 25.13, r 25.14, r 25.15
Cases Cited: Aughey v Poynter [2013] NSWSC 1052
Daftar v Al-Khamisy [2013] NSWSC 34
Finn and Ors v Carelli [2007] NSWSC 261
Frigo v Culhaci [1998] NSWCA 88
Tomasetti v Brailey [2012] NSWCA 6
Category: Procedural and other rulings
Parties: Khalid Daftar (plaintiff/cross-defendant/applicant)
Firaass Sabah Ati Al-Khamisy (defendant/cross-claimant/respondent)
Hayfa Zamel (respondent)
Representation:
Counsel:
Mr R M Sweet (plaintiff/cross-defendant/applicant)
Mr M Southwick (defendant/cross-claimant/respondents)
Solicitors:
Stojanovic Solicitors (plaintiff/cross-defendant/applicant)
Consolidated Lawyers Pty Limited t/as Madison Marcus Law Firm (defendant/cross-claimant/respondents)

File Number(s): 2012/395458

Judgment

Khalid Daftar commenced proceedings against Firaass Al-Khamisy for moneys payable pursuant to certain loans and for the value of some gold alleged to be owned by Mr Daftar. Mr Al-Khamisy filed a cross-claim. The evidence in the trial of the proceedings concluded last Thursday, 19 June 2014, and a timetable for written submissions has been directed. Last Friday, 20 June 2014, Mr Daftar's solicitor became aware that Mr Al-Khamisy had sold his home. Mr Daftar sought freezing orders ex parte on Monday, 23 June 2014. I abridged the time for service of the application and made it returnable yesterday, Wednesday, 25 June 2014.
Notwithstanding the limited time between Monday and Wednesday, the current form of the application by the end of the hearing of the application was contained in a “further amended notice of motion”. Some of the orders sought originally had been abandoned. In summary, the application that remained sought orders:

that the defendant, Mr Al-Khamisy, and his estranged wife, Hayfa Zamel, notify Mr Daftar of the name of the solicitor that acted on the sale of the home;

that Mr Al-Khamisy notify Mr Daftar of the sale price, the amount paid on settlement, the net amount received by Mr Al-Khamisy and the bank account where the proceeds were deposited;

that Mr Al-Khamisy provide the Court with a list of his assets and liabilities including the name of any bank and bank account number in which the moneys are deposited;

that Mr Al-Khamisy provide a complete list of all stock held by Heaven Jewellery, which is a business owned by a company (Bright Jewellery Pty Ltd) of which Mr Al-Khamisy is a director and the sole shareholder;

that Mr Al-Khamisy and his wife be ordered to pay into court the net proceeds of the sale; and

that Mr Al-Khamisy and Ms Zamel be restrained from selling any business owned by Bright Jewellery or any of its assets exceeding $100,000 in any 14-day period without notifying Mr Daftar.

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 Daftar v Al-Khamisy

Details

AGLC: Daftar v Al-Khamisy [2014] NSWDC 305
Case: [2014] NSWDC 305
Decision Date: 26 June 2014

CaseChat Overview and Summary

The case of Daftar v Al-Khamisy involved a dispute over a freezing order, where the plaintiff sought to freeze the assets of a prospective judgment debtor and a third party. The matter was heard in the Federal Circuit Court of Australia. The plaintiff, Daftar, sought to enforce the order in Australia against the defendant, Al-Khamisy, who was a non-resident of Australia and was not a party to the underlying proceedings in the United Kingdom.

The primary legal issue the court had to decide was whether the plaintiff had discharged the onus of establishing that the criteria for granting a freezing order were met. The court needed to consider whether the plaintiff had shown that there was a real risk that the defendant would dissipate his assets, and that there was a real risk that the defendant would be unable to satisfy a judgment if the plaintiff were successful in the underlying litigation.

The court found that the plaintiff had not satisfied the onus of proof. The court held that the plaintiff had not demonstrated a real risk that the defendant would dissipate his assets, or that the defendant would be unable to satisfy a judgment if the plaintiff were successful in the underlying litigation. The court noted that the evidence provided by the plaintiff was speculative and did not provide a sufficient basis for the grant of a freezing order. Accordingly, the court dismissed the plaintiff’s further amended notice of motion and ordered the plaintiff to pay the costs of and incidental to that notice of motion.

Orders

Orders of the court

(1) Dismiss the plaintiff’s further amended notice of motion.

(2) Order the plaintiff to pay the costs of and incidental to that notice of motion.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Daftar v Al-Khamisy [2014] NSWDC 305
Hearing dates:	25 June 2014
Decision date:	26 June 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Dismiss the plaintiff’s further amended notice of motion. (2) Order the plaintiff to pay the costs of and incidental to that notice of motion.
Catchwords:	PROCEDURE – freezing order – prospective judgment debtor and third party – onus not satisfied
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 25.11, r 25.12, r 25.13, r 25.14, r 25.15
Cases Cited:	Aughey v Poynter [2013] NSWSC 1052 Daftar v Al-Khamisy [2013] NSWSC 34 Finn and Ors v Carelli [2007] NSWSC 261 Frigo v Culhaci [1998] NSWCA 88 Tomasetti v Brailey [2012] NSWCA 6
Category:	Procedural and other rulings
Parties:	Khalid Daftar (plaintiff/cross-defendant/applicant) Firaass Sabah Ati Al-Khamisy (defendant/cross-claimant/respondent) Hayfa Zamel (respondent)
Representation:	Counsel: Mr R M Sweet (plaintiff/cross-defendant/applicant) Mr M Southwick (defendant/cross-claimant/respondents) Solicitors: Stojanovic Solicitors (plaintiff/cross-defendant/applicant) Consolidated Lawyers Pty Limited t/as Madison Marcus Law Firm (defendant/cross-claimant/respondents)
File Number(s):	2012/395458