DIC Australia Pty Limited v Quality Print Group Pty Ltd

[2010] NSWSC 636

CITATION:	DIC Australia Pty Limited v Quality Print Group Pty Ltd [2010] NSWSC 636
HEARING DATE(S):	11 June 2010
JUDGMENT DATE :	11 June 2010
JUDGMENT OF:	Price J at 1
EX TEMPORE JUDGMENT DATE:	11 June 2010
DECISION:	1.On the undertaking of the plaintiff as to damages (set out in Schedule A to the Penal Orders attached hereto and Marked “A”), I make orders 1 to 15 of the Penal Order against the First Defendant until 10am 15 June 2010. 2. On the undertaking of the Plaintiff as to damages (set out in Schedule A to the Penal Orders annexed hereto and Marked “B”), I make orders 1 to 15 of the Penal Order against the Second Defendant until 10am 15 June 2010. 3. I grant leave to file in court this summons and the affidavit of Peter Murphy sworn 11 June 2010 on the usual undertaking by the plaintiff to pay filing fees within 7 days. 4.This summons is made returnable instanter. 5. First and Second Defendants to be notified of these orders by 6pm today. 6. The proceedings are listed before the Duty Judge on 15 June 2010 at 10am. 7.These orders are to be entered forthwith.
CATCHWORDS:	INJUNCTION - freezing order
CATEGORY:	Procedural and other rulings
CASES CITED:	Acquasun Pty Limited v Coverdale Ram Pty Limited [2000] NSWSC 1146 Print Management Australia Pty Limited v Pasupati (2008) NSWSC 342
PARTIES:	DIC Australia Pty Limited - Plaintiff Quality Print Group Pty Ltd - First Defendant The Quality Group Australia Pty Ltd - Second Defendant
COUNSEL:	Mr P Folino-Gallo (Applicant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

11 June 2010

2010/147181 DIC Australia Pty Limited v Quality Print Group Pty Limited

JUDGMENT

1 HIS HONOUR: This matter comes before me in the Duty Judge List as an urgent application for a freezing order. The application has taken somewhat of a circuitous course before arriving in this court. I am informed that the plaintiff sought to have the matter listed in the District Court but there was no judge available to hear it.

2 The plaintiff has commenced proceedings in the District Court of New South Wales to recover the amount of $239,823.02 plus costs and interest, being the amount it claims was owing to it for the supply of ink used by the first and/or second defendant at their Huntington premises.

3 It seems that the plaintiff has a good arguable case as to its claim. The urgency of the application for the freezing order is said to arise from the apparent sale of the assets of the first and second defendant at their Huntington premises to an entity, Caxton Webb.

4 On 9 June 2010 the plaintiff’s solicitor wrote to the solicitors for the first and second defendant seeking to establish whether the sale had the effect of removing assets from the defendants. The plaintiff’s solicitor received a reply to the letter at 5pm yesterday which, in effect, declined to answer the question. The plaintiff’s concern is that the defendant’s assets are being disposed of or diminished as the result of the purchase by Caxton Webb.

5 The plaintiff argues that if a freezing order is not made there is a danger that a prospective judgment of the District Court in favour of the plaintiff will be wholly or partly unsatisfied.

6 In Print Management Australia Pty Limited v Pasupati (2008) NSWSC 342, Barrett J said at 14:

“A freezing order is warranted only if, in the words of Bryson J in Acquasun Pty Limited v Coverdale Ram Pty Limited [2000] NSWSC 1146, there has been ‘conduct on the part of the defendants which can reasonably be interpreted as potentially having the effect of frustrating the ordinary processes of the court and the enforcement of its judgments or of being intended to do so or of being in any way evasive indicating dishonesty or otherwise indicating actually or potentially that the assets of the company have been or will be dealt with in an irregular way.’”

7 The application has proceeded in the absence of the defendants. On the present state of the evidence, it seems that there is a danger that a prospective judgment of the District Court will be wholly or partly unsatisfied. It is unfortunate that an assurance was not provided to the plaintiff’s solicitor that the assets would not be dealt with in a way that might not enable a prospective judgment to be satisfied.

8 Accordingly, I propose to make a freezing order but not on the terms sought by the plaintiff. The order that I will make will be confined to the long weekend which is now upon us. I will also make an order that the defendants be notified forthwith.

9 I make the following orders:

1. On the undertaking of the plaintiff as to damages (set out in Schedule A to the Penal Orders attached hereto and Marked “A”), I make orders 1 to 15 of the Penal Order against the First Defendant until 10am 15 June 2010.

2. On the undertaking of the Plaintiff as to damages (set out in Schedule A to the Penal Orders annexed hereto and Marked “B”), I make orders 1 to 15 of the Penal Order against the Second Defendant until 10am 15 June 2010.
3. I grant leave to file in court this summons and the affidavit of Peter Murphy sworn 11 June 2010 on the usual undertaking by the plaintiff to pay filing fees within 7 days.
4. This summons is made returnable instanter.
5. First and Second Defendants to be notified of these orders by 6pm today.
6. The proceedings are listed before the Duty Judge on 15 June 2010 at 10am.
7. These orders are to be entered forthwith.

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