JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2019
DATE OF JUDGMENT:	8 November 2019
CASE MAY BE CITED AS:	Fernandez v Cohrs
MEDIUM NEUTRAL CITATION:	[2019] VSC 727

---

PRACTICE AND PROCEDURE — Application for freezing order — Applicant (when in NSW) witnessed respondent shoot and kill respondent’s brother — Respondent then handcuffed applicant to metal strut in wool shed, and left — Three hours later, respondent returned, confessing to applicant that he had shot his mother (when in Victoria) and was going to commit suicide — Respondent directed applicant to go to police and advised where he would be — Respondent made unsuccessful attempt at suicide, shooting himself in chest — Respondent charged by Victoria Police with murder of mother and held in custody pending trial — Respondent not yet charged with murder of brother or offences concerning applicant in NSW — Strong case against respondent for liability and damages in assault, battery and false imprisonment — Applicant’s action likely to be delayed substantially because of outstanding related criminal proceedings against respondent in two States — Whether danger of unsatisfied judgment — Whether sufficient proof of requisite danger in evidence that motive for killings included cessation of long-running legal dispute between applicant and his brother and mother — Some of respondent’s interests in property subject to restraining order for potential victims of crimes in Victoria — Other of respondent’s property interests in control of receivers — Application granted — Supreme Court (General Civil Procedure) Rules 2015, Order 37A.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr T Messer	Ryan Legal
For the Respondent	Dr J Plunkett	Peterson Westbrook Cameron
For the Receivers	Mr K Tsiakis	DLA Piper

HIS HONOUR:

Overview

Michael Fernandez applies, pursuant to Rule 37A.02 of the Supreme Court (General Civil Procedure) Rules 2015, for a freezing order in the amount of $1,000,000 against Paul Anthony Cohrs.

The application arises out of a striking series of events alleged to have occurred on both sides of the Victoria-New South Wales border around the Mildura area last year.

I say “alleged”, as I am mindful that there are serious (untested) criminal allegations against Mr Cohrs that overlap with the (untested) civil claim which forms the basis for this particular application. Nevertheless, there is evidence before me to the following effect.

Mr Fernandez is a real estate agent. On 30 October 2018, while being shown a property in Lake Victoria in New South Wales, Mr Fernandez witnessed Mr Cohrs unexpectedly take out a gun and shoot and kill his brother Raymond Cohrs. Mr Fernandez was then handcuffed by Mr Cohrs to a pole in a wool shed, and left alone for three hours. Upon his return, Mr Cohrs told Mr Fernandez that he had shot his (i.e. Mr Cohrs’) own mother and was going…

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 Fernandez v Cohrs

Details

AGLC: Fernandez v Cohrs [2019] VSC 727
Case: [2019] VSC 727
Decision Date: 8 November 2019

CaseChat Overview and Summary

Fernandez (Applicant) filed an application for a freezing order against Cohrs (Respondent) after witnessing Cohrs shoot and kill his brother. Cohrs subsequently handcuffed Fernandez to a metal strut in a wool shed and left. Three hours later, Cohrs returned, confessing to Fernandez that he had shot his mother and intended to commit suicide. Cohrs directed Fernandez to inform the police and indicated where he would be. Cohrs attempted suicide but survived, and was charged by Victoria Police with his mother's murder and held in custody pending trial. Fernandez's claim for damages for assault, battery, and false imprisonment was likely to be delayed due to the ongoing criminal proceedings against Cohrs in two states.

The primary legal issue was whether there was sufficient evidence of a danger of unsatisfied judgment. Fernandez argued that the motive for the killings included the cessation of a long-running legal dispute between Fernandez, his brother, and his mother. The court also needed to consider the restraining order on some of Cohrs' property interests in Victoria for potential victims of his crimes and the control of other property interests by receivers.

The court found that there was sufficient evidence of a danger of unsatisfied judgment due to the strong case against Cohrs for liability and damages in Fernandez's action. The court was also persuaded by the motive for the killings, which included the cessation of the ongoing legal dispute. The restraining order on some of Cohrs' property interests and the control of other property interests by receivers were also taken into account. Consequently, the application was granted under the Supreme Court (General Civil Procedure) Rules 2015, Order 37A.

The court ordered that a freezing order be granted against Cohrs. The order restrained Cohrs from disposing of his property and required him to provide security for the potential judgment debt. The order was to remain in effect until the final determination of Fernandez's claim against Cohrs.

Orders