Fernandez v Cohrs
[2019] VSC 727
•8 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S ECI 2019 03047
Between:
| MICHAEL FERNANDEZ | Applicant |
| -and- | |
| PAUL ANTHONY COHRS | Respondent |
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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 | |
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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.
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| 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 to commit suicide.
Later, Mr Cohrs did attempt suicide by shooting himself in the chest. But he failed, managing instead only to cause himself serious injury. He was taken to hospital in a critical condition.
Ultimately, he was charged by Victoria Police with the murder of his mother Bette Cohrs-Schulz at Red Cliffs, a town near Mildura on the Victorian side of the Murray River. Mr Cohrs remains in custody in Victoria awaiting trial. He is yet to be charged by New South Wales Police with offences concerning the killing of his brother or his dealings with Mr Fernandez at Lake Victoria.
Mr Cohrs had been in a partnership with his brother in various businesses in Mildura connected with the building industry and property development. The two of them had been involved in a commercial dispute in this Court concerning the partnership since September 2016 (“the commercial proceedings”). The total value of the properties and businesses in which Mr Cohrs and his brother have (or had) an interest is thought to be in the order of $10,000,000 to $15,000,000, with outstanding loans in the order of $3,000,000. Those properties and businesses are being managed by Court-appointed receivers.
In July this year, as a result of the events at the homestead on 30 October 2018, Mr Fernandez commenced an action against Mr Cohrs in this Court in assault, battery and false imprisonment for damages (“the civil action”). The claim for damages is unspecified in amount, but includes damages for pain and suffering, special damages for medical and like treatment, loss of earnings and loss of earning capacity, and aggravated and exemplary damages.
Mr Cohrs has filed a defence in the civil action, in which he does not admit the allegations. The defence also gives notice that Mr Cohrs intends to apply for an order staying the civil action pending the outcome of the criminal proceedings.
The principal issue in dispute on this application is whether it has been established that there is a danger that a prospective judgment of this Court in favour of Mr Fernandez in the civil action will be wholly or partly unsatisfied because the assets of Mr Cohrs might be removed from Australia or disposed of, dealt with or diminished in value. Mr Messer, who appears for Mr Fernandez, accepted that there is no direct evidence that any of those things might occur, but submits that there is evidence from which the necessary inference can and should be drawn on the civil standard of proof. Mr Plunkett, who appears for Mr Cohrs, submitted that to reason in such a fashion would be to speculate rather than properly to draw an inference.
For reasons that follow, on the evidence before me, I am satisfied that the necessary inference can and should be drawn, that all of the other requirements of the application are established and that a freezing order should be made.
After publishing these reasons, I shall hear counsel on the precise terms of the freezing order, including whether an ancillary order of the type sought (concerning disclosure of assets) is still thought necessary.
Background facts
I turn first to the background facts in more detail.[1]
[1]The following facts are drawn mostly from an affidavit of Mr Fernandez filed on this application. Included as an exhibit to that affidavit is a copy of the affidavit of Detective Acting Sergeant David Dance, which was filed on an application, pursuant to the Confiscation Act 19997 (Vic), in this Court by the Director of Public Prosecutions for a restraining order in respect of some properties in which Mr Cohrs has or had an interest. See below.
Paul and Raymond Cohrs and their partnership dispute
Mr Cohrs is aged 59. He is married and has a daughter.
Raymond Cohrs was aged 64 at the time of his death. He too was married with children.
The two brothers had been involved in a long-running dispute over ownership and control of family-owned companies involved in construction and property development. This dispute gave rise to the commercial proceedings commenced in in this Court in September 2016.
The events of 30 October 2018
Mr Cohrs lived at the Lake Victoria Homestead on Rufus River Road, Rufus, which is situated about 100 kilometres west of Mildura on the New South Wales side of the Murray River. This was one of the properties the subject of the commercial proceedings.
On the morning of 30 October 2018, Mr Fernandez and Raymond Cohrs travelled from Mildura to the homestead. They arrived at about 10:00 a.m. Mr Fernandez was there to value the homestead for the purposes of a possible sale to repay an outstanding bank loan. Paul Cohrs was also at the homestead at this time.
After a short conversation among the three men, Paul Cohrs opened the rear driver’s side door of his vehicle and produced a single-barrel longarm. When he was about ten feet away, he fired a shot at his brother, who immediately fell to the ground. He told Mr Fernandez that he would not shoot him, and directed him to move away. Mr Cohrs then moved closer to his brother and said, “Have you had enough pain yet? What’s it like to feel pain?” He then fired a shot into his brother’s head, which ultimately resulted in his death.
Mr Cohrs then directed Mr Fernandez into a nearby wool shed and handcuffed him to a metal strut. He told him that he would be back in an hour, and left.
At about 11:30 a.m., Mr Cohrs arrived at 3 Snowy Avenue in Red Cliffs. While there, he shot his mother Bette Cohrs-Schulz once in the chest, which killed her.
At 12:27 p.m., using the mobile service 0427 221 576, a male called triple-zero and told the operator that his grandmother had been shot at Snowy Avenue in Red Cliffs. When asked by the operator by whom she had been shot, the caller replied, “I’m not sure. … I just turned up … there and she’s dead.” He then told the operator that her six-year-old grandson was in the house and that someone needed to get there urgently. The caller declined to name his grandmother and cut the call short. The caller’s voice has been identified as that of Paul Cohrs.
At 12:36 p.m., the same mobile phone was used to call the partner of a Melbourne law firm. A voicemail was left (obviously by Mr Cohrs) in the following terms:
Michael, Paul Cohrs, how’ you going? It appears the court case is over. I just shot Raymond dead and I’ve shot my mother dead. I don’t believe I’ll live the rest of the day out. So, all I can say is just look after Leanne and you can blame Leigh for this. He should have advised otherwise.
At about 1:00 p.m., Mr Cohrs returned to the homestead. He removed the handcuffs from Mr Fernandez. He told him, “I’ve been to Mildura. I’ve shot my mother. I’ve seen the kids and I’m going to go and commit suicide.” He also told Mr Fernandez to take his brother’s vehicle and go to the Wentworth Police Station. He said, “Tell them they will find me at Lock 7.”
Soon afterwards, police from New South Wales found Mr Cohrs on one of the tracks on the homestead property. Mr Cohrs turned a shotgun to his chest, shot himself and fell to the ground. Police immediately administered first aid. When asked what had happened, Mr Cohrs said, “I just shot my brother and mum.” When asked why he did this, he said, “They are the evilest people in the world.”
Mr Cohrs was taken by ambulance to Mildura Base Hospital. Bone fragments and shotgun wadding were removed from his chest. The next day, he was transferred to the Alfred Hospital in Melbourne. He was not interviewed formally by police because of his parlous medical state.
Also on 30 October 2018, police found Ms Cohrs-Schulz dead on the kitchen floor at the Red Cliffs address. Her great-grandson was found (unharmed) in another room in the same house.
On 9 November 2018, Victoria Police charged Mr Cohrs with the murder of his mother Ms Cohrs-Schulz. The matter is due to return to this Court on 2 December 2019.
As indicated earlier, Mr Cohrs is yet to be charged by New South Wales Police with any offences concerning his brother or Mr Fernandez.
Restraining order made under Confiscation Act
On 21 February 2019, pursuant to s 16 of the Confiscation Act 1997 (Vic), the Victorian Director of Public Prosecutions (“the DPP”), ex parte, sought in this Court a restraining order over Mr Cohrs’ interests in two properties in Swan Hill and another in Rufus River. The application was supported by an affidavit of Detective Acting Sergeant David Dance. Although the particular names have been redacted, the affidavit lists family members of Ms Cohrs-Schulz who intend to make applications for compensation under the Sentencing Act 1991 (Vic)[2] should Mr Cohrs be convicted, and also mentions the prospect of other possible claimants. Justice Moore granted the application and declared, pursuant to s 15(1)(e) of the Confiscation Act, that the properties (or Mr Cohrs’ interests therein) were restrained for the purpose of satisfying any orders for restitution or compensation that may be made under the Sentencing Act.
[2]See, in particular, Part 4, Division 2, Subdivision (1) of the Sentencing Act 1991 (Vic), especially s 85B.
Receivers appointed
On 1 March 2019, in the commercial proceedings, Kennedy J appointed receivers and managers over the properties, assets, undertakings and businesses of the partnership and related entities. These orders include the properties covered by the restraining order made under the Confiscation Act, plus numerous other properties and businesses.
I was told, without objection, by Mr Tsiakis, a solicitor appearing for the receivers, that, while it is still a little uncertain, the total value of the properties and businesses in which Mr Cohrs and his brother have or had an interest is in the order of $10,000,000 to $15,000,000, with outstanding loans of about $3,000,000. Thus, Mr Cohrs’ portion of the net value of those interests (subject to any claim his wife or others may have against him) might be in the order of $3,500,000 to $6,000,000.
Restraining order varied
On 8 May 2019, the restraining order was varied by Moore J to allow the sale of the Rufus River property, with half of the net proceeds to be disturbed to Mr Cohrs’ wife Leanne Rose Cohrs and the other half to be held by the Assets Confiscation Office (“the ACO”).
Orders concerning receivers varied
On 26 July 2019, Kennedy J made orders permitting the receivers to consent to or seek a variation of the restraining order in order to sell the properties covered by the restraining order. The orders also provided, among other things, that half of the net proceeds of sale were to be paid to the ACO and half was to go to the receivers for distribution to the estate of Raymond Cohrs.
Restraining order varied again
On 6 August 2019, the restraining order was varied again, this time by Forbes J. In substance, the variation allowed the receivers to sell the two Swan Hill properties, with half of the net proceeds to be paid to the ACO and the other half to be retained by the receivers and distributed in accordance with orders in the commercial proceedings.
Procedural history of the application
This application was listed to come on before Cameron J in the Practice Court on 8 August 2019. However, an order was made in chambers adjourning the matter to a date not before 7 October 2019, apparently so that Mr Cohrs could be served with the summons filed on 2 August 2019. I was told at the hearing that the matter was also adjourned so that notice of the application could be given to the receivers as well.
The applicable law
Orders 37A.02 and 37A.05 and the Practice Note
As I indicated at the outset, the application is brought pursuant to Rule 37A.02 of the Supreme Court (General Civil Procedure) Rules 2015. In so far as is relevant, that rule provides as follows:
37A.02 Freezing order
(1) The Court may make an order (a freezing order), upon or without notice to the respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a … prospective judgment of the Court will be wholly or partly unsatisfied.
(2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.
(3) A freezing order may be in Form 37AA.
(4) In making a freezing order or ancillary order, the Court shall have regard to the practice note concerning freezing orders.
(5) The affidavits relied on in support of an application for a freezing order or an ancillary order shall, as far as possible, address the following—
(a) … the following information about the cause of action—
(i) the basis of the claim for substantive relief;
(ii) the amount of the claim;
(iii) …;
(b) the nature and value of the respondent’s assets, so far as they are known to the applicant, within and outside Australia;
(c) the matters referred to in Rule 37A.05; and
(d) the identity of any person, other than the respondent, who the applicant believes may be affected by the freezing order and how that person may be affected by it.
Again, only in so far as is relevant, Rule 37A.05 provides as follows:
37A.05 Order against … prospective judgment debtor …
(1) This Rule applies if—
(a) …
(b) an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in—
(i) the Court; or
(ii) …
… .
(4) The Court may make a freezing order or an ancillary order or both against a … prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a … prospective judgment of the Court will be wholly or partly unsatisfied because any of the following might occur—
(a) the … prospective judgment debtor or another person absconds; or
(b) the assets of the … prospective judgment debtor or another person are—
(i) removed from Australia or from a place inside or outside Australia; or
(ii) disposed of, dealt with or diminished in value.
…
(6) Nothing in this Rule affects the power of the Court to make a freezing order or an ancillary order if the Court considers it is in the interests of justice to do so.
Consistently with the directive in Rule 37A.02(4), for the Court’s assistance, counsel handed up and referred to the applicable Practice Note, namely Practice Note SC Gen 17 — Freezing Orders (30 January 2017).
Mr Messer also handed up a draft freezing order and ancillary order adapted from Form 37AA.
Principles
Over ten years ago, in Zhen v Mo & Ors,[3] Forrest J helpfully summarised the principles he applied when determining whether or not to continue a freezing order already in place.[4] Those principles may be adapted to the making of such an order for the first time. His Honour said this:[5]
[3]Zhen v Mo & Ors [2008] VSC 300.
[4]Many of his Honour’s references were to authorities on Mareva injunctions.
[5]Zhen v Mo & Ors [2008] VSC 300 at [22]-[29] (Forrest J’s footnotes retained, with slight adaptations).
[22] First, … a freezing order, by its very nature, is a drastic remedy and a court must exercise a high degree of caution before taking a step which will interfere with a party’s capacity to deal with his or her assets.[6]
[6]Cardile v LED Builders Pty Limited (1998) 198 CLR 380 (“Cardile”) at 403[51]; Practice Note 3 of 2006.
[23] Second, the order is not designed to provide security for the applicant’s claim.[7] It is solely directed to preserving assets from being dissipated, thereby frustrating the court process.[8]
[7]Jackson v Sterling Industries (1987) 162 CLR 612 (“Jackson”) at 621 & 625.
[8]Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 44-45[73].
[24] Third, the applicant bears the onus … in satisfying the Court as to the amount which is to be the subject of the order.
[25] Fourth, … an order can only be made on the basis of admissible evidence which supports the contentions made by the party seeking the order. Speculation and guesswork is no substitute for either the facts or inferences properly drawn from proved facts.[9]
[9]Hartwell Trent (Aust) Pty Ltd v Tefal Societe Anonyme [1968] VR 3 at 13.
[26] Fifth, … before such an order can be made, it is necessary that the applicant establish —
(a) an arguable case against the defendant;[10] and
[10]Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49.
(b) that there is a danger that the prospective judgment will be wholly or partly unsatisfied as a result of the defendant’s actions in either removing the assets or disposing or dealing with them so as to diminish their value.[11]
[11]Rule 37A.02(1). Under the general law, the plaintiff must establish that there is a real risk of assets being disposed of: Cardile at [122].
[27] Sixth, the balance of convenience must favour the granting of the freezing order.[12]
[12]Consolidated Constructions Pty Ltd v Bellenville Pty Ltd [2002] FCA 1513.
[28] Seventh, … there is no set process determining the exact nature of an order. The order will be framed according to the circumstances of the case.[13]
[29] Eighth, the applicant must establish with some precision the value of prospective judgment. The order should not unnecessarily tie up a party’s assets and property.[14]
[30] Finally, there may be discretionary considerations which militate against the granting of a freezing order, such as delay in bringing the application on before the court or a lack of candour in the materials placed before the court.[15]
[13]Jackson at 621.
[14]Cardile at [124].
[15]Cardile at [58].
These principles are reflected in the Practice Note, as well as in various other authorities to which counsel referred, including Patterson v BTR Engineering (Aust) Ltd,[16] Mort v Woolf,[17] Bunnings Pty Ltd v McMillin[18] and Connective OSN v Parkyn[19].
[16]Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 (Gleeson CJ, Meagher JA and Rogers A-JA).
[17]Mort v Woolf [2002] VSC 503 (Beach J).
[18]Bunnings Pty Ltd v McMillin [2005] VSC 131 (Kaye J).
[19]Connective OSN v Parkyn [2018] VSC 697 (Digby J).
I have applied these principles in arriving at my decision.
Matters not in dispute
Without making any admissions on behalf of Mr Cohrs, Mr Plunkett did not dispute that the evidence before me was capable of establishing a good arguable case on a prospective cause of action that is justiciable in this Court. He also accepted that, if otherwise established, a freezing order in the amount of $1,000,000 would be appropriate in view of the nature of the claim.
As I understood counsel, it was also accepted that, because the civil action arises out of events in New South Wales, and not out of a crime alleged in Victoria, Mr Fernandez would not be able to rely on the restraining order made by this Court under the Victorian Confiscation Act as a basis for preserving any of Mr Cohrs’ property for the purposes of satisfying any claim for compensation made under the Victorian Sentencing Act. Nor could he make any such claim for compensation under the Victorian Sentencing Act in any event.
Mr Messer also indicated that Mr Fernandez had been advised that there is no equivalent regime in New South Wales for the restraint of a charged person’s property or interest therein for the purposes of criminal compensation. Mr Plunkett did not put any submission to the contrary. My researches were incomplete, but I came to the same tentative view.[20]
[20]See, for example, the Confiscation of Proceeds of Crime Act 1989 (NSW) and the Crimes (Sentencing Procedure) Act 1999 (NSW), neither of which appears to contain provisions equivalent to those in s 85B of the Sentencing Act 1991 (Vic) or s 15(1)(e) of the Confiscation Act 1991 (Vic).
That said, even if there were a restraint and criminal compensation scheme in New South Wales similar to that which applies in Victoria, for a number of reasons, that would not necessarily, if ever, prevent a freezing order being made when the property or interests therein of an accused (and prospective defendant in a civil claim) have already been the subject of a restraining order for the purposes of possible compensation orders in the event of a conviction. At the very least, this is because, unlike the common law, such compensation schemes are limited to compensation for pain and suffering (and medical expenses), and do not include damages for loss of earnings or loss of earning capacity, aggravated damages or exemplary damages.[21] And, as is made clear in s 85L of the Sentencing Act, “[n]othing in [the subdivision in which the compensation order provisions are found] takes away from, or affects, the right of any person to recover damages for any expense or other matter so far as it is not satisfied by payment or recovery of compensation under [that subdivision]”. Thus, while a victim/plaintiff may not “double-dip”, he is entitled to bring a claim under s 85B and a separate claim for damages in tort. Further, of course, an accused person might be acquitted of a crime, and therefore not subject to an order for compensation under the scheme, but still be liable in tort based on the same or similar allegations.[22]
[21]See s 85B(2) of the Sentencing Act 1991 (Vic).
[22]Section 85L of the Sentencing Act 1991 (Vic) also provides that “[n]othing in this Subdivision takes away from, or affects, the right of any person to recover damages for any expense or other matter so far as it is not satisfied by payment or recovery of compensation under this Subdivision”.
Danger prospective judgment unsatisfied because of disposal of assets
Mr Plunkett put two matters in issue. The first and principal area of dispute was whether there was the requisite evidence of — as opposed to speculation about — a danger that the prospective judgment of this Court in favour of Mr Fernandez in the civil action will be wholly or partly unsatisfied because the assets of Mr Cohrs might be removed from Australia or disposed of, dealt with or diminished in value.
Submissions
As I indicated earlier, Mr Messer accepted that there is no direct evidence that any of those things might occur, but submitted that there is evidence from which the necessary inference can and should be drawn on the civil standard of proof. In particular, he relied on the evidence that Mr Cohrs murdered his brother and his mother and that, soon after doing so, he left a voicemail message for his solicitor in the commercial proceedings to the following effect:
Michael, Paul Cohrs, how’ you going? It appears the court case is over. I just shot Raymond dead and I’ve shot my mother dead. I don’t believe I’ll live the rest of the day out. So, all I can say is just look after Leanne and you can blame Leigh for this. He should have advised otherwise.
In Mr Messer’s submission, it is reasonable to infer from those remarks that Mr Cohrs was prepared to kill his brother and his mother in order to deal with the commercial proceedings before this Court. In those circumstances, the submission continued, it is also reasonable to infer that there is a substantial risk that a person who was prepared to go to those extreme lengths (in effect to terminate proceedings in this Court by killing the chief witness against him) would be prepared to shift, dispose of, deal with or otherwise diminish his assets in such a way as to frustrate the Court’s process.
In this regard, Mr Messer submitted, the case was similar to those cases (including Mort v Woolf[23]) in which the dishonesty inherent in the allegation that monies have been stolen or fraudulently obtained or diverted by the respondent in itself may be enough to establish the necessary risk of dissipation of assets.[24]
[23]Mort v Woolf [2002] VSC 503 (Beach J) (in which his Honour had referred also to Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 (Gleeson CJ, Meagher JA and Rogers AJA)).
[24]Counsel also referred to Bunnings Pty Ltd v McMillin [2005] VSC 131 (Kaye J); and Connective OSN v Parkyn [2018] VSC 697 (Digby J).
Mr Plunkett, on the other hand, submitted that to reason in such a fashion in this case would be to speculate rather than properly to draw an inference. He submitted that a family dispute over ownership cannot — and should not — be equated with a danger that Mr Cohrs will cause the assets under dispute to be removed from Australia or disposed of, dealt with or diminished in value so as to frustrate the Court’s process vis-à-vis Mr Fernandez, a person with whom his client had no relationship.
In Mr Plunkett’s submission, to reason in the fashion urged by Mr Messer would be to go beyond the authorities to which I was taken, including Mort v Wolf. Indeed, he also submitted that, contrary to what he understood to be the submission of Mr Messer, Mort v Woolf is not authority for the proposition that those accused of serious criminal offences are able to have freezing orders made against them without the applicants otherwise being able to establish the requirements in Rule 35A.05(4). Instead, in his submission, it is simply an example of a case in which there was direct evidence of conduct deliberately designed to frustrate the process of the Court.[25]
[25]Counsel referred to J Forrest J’s judgment in Deputy Commissioner of Taxation v AES Services [2009] VSC 418 at [35] in support of this proposition.
Mr Plunkett also sought to distinguish Mort v Woolf on several bases. First, the respondent there had an extensive criminal history, including for offences of dishonesty, whereas Mr Cohrs does not. Second, the parties in Mort v Woolf had a pre-existing aggressive relationship, whereas there was no relationship at all between Mr Cohrs and Mr Fernandez. Third, the asset the subject of the freezing order in Mort v Woolf was cash, which is far more liquid than the properties and businesses considered in this case. Finally, the respondent in Mort v Woolf must have commenced taking steps to liquidate his primary asset within only days of becoming aware of the potential for civil proceedings to be brought against him, whereas there is no evidence that Mr Cohrs has taken any steps to liquidate his assets in the year since the events giving rise to the civil action.
In summary, Mr Plunkett submitted that the application is little more than an attempt to provide Mr Fernandez with security, presumably in light of Mr Cohrs’ assets being in the hands of the receivers. This, in his submission, would not provide a proper basis for the making of a freezing order.
Discussion
I do not accept the submission that “the application is little more than an attempt to provide Mr Fernandez with security”. Instead, it strikes me that this is a reasonable application brought squarely within the bases available for doing so.
Next, I agree with Mr Plunkett that Mort v Woolf is not authority for the proposition that those accused of serious criminal offences are able to have freezing orders made against them without the applicants otherwise being able to establish the requirements in Rule 37A.05(4). It cannot be. But nor do I think that that was the import of Mr Messer’s submissions.
Instead, each application for a freezing order simply must turn on its own facts considered in light of basic evidentiary principles — including, where necessary, those concerning the drawing of inferences from evidence — as applied to the requirements in Rules 37A.02 and 37A.05, including as to whether, having regard to all of the circumstances, there is a danger that a prospective judgment of this Court will be wholly or partly unsatisfied because the relevant assets might be removed from Australia or disposed of, dealt with or diminished in value.
And, on the latter question in this case, I accept the substance of Mr Messer’s submission. In particular, in all of the circumstances, including the evidence of Mr Cohrs’ remarks on the voicemail to his solicitor, I think it is reasonable to infer, and I do so infer, that he was prepared to kill his brother and his mother in order to deal with the commercial proceedings before this Court. In turn, I think it is reasonable to infer, and I do so infer, that there is a substantial risk that a person who was prepared to go to those extreme lengths (in effect, to terminate proceedings in this Court by killing the chief witness against him) would be prepared to shift, dispose of, deal with or otherwise diminish his assets in such a way as to frustrate the Court’s process vis-à-vis the claim for damages by Mr Fernandez.
I accept that it would be more difficult for Mr Cohrs to deal with, dispose of or diminish his assets while he is in custody and while there are receivers in place (who hold funds on trust until directed by the Court how to disperse them). But it is far from impossible to take those steps. He could simply appoint a person to deal with his assets that are not the subject of the restraining order in any manner he sees fit and in ways that do not interfere with the orders made concerning the receivers.
Further, as Mr Messer submitted, given the serious criminal matters Mr Cohrs is facing or is to face in two States, there is likely to be a substantial delay before the civil action is concluded. Mr Tsiakis, for the receivers, suggested his clients’ work may be completed in a matter of months, thus well before the civil action is likely to be heard. After the receivers have gone, there will be less of a filter on Mr Cohrs’ ability to deal with his assets (except in respect of those subject to the restraining order).
Use of the Mr Cohrs’ assets for legitimate purposes
Submissions
As I understood him, Mr Plunkett’s second, but less strenuously argued, objection to the proposed order concerned the terms of paragraph 4.10 of the Practice Note, in so far as it provides that “[t]he order should exclude dealings by the respondent with assets for legitimate purposes, in particular: (a) payment of ordinary living expenses; (b) payment of reasonable legal expenses …”.
Mr Plunkett advised that he is instructed that the vast majority of Mr Cohrs’ assets are now under the control of the receivers, such that he has limited control over them. The receivers allow an amount to pay for the living expenses of his wife (or ex-wife) and daughter. This, he says, leaves him no money for the payment of his legal expenses, such that he is funding the defence to the current criminal and civil proceedings via loans from a friend.
In Mr Plunkett’s submission, if Mr Cohrs is unable to afford to pay for his own legal representation, it would be inappropriate to restrict his access to his own property even further. This, Mr Plunkett submits, is a further reason why the freezing order sought should not be made.
As I understood him, Mr Messer submitted that, if the freezing order were to impede Mr Cohrs’ ability to live or pay legal fees or pay other debts, he would be able to bring an application to vary the order. He could also approach the Court in the commercial proceedings. But, at the moment, there is no proper evidence before the Court to that effect.
Discussion
I accept Mr Messer’s submissions on this point. At present, there is no indication that making the freezing order sought, in the amount suggested, would work any particular hardship on Mr Cohrs. On the contrary, given the figures estimated by the receivers at present, there seems to be more than adequate funds to make the freezing order, in the amount suggested, without any significant impact on Mr Cohrs’ affairs, other than the intrusion into his property rights that necessarily come with the making of such an order. If there is any significant change in that regard, then, as Mr Messer suggested, Mr Cohrs could seek a variation from Mr Fernandez or, failing that, he could bring an application back to this Court for variation of the order.
Accordingly, I do not think it can be said at present that such an order would unnecessarily tie up Mr Cohrs’ assets and property. On the contrary, I am satisfied that, in all the circumstances, the balance of convenience is well in favour of the making of such an order.
Conclusion and proposed orders
For these reasons, I am satisfied that it is appropriate to make a freezing order.
As I said early in these reasons, I shall hear counsel on the precise terms of the freezing order, including whether an ancillary order of the type sought (concerning disclosure of assets) is still thought necessary.
Further, Mr Messer, Mr Plunkett and Mr Tsiakis agreed that, were I to make the order sought, there may need to be acknowledgment or accommodation within the order of the position of the receivers, and perhaps of the DPP as well.
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