Fishburn v Ferguson

[2019] NSWSC 542

Supreme Court

New South Wales

Medium Neutral Citation:

Fishburn v Ferguson [2019] NSWSC 542

Hearing dates:

3 May 2019

Decision date:

03 May 2019

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

1. Until the next hearing in this matter, there be a freezing order pursuant to r 25.14 of the Uniform Civil Procedure Rules 2005 (NSW) against the defendant, Robert Ferguson, and the defendant’s wife, Judith Bray-Ferguson in accordance with the draft freezing orders attached to the notice of motion filed 12 April 2019.

 

2.   The defendant is to file any defence against the notice of motion on or before 17 May 2019.

 3.   The plaintiff is granted leave to approach the Registrar to seek a hearing date for the notice of motion filed 12 April 2019 on or about 31 May 2019

Catchwords:

CIVIL PROCEDURE — Interim preservation — Freezing orders

Category:

Procedural and other rulings

Parties:

Yvette Fishburn (Plaintiff)
Robert Ferguson (Defendant)

Representation:

Counsel:
P Allport (Plaintiff)
In person (Defendant)

  Solicitors:
AJ Gallagher Solicitors & Conveyancers (Plaintiff)

File Number(s):

2018/000377345

Judgment

1. HIS HONOUR: In this matter the plaintiff has filed a notice of motion seeking an order ex parte to freeze the assets of the defendant and the defendant’s wife. The plaintiff seeks leave to amend one aspect of the orders sought, in particular order 1(ii), by changing the word “plaintiffs” to “defendants”. Leave is granted and that change is made.

2. Although the order was sought ex parte, the defendant, Mr Robert Ferguson, has attended in person unrepresented today. I have read the affidavit in support of the notice of motion, and I note that on the Court file there is a document purporting to be a document-styled defence filed on 18 April 2019. The document appears to comprise a large number of attachments but not an affidavit or any notice of motion.

3. Further, it is not clear whether it is intended as a defence to the notice of motion or to the initiating documentation in this matter.

4. Counsel for the plaintiff, Mr Allport, has discussed the matter before the Court today, during the course of a brief adjournment, with the defendant. Subsequently, he has amended his application seeking, instead, that there be an order for the freezing of assets until the matter returns to Court in approximately four weeks’ time. As well, he is seeking that there be a timetable whereby the defendant is to file any defence to the notice of motion on or by Friday 17 May 2019.

5. The plaintiff proposes that the next hearing date be on Friday 31 May 2019, but it is not appropriate for me as the duty judge to bind the Court with a hearing date. The appropriate manner in which a hearing date is to be fixed is for the plaintiff to approach the Registrar to obtain one in about four weeks hence on or about 31 May 2019 and I grant him leave to do so.

6. I have attempted to explain to the defendant in ordinary language the meaning and consequences of an order freezing assets. I understand that one of the properties owned by the defendant and his wife is currently on the market for sale. I have explained to the defendant that keeping it on the market would be contrary to the obligations of compliance with an order for freezing assets.

7. The orders sought are in respect of both Mr Ferguson and his wife, Judith Bray-Ferguson. The defendant has indicated that they have been separated for some weeks but, having regard to their legal status in relation to assets, I consider it appropriate for Judith Bray-Ferguson to also be the subject of an order freezing jointly owned assets.

8. Accordingly, I formally make the following orders:

1. Until the next hearing in this matter, there be a freezing order pursuant to r 25.14 of the Uniform Civil Procedure Rules 2005 (NSW) against the defendant, Robert Ferguson, and the defendant’s wife, Judith Bray-Ferguson in accordance with the draft freezing orders attached to the notice of motion filed 12 April 2019.

2.   The defendant is to file any defence against the notice of motion on or before 17 May 2019.

3.   The plaintiff is granted leave to approach the Registrar to seek a hearing date for the notice of motion filed 12 April 2019 on or about 31 May 2019.

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Decision last updated: 15 May 2019