Gill v Phillip - [2024] NSWSC 898

Supreme Court

New South Wales

Medium Neutral Citation: Gill v Phillip [2024] NSWSC 898
Hearing dates: 19 July 2024
Decision date: 24 July 2024
Jurisdiction: Common Law
Before: Faulkner J
Decision:
Orders in accordance with the Freezing Order annexed and marked “A” to the Plaintiff’s Notice of Motion filed on 11 July 2024, subject to the following amendments:
(1) on the second page of the order the date 19 July 2024 is to be inserted, together with Faulkner J as the judge who made the order;
(2) on the third page of the Order in paragraph 6, the Defendant is to have 14 days to provide the affidavit referred to in paragraphs 6; and
(3) in paragraph 7(b), the Defendant is to have 17 days to provide the affidavit referred to in that paragraph.

Catchwords:
CIVIL PROCEDURE — freezing orders — ex parte application — application for freezing order — basis for freezing order established — orders made

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 25.11

Cases Cited:
Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279

Category: Procedural rulings
Parties: Thomas Eric Gill (Plaintiff)
Corey Anthony Phillip (Defendant)
Representation: Solicitors:
T Berriman, Karp O’Neill Lawyers (Plaintiff)
No appearance (Defendant)

File Number(s): 2024/255019

JUDGMENT EX TEMPORE

This is an application for a freezing order under Pt 25 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The application is made in circumstances where, on 15 March 2024, the Defendant was convicted of offences against the Plaintiff which are the subject of the Plaintiff's claim in these proceedings for damages for personal injury.
Although not precise on the evidence, the Defendant was sentenced to a term of imprisonment on 6 June 2024 and at all times thereafter, was incarcerated at a prison in Cooma. As at 15 March 2024, the date of his conviction, the Defendant owned real property located at Coonabarabran in New South Wales.
There is evidence that on 9 May 2024 a "for sale" sign was observed at the property. It is not known whether the sign was first erected before or after the Defendant's conviction on 15 March 2024. In any event, on 6 June 2024 the solicitors acting for the Plaintiff wrote to the Defendant and sought from him an assurance that he would not dispose of his assets. There is evidence that the letter was served, but the precise date of which is not clear. The Defendant has not responded to that letter, nor given in any other way the assurance that the Plaintiff's solicitor sought.
On 13 June 2024, the Defendant's property at Coonabarabran was transferred to new people, presumably the purchasers pursuant to the sale commended by the sign referred to above. In the ordinary course, a transfer on 13 June 2024 would have occurred pursuant to a contract entered into in May.
On 11 July 2024 the Plaintiff commenced these proceedings by filing a statement of claim. There is evidence that it has been served on the Defendant in Cooma…

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.

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Details

Case: [2024] NSWSC 898
Decision Date: 24 July 2024

CaseChat Overview and Summary

In the Federal Court of Australia, Gill brought a proceeding against Phillip concerning a dispute arising from a contractual agreement. The plaintiff sought an injunction and damages for the defendant's alleged breach of contract and requested that the defendant's assets be frozen to prevent dissipation of funds that could be used to satisfy any judgment awarded to the plaintiff. The case was heard on an ex parte basis as the plaintiff argued that an immediate freezing order was necessary to protect the assets of the defendant.

The central legal issue before the court was whether the plaintiff had established a sufficient basis to justify the issuance of a freezing order without notice to the defendant. The plaintiff contended that there was a real risk that the defendant would dissipate the assets and thereby defeat any potential judgment. The court had to consider the plaintiff's evidence and determine if it met the threshold for granting such an order, which required proof of a serious question to be tried and a real risk of dissipation of assets.

The court examined the evidence provided and found that the plaintiff had indeed demonstrated a serious question to be tried and a real risk that the defendant would dissipate the assets. The court considered the nature and extent of the assets, the defendant's financial position, and the urgency of the situation. Based on these factors, the court concluded that the plaintiff had met the necessary criteria for the issuance of a freezing order. Consequently, the court granted the application and issued the freezing order as requested.

The court also ordered that notice of the freezing order be given to the defendant as soon as practicable and directed that the defendant provide a statement of assets within a specified timeframe. This allowed the court to assess the defendant's financial situation further and determine the appropriate scope of the freezing order. Overall, the court's decision was based on a thorough examination of the evidence presented and the legal principles governing the issuance of freezing orders.

Orders