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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 Correctional Centre on 12 July 2024, namely, a copy of the letter under the cover of which the Statement of Claim was served which had apparently been signed and dated by the Defendant and marked with the word "received". In the same way, the Defendant has been served with the Notice of Motion which is before the Court today, together with a notice of listing for today.

6. Turning then to the Notice of Motion. By paragraph 1 of that Notice of Motion, the Plaintiff seeks a freezing order, in support of which the Plaintiff reads an affidavit of Daphne Lam sworn on 11 July 2024 and an affidavit of Daphne Lam sworn on 18 July 2024. No notice of appearance has been filed on behalf of the Defendant, although, having regard to his incarceration that may not be unexpected.

7. The Notice of Motion was returned before the Common Law Registrar this morning and referred to me sitting as Duty Judge. There was no appearance on behalf of the Defendant.

8. UCPR 25.11 provides:

(1) The Court may make an order (a "freezing order" ), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court's process by seeking to meet a danger that a judgment or 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.

9. In order to decide whether to exercise its discretion and make a freezing order under UCPR 25.11, the Court firstly needs to consider whether the Plaintiff has demonstrated and has, a good, arguable case on a justiciable cause of action: Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279 at [69] (McColl JA).

10. The essential ingredients of the Plaintiff's cause of action, as contemplated by the Statement of Claim, are the abusive conduct of the Defendant and the suffering of loss or damage by the Plaintiff. In these circumstances, the conduct upon which the Plaintiff sues is the same conduct which the Defendant was convicted on 15 March 2024 and so, the Plaintiff has demonstrated that he has a good, arguable cause of action in these proceedings. There is no evidence directly addressed to whether the Plaintiff has suffered loss or damage as a result of that conduct, but it might reasonably be inferred, having regard to the nature of the conduct in question.

11. It is also necessary for the applicant of a freezing order to demonstrate that there is a danger that any judgment attained by them will be wholly or partly unsatisfied because the Defendant's assets might be disposed of or dealt with in a way that diminishes their value: Samimi v Seyedabadi at [72]. That requirement is demonstrated by the Plaintiff on this application, because firstly, it may be inferred that the property at Coonabarabran was put up for sale after the Defendant was convicted on 15 March 2024. The evidence does not establish that with certainty and there is certainly no evidence about the Coonabarabran property market. Having regard to the two-month period between the conviction and the observation of the "for sale" sign, there is at least a reasonable risk that the property was put on the market after the Defendant was convicted.

12. Secondly, the Plaintiff’s solicitor quite sensibly and reasonably wrote to the Defendant to seek his assurance that he would not dissipate his assets. I am satisfied, on the evidence, that the Defendant received the letter dated 6 June 2024 in which that request was made. There has been no response from the Defendant and the assurance which was sought has not been given. Even allowing for the difficulties arising from the fact the Defendant is incarcerated, the fact the assurance has not been given, together with the possibility that the Defendant's property at Coonabarabran was put on the market after he was convicted, sufficiently demonstrates that there is a danger that the Defendant is dissipating his assets and that therefore there is a prospect that any judgment obtained by the Plaintiff against the Defendant will be unsatisfied.

13. The Plaintiff offers to give the undertakings as to damages which will, to that extent, protect the Defendant.

Orders

14. In those circumstances, I make the 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.

**********

Decision last updated: 24 July 2024