CIVIL PROCEDURE — interim preservation — freezing orders – application to discharge ex parte freezing orders — HELD — freezing orders discharged and a new form of freezing orders made
Jerry Gordon (Plaintiff) Glowberth Pty Ltd (First Defendant) Official Trustee in Bankruptcy (Second Defendant)
Representation:
Counsel: CD Wood SC with VN Misra (Plaintiff) D Allen (First Defendant) CD McMeniman (Second Defendant)
Solicitors: Laliotis Xuereb Lawyers (Plaintiff) Avondale Lawyers (First Defendant) Australian Government Solicitor (Second Defendant)
File Number(s):
2023/300351
Publication restriction:
Nil
JUDGMENT
INTRODUCTION
This is an application by the first defendant, Glowberth Pty Ltd, to discharge ex parte freezing orders made by me as duty judge on 20 September 2023 in favour of the plaintiff, Jerry Gordon, which were subsequently varied and extended by consent and without admission by me on 22 September 2023.
At the heart of all of the issues in the proceedings is a property known as 258 Sackville Ferry Road, Sackville North, New South Wales (Sackville Property). During relevant times, Glowberth was the owner of the Sackville Property and Mr Gordon was resident at the Sackville Property as tenant.
PROCEDURAL HISTORY
The proceedings have involved repeated appearances before duty judges of this court, between which times the pleadings have been filed.
Freezing Orders
On 20 September 2023, Mr Gordon commenced the proceedings by filing the summons in court before me as duty…
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
AGLC
Gordon v Glowberth Pty Ltd [2024] NSWSC 104
Case
[2024] NSWSC 104
Decision Date
CaseChat Overview and Summary
Gordon v Glowberth Pty Ltd involved a dispute where Gordon sought to enforce interim preservation and freezing orders against Glowberth Pty Ltd. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether the ex parte freezing orders, which had been made against Glowberth Pty Ltd to preserve assets pending the resolution of Gordon's claims, should be discharged and, if so, whether a new form of freezing orders should be issued. The court had to consider the balance between preserving assets and the rights of the defendant to contest the orders.
The court acknowledged the need to protect the assets in question to ensure that any judgment in Gordon's favour would be enforceable. However, the court also recognised that the defendant had a right to challenge the orders and that the initial ex parte nature of the orders did not necessarily mean they should remain in place without further scrutiny. The court found that the application to discharge the ex parte freezing orders was well-founded, particularly given the evidence provided by the defendant and the potential for prejudice if the orders were not discharged. The court concluded that a new form of freezing orders should be made, tailored to address the specific circumstances and evidence presented by both parties.
After careful consideration, the court discharged the ex parte freezing orders and made a new form of freezing orders. The new orders were designed to balance the need to preserve assets with the rights of the defendant to contest the claims. The court provided detailed reasons for its decision, focusing on the evidence and arguments presented by both sides. The final orders reflect a nuanced approach, aiming to protect the assets while also ensuring that the defendant's rights are not unduly prejudiced.