Gordon v Glowberth Pty Ltd

Case [2024] NSWSC 104


Supreme Court


New South Wales

Medium Neutral Citation: Gordon v Glowberth Pty Ltd [2024] NSWSC 104
Hearing dates: 7 December 2023
Date of orders: 15 February 2024
Decision date: 15 February 2024
Jurisdiction: Equity - Duty List
Before: McGrath J
Decision:

See [87]

Catchwords:

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

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Civil Procedure Act 2005 (NSW)

Limitation Act 1969 (NSW)

Cases Cited:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63

Barwick v Goodridge [2011] NSWSC 1233; 255 FLR 245

Baycolt Investments v Raynard [2002] WASC 11

Beneficial Finance Corp Ltd v Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510

Caravelle Investments Ltd v Martaban Ltd (1999) 95 FCR 85; [1999] FCA 1501

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18

Garrett v GEL Custodians Pty Ltd [2012] NSWCA 197

Gordon v Glowberth Pty Ltd [2023] NSWCATAP 253

Lambidis v Commissioner of Police (1995) 37 NSWLR 320

Norman v Commissioner of Taxation(Cth) (1963) 109 CLR 9; [1963] HCA 21

Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45

Organic Marketing Australia Pty Ltd v Woolworths Ltd [2011] FCA 279

Panagopoulos v Panagopoulos [2022] NSWSC 1151

QBE Insurance (Aust) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186

Re Galtari Pty Ltd (in liq) [2018] NSWSC 917

Samootin v Shea [2010] NSWCA 371

Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540; [1988] FCA 557

Tyche Asset Management Pty Ltd v Flyland Development Group Pty Ltd [2021] NSWSC 1283

Category:Principal judgment
Parties: 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

  1. 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.

  2. 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

  1. The proceedings have involved repeated appearances before duty judges of this court, between which times the pleadings have been filed.

Freezing Orders

  1. On 20 September 2023, Mr Gordon commenced the proceedings by filing the summons in court before me as duty…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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