Gordon v Glowberth Pty Ltd (No 2) - [2024] NSWSC 263

Supreme Court

New South Wales

Medium Neutral Citation: Gordon v Glowberth Pty Ltd (No 2) [2024] NSWSC 263
Hearing dates: On the papers, submissions dated 5 March 2024
Date of orders: 15 March 2024
Decision date: 15 March 2024
Jurisdiction: Equity - Duty List
Before: McGrath J (in chambers)
Decision:
Existing freezing orders discharged, new freezing orders made and order for costs in the cause

Catchwords:
CIVIL PROCEDURE — interim preservation — freezing orders — form of freezing orders to give effect to principal judgment — HELD — orders proposed by plaintiff in standard form granted
COSTS — party/party — mixed outcome — general rule that costs follow the event — application of the rule and discretion — discretion to award indemnity costs — where no unreasonable conduct or delinquency on the plaintiff’s part — where the overall practical result favoured the plaintiff — HELD — order that costs be costs in the cause

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Practice Note SC Gen 14
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109
Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) (No 2) [2024] NSWCA 21
Croc’s FranchisingPty Ltd v Alamdo Holdings Pty Ltd (No 3) [2023] NSWCA 316
Gordon v Glowberth Pty Ltd [2024] NSWSC 104

Category: Costs
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

This judgment deals with the two remaining issues to be decided arising from the determinations I made in Gordon v Glowberth Pty Ltd [2024] NSWSC 104 (Principal Judgment), in circumstances where the parties are unable to agree on proposed short minutes of order to give effect to the Principal Judgment. Those two issues are the new form of freezing orders to be made against Glowberth Pty Ltd and the question of costs.
This judgment assumes familiarity with the Principal Judgment. Shorthand and defined terms used in the Principal Judgment are used in this judgment.
I begin with a brief summary of my conclusions in the Principal Judgment before turning to consider the submissions of Mr Gordon, Glowberth and the Official Trustee in Bankruptcy as well as the applicable legal principles and my conclusions on the application of those principles to the issues that remain in dispute.

PRINCIPAL JUDGMENT

At the hearing before me on 7 December 2023, Glowberth applied to discharge the ex parte freezing orders that were made by me as duty judge on 20 September 2023 in favour of Mr Gordon, and which were subsequently varied and extended by consent and without admission by me on 22 September 2023 (Original Freezing Orders) (Principal Judgment at [1]).
Due to…

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 263
Decision Date: 15 March 2024

CaseChat Overview and Summary

The case of Gordon v Glowberth Pty Ltd (No 2) involved the plaintiff, Gordon, seeking interim preservation and freezing orders against the defendant, Glowberth Pty Ltd. The matter was heard in a relevant Australian court. The plaintiff argued that the defendant held assets that needed to be preserved to ensure satisfaction of a potential judgment. The court was tasked with determining whether such orders should be granted in the form proposed by the plaintiff, and if so, the appropriate allocation of costs between the parties.

The legal issues before the court included the form and scope of the freezing orders necessary to adequately preserve the defendant's assets pending the final determination of the case. Additionally, the court had to decide on the appropriate costs order given the mixed outcome of the proceedings, where the plaintiff had achieved success on some issues but not others. The court's decision hinged on whether the plaintiff had acted unreasonably or whether the overall practical result of the proceedings favoured the plaintiff.

The court found that the plaintiff's proposed form of freezing orders was appropriate and necessary to ensure the preservation of the defendant's assets. The court noted that the plaintiff had not acted unreasonably and that the overall practical result of the proceedings had favoured the plaintiff. Consequently, the court exercised its discretion to award costs in the plaintiff's favour, but not as indemnity costs. Instead, the court ordered that the costs be costs in the cause, reflecting the mixed outcome of the litigation.

Orders