Heaven Builders Pty Ltd v Moustafa (No 2) - [2024] ACTSC 201

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Heaven Builders Pty Ltd & Ors v Moustafa & Anor (No 2)
Citation:	[2024] ACTSC 201
Hearing Date:	21 June 2024
Decision Date:	21 June 2024
Reasons Date:	28 June 2024
Before:	Taylor J
Decision:	(1) The defendants are directed to pay forthwith into the Supreme Court the proceeds of the sale of the Property at 1 Trewenack St, Taylor ACT 2913 net of sales expenses and the registered mortgagee’s discharge amount pending resolution of Heaven Builders Pty Ltd ACN 645 316 865 v Nour Moustafa Abdelhameed and Marwa Mohamed Elsaied Hassan Keshnk ACT Magistrates Court No. CS 182 of 2022 or further order of the Court. (2) Costs are reserved.
Catchwords:	CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Ex Parte Application – Freezing order – whether evidence establishes a good, arguable case – whether there is a real risk of defendants dissipating assets – whether the balance of convenience favours making the orders – whether balance of convenience favours granting the freezing order
Legislation Cited:	Court Procedure Rules 2006 (ACT), rr 741, 743 Land Titles Act 1925 (ACT), s 107C
Cases Cited:	Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961 Chong v Huang [2021] ACTSC 310 Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft m.b.H & Co K.G., The Niedersachen [1983] 1 WLR 1412; [1984] 1 All ER 398 Owen v Owen [2019] ACTSC 108 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Parties:	Heaven Builders Pty Ltd ( First Plaintiff) Khalil Khan Khattak ( Second Plaintiff) Muhammad Shoaib Khan Naizi ( Third Plaintiff) Mice Kljusuric ( Fourth Plaintiff) Syeda Naila Gul Gul ( Fifth Plaintiff) Nour Moustafa Abeldhameed Moustafa ( First Defendant) Marwa Mohamed Elsaeid Hassan Keshk ( Second Defendant)
Representation:	Counsel W D B Buckland ( Plaintiffs) No appearance ( Defendants)
Solicitors Bradley Allen Love ( Plaintiffs) No appearance ( Defendants)
File Number:	SC 185 of 2024

TAYLOR J:

Introduction

1․On 21 June 2024, the plaintiff sought an urgent duty listing to seek an ex parte freezing order against the defendants, concerning the sale of a property. The property is land located at Block 11 Section 71, Taylor, in the Australian Capital Territory (ACT) more commonly known as 1 Trewenack St, Taylor, ACT 2913 (the Property).
2․The first plaintiff sought orders by way of an originating application filed on 31 May 2024. On 14 June 2024 orders were made granting leave to lodge a caveat on the Property. I heard the urgent, ex parte application in relation to the freezing order late in the afternoon of 21 June 2024. I made a freezing order in the terms sought by the plaintiff, with reasons to follow. These are those reasons.

Evidence

3․The evidence led in support of the application included two affidavits. The first was affirmed by Mr Benjamin Grady on 21 June 2024. The second affidavit was affirmed by Mr Basem Seif, also on 21 June 2024. Both Mr Grady and…

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] ACTSC 201
Decision Date: 21 June 2024

CaseChat Overview and Summary

Heaven Builders Pty Ltd sought an ex parte freezing order against Nour Moustafa Abdelhameed and Marwa Mohamed Elsaied Hassan Keshnk to prevent the defendants from dissipating assets following a property sale. The defendants opposed the application. The court had to determine whether there was a good, arguable case that the defendants had assets that they could dissipate, whether there was a real risk of dissipation, and whether the balance of convenience favoured making the orders. The court found that there was a good, arguable case that the defendants had dissipated assets and there was a real risk of further dissipation. The court also found that the balance of convenience favoured granting the freezing order.

The court held that Heaven Builders had established a good, arguable case that the defendants had dissipated assets and there was a real risk of further dissipation. The court found that the defendants had sold a property and had not paid the plaintiff the outstanding balance of the sale price. The court also found that the defendants had no reasonable explanation for their failure to pay the plaintiff and had not provided any evidence to suggest that they had used the proceeds of the sale for legitimate expenses. The court held that the balance of convenience favoured making the orders because the plaintiff had established a good, arguable case that the defendants had dissipated assets and there was a real risk of further dissipation.

The court held that the balance of convenience favoured granting the freezing order because the plaintiff had established a good, arguable case that the defendants had dissipated assets and there was a real risk of further dissipation. The court found that the plaintiff had suffered or would suffer substantial injustice if the orders were not made and that the defendants would not suffer significant injustice if the orders were made. The court also found that the orders were necessary to prevent the defendants from dissipating assets and to ensure that the plaintiff could recover the outstanding balance of the sale price. The court granted the freezing order and directed the defendants to pay the proceeds of the sale into the Supreme Court pending resolution of the underlying proceeding.

Orders

Orders of the court

(1) The defendants are directed to pay forthwith into the Supreme Court the proceeds of the sale of the Property at 1 Trewenack St, Taylor ACT 2913 net of sales expenses and the registered mortgagee’s discharge amount pending resolution of Heaven Builders Pty Ltd ACN 645 316 865 v Nour Moustafa Abdelhameed and Marwa Mohamed Elsaied Hassan Keshnk ACT Magistrates Court No. CS 182 of 2022 or further order of the Court.

(2) Costs are reserved.

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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