Homsy v Ward

[2003] NSWSC 742

CITATION:	Homsy v Ward [2003] NSWSC 742
HEARING DATE(S):	10/07/03; 11/07/03
JUDGMENT DATE:	11 July 2003
JUDGMENT OF:	Shaw J
DECISION:	Confirm orders made on 10/07/03.
CATCHWORDS:	Practice and Procedure - interlocutory orders - mareva order - applicable principles
CASES CITED:	Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; Patterson v BTR Engineering (Australia) Ltd (1989) 18 NSWLR 319;
PARTIES :	Margaret Natalie Ann Homsy - Plaintiff Trevor Allan Ward - Defendant
FILE NUMBER(S):	SC 20169/03
COUNSEL:	B Quinn - Plaintiff M Heath - Defendant
SOLICITORS:	Nemes Thomas & Co Solicitors - Plaintiff Bradfield Anderson Solicitors - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Shaw J

11 July 2003

20169 of 2003

Margaret Natalie Ann Homsy (Plaintiff)

v

Trevor Allan Ward (Defendant)
JUDGMENT

1 Shaw J: In this case the applicant for interlocutory orders has filed a statement of claim on 3 July 2003 and the plaintiff, Ms Homsy, has asserted a case against the defendant, Mr Trevor Allan Ward, based upon injuries said to have been inflicted upon the deceased as a result of the defendant’s alleged assault and there is a claim for loss of financial support. The particulars are set out in the statement of claim in that respect.

2 There are particulars of the deceased’s non-financial support which are also set out in that statement of claim.

3 The application before the court today is one for a Mareva order; with the object of restraining the dissipation of property possessed by the defendant: see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380.

4 Mr Ward has been charged with the murder of Craig Bradley Buckley. He has been granted bail in respect of that charge. This is obviously a serious matter which will need to be dealt with by the criminal courts in this State but it is against that background that an application for an interim preservation order has been made.

5 The authority of Patterson v BTR Engineering (Australia) Ltd (1989) 18 NSWLR 319, a judgment of the Court of Appeal, indicates that the essential test for the grant of an injunction of this kind is; first, that there needs to be a prima facie cause of action against the defendant; and second, there needs to be made out by the applicant for the orders the existence of a danger that, by reason of the defendant’s absconding or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied.

6 In relation to the first point; that is, a prima facie case, there is no issue between the parties. It is accepted, at least for the purposes of this application, that there is a prima facie cause of action against the defendant. So the question comes down to whether there is some evidence that there is a danger or, one might say paraphrasing the criterion, some tangible risk that the assets would be dissipated.

7 I take the view that there is sufficient evidence of the potential for the dissipation of assets that has been put before this court by the application for the Mareva injunction and I refer to the affidavit of Mr Ward sworn on 10 July 2003 which has been admitted into evidence. This material has been put before the court very properly by counsel for Mr Ward, in accordance with his duty to the court. It indicated that Mr Ward is a self funded retiree. It says that:

“My wife and I survive using funds held in a Commonwealth Bank account [which is specified]. The account is in my wife’s name only

and goes on to say:

These funds had previously been held in a Colonial First State investment account in my name but were transferred several days prior to the hearing in my Supreme Court bail application. The funds were transferred in anticipation of their being required in connection with any bail condition and prior to me having knowledge of these proceedings.

8 The orders sought in the summons are of far reaching effect but I do not see that they fundamentally prejudice the position of the defendant in these proceedings because of the fact that it has been made clear, both in the express terms of the orders and in the submissions that have been put to this Court, that the defendant would not be deprived of living expenses; that is, he would be able to expend monies to live in the ordinary course of his situation, that he would not be deprived of funds which would provide the cost of these proceedings, so that they can be paid. But, in particular, what was of concern to me was that the defendant would be able to provide the reasonable costs of defending the serious charges against him and, as I understand it, both in the text of the orders and in what has been said from the Bar table, the defendant would be able to expend monies to defend these charges against him.

9 I must say that that is my primary concern.

10 So, I find that there is some danger or tangible risk of assets being dissipated and that, therefore, the orders are prima facie justified.

11 What I have said is predicated upon the basis that the plaintiff in these proceedings is giving the usual undertaking as to damages.

12 In the light of the observations I have made, I would like to give counsel the opportunity to have a discussion during the afternoon, bearing in mind at least one of the counsel is otherwise occupied in another court.

13 I would, therefore, continue the interim orders that I have so far made. Secondly, I re-list the matter at 4.30pm this afternoon.

oOo

Last Modified: 08/18/2003