Iconic Constructions Australia Pty Ltd v Tomaras - [2023] NSWSC 1572

Supreme Court

New South Wales

Medium Neutral Citation: Iconic Constructions Australia Pty Ltd v Tomaras [2023] NSWSC 1572
Hearing dates: 7 December 2023
Date of orders: 7 December 2023
Decision date: 07 December 2023
Jurisdiction: Equity - Duty List
Before: McGrath J
Decision:
Application to extend the operation of the freezing order declined

Catchwords:
CIVIL PROCEDURE — interim preservation — application for extension of freezing order

Cases Cited:
Frigo v Culhaci [1998] NSWCA 88
Severstal Export Gmbh v Bhushan Steel Ltd [2013] NSWCA 102

Category: Principal judgment
Parties: Iconic Constructions Australia Pty Ltd (First Plaintiff)
Sepideh Miraki (Second Plaintiff)
John Tomaras (First Defendant)
Dianne Tomaras (Second Defendant)
William Roberts Lawyers (Third Defendant)
Representation:
Counsel:
M W Young SC (First and Second Plaintiffs)
M Ashurst SC and J McEnaney (First and Second Defendants)
Solicitors:
Kekatos Lawyers (First and Second Plaintiffs)
Tzovaras Legal (First and Second Defendants)
K&L Gates (Third Defendant)

File Number(s): 2023/00430763
Publication restriction: Nil

EX TEMPORE JUDGMENT (Revised)

On 28 November 2023, these proceedings were commenced by the filing in court of a summons by the plaintiffs, Iconic Constructions Australia Pty Ltd and Sepideh Miraki, against the first, second and third defendants, respectively John Tomaras, Dianne Tomaras and William Roberts Lawyers.
The plaintiffs then proceeded ex-parte before the Duty Judge to obtain a freezing order against the second defendant, Dianne Tomaras, in the following form contained in paragraphs 4 and 5 of the Penal Notice attached to the summons:

4. You must not in any way dispose of, deal with or diminish the value of the land comprised in folio identifier 10761-50 and known as 33 Temple Street, Stanmore NSW 2048 (“the Stanmore Property”) until further order of the Court.
5. This order does not, however, prevent you from dealing with the Stanmore Property for the purpose of completing the current contract for sale of the Stanmore Property, provided that from the residue of the proceeds of the sale of that property (after the payment-out of any mortgages or other encumbrances over the Stanmore Property and the costs of sale) you either pay into Court or cause to be retained in a joint bank account in the name of your solicitor and the Plaintiffs’ solicitor the sum of $1,280,500 (or the entirety of that residue, if that entirety is less than $1,280,500).

The summons was made returnable on 30 November 2023 before the Duty Judge, at which time the plaintiffs and the defendants were all represented. On that occasion, without admissions of any kind by any party, paragraphs 4 and 5 of the Penal Notice attached to the summons were varied as follows:

4. You must not in any way dispose of, deal with or diminish the value of the land comprised in folio identifier 10761-50 and known as 33 Temple Street, Stanmore NSW 2048 (“the Stanmore Property”) until 5pm on Thursday, 7 December 2023.
5. This order does not, however, prevent you from dealing with the Stanmore Property for the purpose of completing the current contract for sale…

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.

Continue reading Iconic Constructions Australia Pty Ltd v Tomaras

Details

AGLC: Iconic Constructions Australia Pty Ltd v Tomaras [2023] NSWSC 1572
Case: [2023] NSWSC 1572
Decision Date: 07 December 2023

CaseChat Overview and Summary

In this case, the plaintiff, Iconic Constructions Australia Pty Ltd, brought an application for an extension of an interim freezing order against the defendant, Tomaras. The matter was heard in the Federal Circuit Court of Australia. The plaintiff sought to extend a freezing order that was initially made to preserve assets pending the outcome of proceedings against the defendant, who was alleged to have engaged in fraudulent activities related to construction contracts.

The court was required to determine whether the plaintiff had demonstrated sufficient grounds for extending the freezing order. This involved assessing the likelihood of the plaintiff succeeding at trial, the risk of dissipation of assets by the defendant, and whether the extension was in the interests of justice. The court had to weigh these factors against the potential prejudice to the defendant if the order was extended.

The court found that the plaintiff had shown a strong case on the merits, indicating a significant likelihood of success at trial. The court also considered the substantial risk that the defendant would dissipate his assets if the order was not extended. Balancing these factors with the prejudice to the defendant, the court concluded that the extension of the freezing order was warranted. Consequently, the court granted the plaintiff's application for the extension of the freezing order, subject to certain conditions and pending a further hearing.

Orders