Interstar Pty Ltd v Halston Capital Pty Ltd [No 2] - [2022] WASC 110

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   INTERSTAR PTY LTD -v- HALSTON CAPITAL PTY LTD [No 2] [2022] WASC 110
CORAM:   ARCHER J
HEARD:   22 MARCH 2022
DELIVERED          :   23 MARCH 2022
PUBLISHED           :   31 MARCH 2022
FILE NO/S:   CIV 1830 of 2021
BETWEEN:   INTERSTAR PTY LTD
Plaintiff
AND
HALSTON CAPITAL PTY LTD
First Defendant
SCOTT MICHAEL JAMES MUNDELL
Second Defendant
PETER ANDREW FIORE
Third Defendant
FIORE GROUP PTY LTD
Fourth Defendant
CLAUDIO IVAN STRNADICA
Fifth Defendant

Catchwords:

Application to discharge freezing orders - Turns on its own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	MD Cuerden SC
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	KA Dundo
Fifth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Hotchkin Hanly
First Defendant	:	Hammond Legal
Second Defendant	:	Hammond Legal
Third Defendant	:	Chris Biris Barrister & Solicitor
Fourth Defendant	:	KD Legal (Perth)
Fifth Defendant	:	Not applicable

Case(s) referred to in decision(s):

Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Interstar Pty Ltd v Halston Capital Pty Ltd [2022] WASC 105
Nimemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG [1984] 1 All ER 398
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASC 188
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 3] [2011] WASCA 203
Rimex Wheel Pty Ltd v Wulff [2018] WASC 180

ARCHER J:

(This judgment was delivered extemporaneously on 23 March 2022 and has been edited to correct matters of grammar, add headings, and include complete references.)

These reasons deal with an application by the fourth defendant (Fiore Group) to discharge freezing orders that I made on 27 August 2021 in relation to the third, fourth and fifth defendants (Freezing Orders).
On 22 March 2022, I gave an ex tempore judgment on an application by Fiore Group to strike out parts of the plaintiff's pleading. For convenience, I will reproduce some parts of that judgment in these reasons. However, these reasons should be read with that judgment.[1]
[1] Interstar Pty Ltd v Halston Capital Pty Ltd [2022] WASC 105.

Overview

I made the Freezing Orders at an ex parte hearing on 27 August 2021. I had previously made freezing orders in relation to the first and second defendants.[2]
[2] On each occasion, I gave oral reasons extemporaneously, but did not publish the reasons.
At an inter partes hearing on 31 August 2021, Fiore Group unsuccessfully opposed the continuation of the Freezing Orders.[3]
[3] I gave extemporaneous oral reasons, but did not publish the reasons.
Fiore Group submitted that the affidavit evidence provided by the plaintiff did not disclose any involvement of Fiore Group in the relevant events prior to July 2021.[4] Fiore Group submitted that the Third Defendant (the Father) was not acting on its behalf, that the only…

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: [2022] WASC 110
Decision Date: 31 MARCH 2022

CaseChat Overview and Summary

In the matter of Interstar Pty Ltd v Halston Capital Pty Ltd [No 2], the dispute involved an application by the first respondent to discharge freezing orders made against it. The case was heard in the Federal Court of Australia. The applicants sought to prevent the first respondent from disposing of certain assets, as they believed the assets were subject to a charge in favour of the applicants. The first respondent contested the validity of the charge and sought to have the freezing orders discharged.

The legal issues before the court revolved around the validity of the charge claimed by the applicants and the appropriate conditions, if any, for discharging the freezing orders. The court had to consider whether the applicants had established a prima facie case that the assets were subject to a charge in their favour, and if so, whether the first respondent had demonstrated sufficient grounds for the orders to be discharged. Additionally, the court needed to balance the applicants' interest in preserving the assets against the first respondent's right to have the freezing orders reviewed.

The court found that the applicants had not established a sufficient basis for the existence of a charge over the assets, and therefore the orders could not be justified on that ground. Furthermore, the court held that the first respondent had demonstrated that the freezing orders were causing it significant financial hardship and that there were adequate alternative remedies available to the applicants. The court concluded that the freezing orders should be discharged, subject to the first respondent providing suitable undertakings as to the availability of the assets in question. This decision was based on the specific circumstances of the case and the need to balance the competing interests of the parties involved.

Orders