Isaac Daniel Wineberg v Khader George Ghamrawi (also known as Jacoub Ghamraoui)

[2012] NSWSC 238

Supreme Court

New South Wales

Medium Neutral Citation:	Isaac Daniel Wineberg v Khader George Ghamrawi (also known as Jacoub Ghamraoui) [2012] NSWSC 238
Hearing dates:	9 March 2012
Decision date:	09 March 2012
Jurisdiction:	Equity Division - Duty List
Before:	Ball J
Decision:	Application for a freezing order be dismissed with costs
Catchwords:	PROCEDURE - freezing order - purpose of freezing order not to provide security for judgment - no evidence defendant seeking to frustrate normal processes of court - where defendant goes by different names and has entered into contract to sell house
Cases Cited:	Lake v Crawford (No 2) [2010] NSWSC 419 Print Management Australia v Pasupati [2008] NSWSC 342
Category:	Interlocutory applications
Parties:	Isaac Daniel Wineberg (First Plaintiff) Yvonne Claire Wineberg (Second Plaintiff) Kahder George Ghamrawi (aka Jacoub Chamraoui) (Defendant)
Representation:	D E Baran (Plaintiffs) D A Lloyd (Defendant) Terence Leland Stern (Plaintiffs) Parramatta City Legal (Defendant)
File Number(s):	2012/73623

EX TEMPORE JUDGMENT

1. This is an application by the plaintiffs for a freezing order restraining the defendant from dealing with the proceeds of the sale of a house that the defendant owns and has entered into a contract to sell.

1. The defendant operates as a builder through a company known as G&S Building Group Pty Ltd (GSBG).

1. In November 2010, the plaintiffs entered into a building contract with the GSBG to perform renovation works on their home at Dover Heights. It appears that the intention of the contract was that the plaintiffs would be owner-builders and that GSBG would perform certain parts of the scope of works. The total contract price for the works to be performed by GSBG was expressed to be $616,000.

1. GSBG commenced work on the site shortly after the contract was entered into and work continued throughout 2011. Towards the end of 2011, however, disputes broke out between the plaintiffs and the defendant concerning workmanship which is said to be defective. That dispute became very acrimonious and ultimately the plaintiffs terminated the building contract. There is evidence before me that suggests that the costs of remedying the defects may be in excess of $500,000.

1. The plaintiffs have not commenced substantive proceedings either against the defendant or GSBG in respect of the alleged defects. Nonetheless, they seek a freezing order in aid of those substantive proceedings. It is not entirely clear from the material before me how the case against GSBG will be put. However, Mr Baran, who appeared for the plaintiffs, submitted that the plaintiffs will allege that GSBG made misleading statements to the plaintiffs that it was licensed to carry on the building work that was the subject of the contract and that the defendant was knowingly concerned in those misleading statements as the person who made them. It is on that basis that the plaintiffs say they have a claim against the defendant.

1. I am prepared to accept for present purposes that there is a serious question to be tried concerning whether the plaintiffs have a case against the defendant. The question remains whether the plaintiffs are entitled to a freezing order in aid of that claim.

1. It has been repeatedly said by the court that the purpose of a freezing order is not to provide security to a plaintiff in the event that the plaintiff is successful in obtaining judgment against the defendant. As Harrison J said in Lake v Crawford (No 2) [ 2010] NSWSC 419 at [17]:

[T]he jurisdiction to grant freezing orders is not intended to enable a plaintiff or judgment debtor to obtain security for its judgment in advance of execution. It is founded on the jurisdiction of the court to prevent abuses of its process by preventing a defendant or judgment debtor from embarking on a course of conduct that would have the effect of defeating the court's jurisdiction. The fact that a judgment may not be satisfied for reasons of impecuniosity does not mean that there is an abuse of process

1. Similarly, in Print Management Australia Pty Ltd v Pasupati [2008] NSWSC 342 at [14] Barrett J said:

A freezing order is warranted only if, in the words of Bryson J in Acquasun Pty Ltd v Coverdale Ram Pty Ltd [2000] NSWSC 1146, there has been "conduct on the part of the defendants which can reasonably be interpreted as potentially having the effect of frustrating the ordinary processes of the court and the enforcement of its judgments or of being intended to do so or of being in any way evasive indicating dishonesty or otherwise indicating actually or potentially that the assets of the company have been or will be dealt with in an irregular way".

1. In this case, Mr Baran seeks to justify the freezing order by reference to 2 matters. First, he submits that there is some evidence that the defendant has engaged in conduct that he describes as dishonest because the defendant has, on occasions, used different names.

1. As to that point, the defendant's solicitor has sworn an affidavit in opposition to the application explaining the circumstances in which those name changes occurred. The nationality of the defendant is not clear from the evidence, but it is apparent that in part the name changes have occurred because the defendant, on occasions, has chosen to use an Anglicised version of his name rather than his actual name. In my opinion, the conduct that the defendant has engaged in in relation to the use of different names provides no evidence that he has engaged in any dishonesty or that he is intending to dispose of his assets for the purpose of defeating the plaintiffs' claim.

1. The second type of evidence that the plaintiffs point to as justifying a freezing order is evidence that the defendant entered into a contract for the sale of his house in February 2012. It now appears that that contract fell through and the defendant has entered into a further contract for the sale of his house which is not yet completed.

1. Mr Baran submits that the timing of those contracts is evidence that the defendant has chosen to sell his house in light of the dispute that the defendant has with the plaintiffs and for the purpose of defeating any claim that the plaintiffs have against him personally.

1. In my opinion, that evidence is not sufficient to establish that the defendant is seeking to frustrate the normal processes of the court. The evidence is that the defendant entered into an agency agreement with a real estate agent for the sale of his house in June 2011, which was well before the current dispute surfaced.

1. There is no other material before me which suggests that the defendant is taking steps either to leave the jurisdiction or to realise assets for the purpose of wrongly depriving the plaintiffs of any judgment that they might obtain.

1. For those reasons the application for a freezing order should be dismissed with costs.

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