Jingalong Pty Ltd v Todd (No 2)

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Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Jingalong Pty Ltd v Todd (No 2) [2014] NSWCA 347
Hearing dates:9 October 2014
Decision date: 09 October 2014
Before: Gleeson JA
Decision:

See paragraph [16] and Schedule

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PROCEDURE - Mareva orders - Application for freezing order pending hearing and outcome of appeal where there is an unpaid costs order of the judgment below - Application made on urgent ex parte basis - Whether to make interim freezing order, pending return of the motion, to restrain respondent from dealing with the proceeds of sale of property where likely that net proceeds of sale will be dissipated
Legislation Cited: Real Property Act 1900 (NSW) s 42
Cases Cited: Jingalong Pty Ltd v Todd [2014] NSWCA 330
Todd v Jingalong Pty Ltd [No 2] [2014] NSWSC 440
Category:Interlocutory applications
Parties: Gregory George Todd (Applicant)
Jingalong Pty Ltd (First respondent)
Brett Pernice (Second respondent)
Representation: Counsel:
D Brezniak (Applicant)
Solicitors:
Johnston Tobin (Applicant)
File Number(s):2014/137752
 Decision under appeal 
Jurisdiction:
9111
Citation:
Todd v Jingalong Pty Ltd [2014] NSWSC 362
Date of Decision:
2014-03-31 00:00:00
Before:
Kunc J
File Number(s):
2012/344643

Judgment

  1. HIS HONOUR: This is an application for urgent relief on an ex parte basis for orders in the nature of freezing orders against Jingalong Pty Ltd (Jingalong). Jingalong is the appellant in the proceedings in this Court against Mr Todd and Mr Pernice. The applicant for relief is Gregory George Todd, the first respondent in the appeal.

  1. The appeal is in respect of a dispute concerning a property described as "Lot 1" Gannet's Road, Nowra. On 10 April 2014 Kunc J made orders giving effect to his finding that Jingalong held Lot 1 on constructive trust for Mr Todd: Todd v Jingalong Pty Ltd [No 2] [2014] NSWSC 440. An order was also made that Jingalong pay Mr Todd's costs of the proceedings (other than in respect of the first cross-claim by Jingalong).

  1. Subsequently on 19 September 2014, McColl JA made orders staying the orders made by Kunc J pending the hearing and determination of the appeal: Jingalong Pty Ltd v Todd [2014] NSWCA 330.

  1. The present application relates to a different property owned by Jingalong, described as "Lot 5" in deposited plan 1181699. Mr Todd lodged a caveat against Lot 5 supported by a statutory declaration sworn on 31 July 2014 claiming an estate or interest in that land based on the costs order made in his favour against Jingalong in the Court below. Those costs have not been assessed, but have…

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Details
Case
[2014] NSWCA 347
Decision Date

CaseChat Overview and Summary

Jingalong Pty Ltd applied to Gleeson JA of the Supreme Court of New South Wales for an urgent ex parte Mareva order. The application sought to restrain the respondent, Mr Todd, from dealing with the proceeds of a property sale pending the hearing and outcome of an appeal. The primary dispute concerned an unpaid costs order from a previous judgment.

The central legal issue before the Court was whether to grant an interim freezing order, pending the return of the motion, to prevent the dissipation of the net proceeds of the property sale. This required the Court to consider the likelihood of the respondent dissipating these funds and the applicant's prospects of success on appeal.

Gleeson JA considered the principles governing Mareva orders, particularly in the context of an appeal and an outstanding costs order. The Court noted that a Mareva order is a discretionary remedy and requires the applicant to demonstrate a strong prima facie case and a real risk of dissipation of assets. The Court also considered the applicant's obligation to provide full and frank disclosure on an ex parte application.

The Court made orders for an interim freezing order to be in place until the return date of the motion, with specific directions regarding service and the respondent's ability to seek a variation or setting aside of the order. The final orders are detailed in paragraph [16] and the Schedule of the judgment.

Orders

Orders of the court

See paragraph [16] and Schedule

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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