Jingalong Pty Ltd v Todd (No 2)

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…