Jingalong Pty Ltd v Todd (No 3)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Jingalong Pty Ltd v Todd (No 3) [2014] NSWCA 353

Hearing dates:

13 October 2014

Decision date:

13 October 2014

Before:

Macfarlan JA

Decision:

Orders made in terms of the document initialled by Macfarlan JA and placed with the papers.

[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:

PRACTICE AND PROCEDURE - application for freezing order pending resolution of appeal - no issue of principle

Category:

Interlocutory applications

Parties:

Gregory George Todd (Applicant)
Jingalong Pty Ltd (First Respondent)
Brett Pernice (Second Respondent)

Representation:

Counsel:
D Brezniak (Applicant)
C S Ward/S Kanagaratnam (First Respondent)
D Nagle (Second Respondent)
Solicitors:
Johnston Tobin (Applicant)
A L Wunderlich & Co (First Respondent)
Hancock Alldis & Roskov (Second Respondent)

File Number(s):

CA 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):

SC 2012/344643

Judgment

1. HIS HONOUR: This is an application by a respondent to an appeal, Mr Gregory Todd, against the appellant, Jingalong Pty Ltd, designed to have assets of the appellant preserved to enable it to meet a costs order made by Kunc J at first instance. The costs have not yet been the subject of a formal assessment.

1. The circumstances in which this application is made are identified in the judgment of Gleeson JA in Jingalong Pty Ltd v Todd (No 2) [2014] NSWCA 347 (see also that of McColl JA at [2014] NSWCA 330 and those of Kunc J at [2014] NSWSC 362 and [2014] NSWSC 440). A freezing order was made by Gleeson JA on 9 October 2014 on the ex parte application of Mr Todd. The order was operative only until today, at which time an inter-parties hearing has taken place.

1. The appellant complained that full disclosure appears not to have been made by Mr Todd to Gleeson JA. However I am not able to deal with that very serious complaint as a transcript of what occurred before his Honour is not yet available. In any event, it is unnecessary to do so on this application as the application heard today is, and has been treated as, a fresh application for a freezing order.

1. The evidence before me today indicates clearly that the appellant is in a difficult financial position and that the net proceeds (approximating $360,000) of the impending settlement of the sale to which Gleeson JA referred in his judgment are likely to be applied in discharge of existing debts, leaving few if any funds available to pay costs to which Mr Todd may be entitled (subject to…