Karadimas v H & P Solopitias Pty Ltd - [2000] VSC 392

SUPREME COURT OF VICTORIA

Not Restricted

PRACTICE COURT

No. 6837 of 2000

GEORGE KARADIMAS	Plaintiff
v
H & P SOLOPITIAS PTY LTD	First Defendant
and
PANAGIOTA SOLOPITIAS	Second Defendant

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JUDGE:	Eames J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2000
DATE OF JUDGMENT:	20 September 2000
CASE MAY BE CITED AS:	Karadimas v H & P Solopitias Pty Ltd
MEDIUM NEUTRAL CITATION:	[2000] VSC 392

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Mareva injunction - Plaintiff alleges fraudulent misrepresentations by defendants inducing a sale of property - Proceeds of sale disbursed by second defendant to her children including her son - Son of second defendant alleged to be implicated in fraud - Second defendant denies knowledge or authority for son to act as alleged - Second defendant owns other property - Whether real risk that the other property will also be disposed, in order to avoid possible judgment - Onus of proof.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.J. Hayes	Tasiopoulos, Lambros & Co
For the First and Second Defendant	Mr I. Upjohn	Prapas & Co

HIS HONOUR:

This is an application for the extension of a Mareva injunction granted ex parte by Smith, J. on 15 September this year.

The plaintiff brings proceedings by writ against the first-named defendant, which is a company which had been the registered proprietor of property, being a shop premises known as Shop 166 Gladstone Park Shopping Centre, and more particularly described in the affidavit material. The second defendant is a 62 year old widow, who is the sole director of the first-named defendant and holder of 99 percent of the shares, and whose son, Jim, has one percent of the shareholding.

The plaintiff purchased the property as an investment for the sum of $195,000. Settlement was effected on 17 July 2000.

The plaintiff alleges that he was induced to purchase the property by representations made by or on behalf of the vendor by the estate agent for the vendor that the tenant was paying rental of $25,000 per annum, which would increase to $26,000 per annum.

In fact, the plaintiff alleges that by a written note dated 29 March 2000, Jim Solopitias, the son of the second defendant identifying himself as landlord, had advised the tenants that rent would be reduced to $1,500 per month, an annual rental of only $18,000. The plaintiff had not been advised of that event.

The claim is in its early stages and the question of damages is obviously difficult to estimate, even in the broadest and most optimistic way, but counsel for the plaintiff submitted that were those facts to be established and damages to be awarded, in very broad terms, one might expect an award of damages in the order of between $60,000-$70,000. Counsel for the defendants disputed that suggestion, suggesting that any award of damages would be very considerably lower and would be likely to be within the jurisdiction of the Magistrates' Court and submitted that, in any event, the defendant had failed to take steps to…

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: [2000] VSC 392
Decision Date: 20 September 2000

CaseChat Overview and Summary

In the matter of Karadimas v H & P Solopitias Pty Ltd, the plaintiff sought to prevent the defendants from disposing of assets, alleging fraudulent misrepresentations induced the sale of a property, with the proceeds disbursed by the second defendant to her children, including her son. The son was alleged to be involved in the fraud, although the second defendant denied knowledge or authority for him to act as claimed. The plaintiff sought a Mareva injunction to restrain the defendants from disposing of any assets. The court was tasked with determining whether there was a real risk that the other property owned by the second defendant would also be disposed of to avoid a possible judgment against her, and the burden of proof required for such an injunction.

The court considered the onus of proof required for the plaintiff to succeed in obtaining the injunction. The plaintiff needed to demonstrate a serious question to be tried and a real risk of asset dissipation. The court examined the nature of the allegations and the evidence provided. The plaintiff argued that the second defendant's knowledge and involvement in disbursing the sale proceeds to her son created a real risk of further asset dissipation. The second defendant contended that there was no evidence of her knowledge or authority for her son's actions and denied any intention to dissipate assets. The court weighed the evidence and the risk of dissipation in light of the onus of proof.

The court found that the plaintiff had established a serious question to be tried and demonstrated a real risk that the other property would be disposed of to avoid a possible judgment. The evidence of the second defendant’s involvement in disbursing the sale proceeds to her son, coupled with the nature of the allegations, indicated a sufficient risk of further asset dissipation. Consequently, the court granted the Mareva injunction, restraining the defendants from disposing of any assets. This decision was made to ensure that the plaintiff's potential judgment could be satisfied if successful in the underlying proceedings.

Orders