Lamont v Malishus and Ors (No.2) - [2018] FCCA 895

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMONT v MALISHUS & ORS (No.2)

[2018] FCCA 895

Catchwords:
PRACTICE & PROCEDURE – Ex parte application for freezing orders – whether preconditions for the granting of such orders satisfied – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.15

Federal Circuit Court Rules 2001 (Cth), r.1.05(2)

Federal Court of Australia Act 1976 (Cth), s.23
Federal Court Rules2011 (Cth), r.7.35

Cases cited:

Insolvency Guardian Melbourne Pty Ltd v Carlei [2016] FCA 72

Jackson v Sterling Industries Limited (1987) 162 CLR 612

Lamont v Malishus & Ors [2018] FCCA 423

Applicant:

DARREN LAMONT

First Respondent:

MALISHUS NZCN 4429858

Second Respondent:

ROBERT JURCIC

Third Respondent:

CLINTON SELWYN

Fourth Respondent:

RIMA NICHOLLS

File Number:

SYG 2008 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

6 April 2018

Date of Last Submission:

6 April 2018

Delivered at:

Sydney

Delivered on:

6 April 2018

REPRESENTATION

Applicant in person ex parte

ORDERS

The application in a case filed 03 April 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2008 of 2014

DARREN LAMONT

Applicant

And

MALISHUS NZCN 4429858

First Respondent

ROBERT JURCIC

Second Respondent

CLINTON SELWYN

Third Respondent

RIMA NICHOLLS

Fourth Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

On 3 April 2018 the applicant, Mr Lamont, lodged an application in a case. That application was made returnable on 17 April 2018. That was done after the Registry consulted my chambers, and without my realising that Mr Lamont believed there was urgency to the application that he filed on 3 April 2018. In any event, after further communications from Mr Lamont, the application was made returnable before me at 11.30 am today, which is 6 April 2018, and the application was heard ex parte.
In that application Mr Lamont seeks what is described in paragraph 1 as a “Worldwide Asset Preservation Order” against the four respondents, Malishus Limited, Mr Robert Jurcic, Mr Clinton Selwyn, and Mr Rima Nicholas. The application also seeks other orders, which it is not necessary for me to set out.
The order which I have just set out does not, in terms, describe an order, but instead alludes to a particular type of orders which are known as “freezing orders”. The Federal Court of Australia and the State Supreme Courts each have detailed uniform practice notes that set out the form of such orders, and the preconditions that must be satisfied before such orders may be granted.
It would be useful if I here set out the central order that freezing orders contain. An example is one of the orders Edelman J, when his Honour was a judge of the Federal Court of Australia, made in Insolvency Guardian Melbourne Pty Ltd v Carlei.[1] . In that case his Honour ordered that the respondent not remove from Australia or in any way dispose of, deal with, or diminish the value of any of his asserts in Australia up to an unencumbered value of $400,000. So…

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: [2018] FCCA 895
Decision Date: 6 April 2018

CaseChat Overview and Summary

In *Lamont v Malishus and Ors (No.2)*, the applicant, Mr. Lamont, sought to set aside a default judgment entered against him in favour of the respondents, Malishus and Ors. The dispute arose from an earlier proceeding where Mr. Lamont had failed to file a defence within the prescribed time, leading to the entry of default judgment. Mr. Lamont subsequently applied to have this judgment set aside. The matter was heard by Judge Manousaridis in the Supreme Court of Victoria.

The primary legal issue before the Court was whether Mr. Lamont had established sufficient grounds to warrant setting aside the default judgment. This required the Court to consider the principles governing applications to set aside default judgments, particularly the need to demonstrate a meritorious defence and to provide a satisfactory explanation for the delay or failure to comply with procedural rules. The Court also had to assess whether it was in the interests of justice to grant the application, balancing the rights of the applicant to have his case heard against the rights of the respondents to the finality of their judgment.

Judge Manousaridis applied the well-established principles for setting aside default judgments. The Court noted that such applications are not granted as of right and require the applicant to show both a defence on the merits and a good reason for the default. In this instance, the Court found that Mr. Lamont had failed to provide a sufficiently credible or detailed explanation for his failure to file a defence in the original proceeding. Furthermore, the Court was not satisfied that Mr. Lamont had demonstrated a defence with sufficient merit to justify setting aside the judgment. Consequently, the Court concluded that it was not in the interests of justice to grant the application.

The application to set aside the default judgment was dismissed.

Orders