Lamont v Malishus Limited (NZ) - [2023] FedCFamC2G 462

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lamont v Malishus Limited (NZ) [2023] FedCFamC2G 462

File number(s): SYG 787 of 2020

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 1 June 2023

Catchwords: INTELLECTUAL PROPERTY – Practice and procedure – ex parte application for freezing orders and other orders – application dismissed.

Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 20.02(1), 20.02(2)

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

Lamont v Malishus Limited (NZ) & Ors (No 2) [2020] FCCA 1227

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

Witham v Holloway (1995) 183 CLR 525

Division: General

Number of paragraphs: 13

Date of hearing: 30 May 2023

Place: Sydney

The Applicant: Appeared in person, by telephone

The Respondents: No appearance by, or on behalf of, the respondents
ORDERS

SYG 787 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DARREN LAMONT

Applicant

AND:
MALISHUS LIMITED (NZ) NZCN: 4429858

First Respondent

ROBERT JURCIC

Second Respondent

CLINTON SELWYN (and another named in the Schedule)

Third Respondent

order made by:

JUDGE MANOUSARIDIS

DATE OF ORDER:

1 JUNE 2023

THE COURT ORDERS THAT:
1.The application in a proceeding filed by the applicant on 24 May 2023 is dismissed.
2.By 5:00 pm on 2 June 2023 the applicant serve on the respondents the application in a proceeding the applicant filed on 24 May 2023, the affidavit the applicant filed on 24 May 2023, the written submissions on which the applicant relied at the ex parte hearing on 30 May 2023 headed “Applicants [sic] Brief Explanatory Notes”, and exhibit “A”, being a copy of the letter dated 26 May 2023 from the Australian Taxation Office to the applicant, on which the applicant relied at the ex parte hearing.
3.The transcript of the ex parte hearing held on 30 May 2023 be sent to the parties.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

On 23 May 2023 the Court’s Registry informed my Associate that the applicant, Mr Lamont, lodged for filing an application in a proceeding for freezing and other orders against the respondents, and that Mr Lamont wanted to make the application ex parte. In response to that request, and after the Registry had confirmed that Mr Lamont had lodged an affidavit in support of his application, I authorised my Associate to inform the Registry that it could accept for filing Mr Lamont’s application in a proceeding and also his affidavit in support, and that the matter be listed…

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: [2023] FedCFamC2G 462
Decision Date

CaseChat Overview and Summary

Lamont v Malishus Limited (NZ) is a case in which the applicant, Mr Lamont, sought ex parte orders for freezing the respondents' assets, an interlocutory injunction, and other relief against Malishus Limited (NZ), Robert Jurcic, Clinton Selwyn, and Chris Hau. The Federal Circuit and Family Court of Australia (Division 2) heard the application on 30 May 2023, and the Court issued its reasons for judgment on 1 June 2023. The primary legal issue the Court had to decide was whether the applicant had established a good arguable case for the grant of a freezing order and other relief sought.

In delivering the judgment, Judge Manousaridis noted that the applicant's affidavit did not provide sufficient evidence to support the grant of a freezing order or other relief sought. The Court found that Mr Lamont's affidavit contained conclusory statements and was incapable of proving the necessary criteria for a freezing order, such as the risk of the respondents removing their assets or the existence of assets to be frozen. Additionally, the Court found that the material provided was not sufficient to establish contempt of court or any other relief sought. Consequently, the Court dismissed Mr Lamont's application.

In conclusion, the Federal Circuit and Family Court of Australia (Division 2) dismissed Mr Lamont's application for ex parte freezing and other orders against Malishus Limited (NZ), Robert Jurcic, Clinton Selwyn, and Chris Hau. The Court found that the applicant's affidavit did not provide sufficient evidence to support the grant of a freezing order or other relief sought. The Court ordered that Mr Lamont serve the application, affidavit, and other documents on the respondents by a specified date, and the transcript of the ex parte hearing be sent to the parties.

Orders