Lien Hoa Women Buddhist Meditation Centre Incorporated v KL Aussie Pty Ltd

[2024] NSWSC 1563

Supreme Court

New South Wales

Medium Neutral Citation:

Lien Hoa Women Buddhist Meditation Centre Incorporated v KL Aussie Pty Ltd [2024] NSWSC 1563

Hearing dates:

04 December 2024

Date of orders:

04 December 2024

Decision date:

04 December 2024

Jurisdiction:

Common Law

Before:

Price AJ

Decision:

1. The notice of motion is dismissed.

2. The plaintiff should pay the defendants’ cost of the notice of motion.

Catchwords:

CIVIL PROCEDURE – notice of motion – order sought to restrain the defendants from accessing proceeds of sale

Cases Cited:

Finn v Carelli [2007] NSWSC 261

Category:

Principal judgment

Parties:

Lien Hoa Buddhist Meditation Centre Incorporated (Plaintiff)
KL Aussie Pty Ltd (First Defendant)
Huynh Luan Lam (Second Defendant)
Thi Ngoc Lieu Pham (Third Defendant)

Representation:

Counsel:
E Cohen (Plaintiff)
N Mirzai (First, Second and Third Defendants)

Solicitors:
Westlink Legal (Plaintiff)
MillerPrince (First, Second and Third Defendants)

File Number(s):

2024/45388

EX TEMPORE JUDGMENT

1. A short time ago I granted the defendants’ application to vacate the undefended hearing and have set down the proceedings between the parties as a defended hearing on 17 February 2025.

2. The plaintiffs now seek the following orders:

“1. That the defendants within 24 hours of the making of these orders, provide to the plaintiff's solicitor all documents relating to the receipt of the proceeds of the sale of 424 Paragon Lane Belmore NSW Folio Identifier 2/546212 also known as 424 Burwood Road Belmore NSW Folio Identifier 2/546212 together with all documents disclosing the current whereabouts of the proceeds of the sale of 424 Paragon Lane Belmore NSW Folio Identifier 2/546212 also known as 424 Burwood Road Belmore NSW Folio Identifier 2/546212

2. That upon the plaintiffs giving an undertaking as to damages until further order of the Court, the defendants be restrained from disposing of the proceeds of sale of 424 Paragon Lane Belmore NSW Folio Identifier 2/546212 also known as 424 Burwood Road Belmore NSW Folio Identifier 2/546212

3. That the second defendant be restrained from selling, transferring or further encumbering property known as 426 Archerfield Road, Inala Queensland.

4. That the third defendant be restrained from selling, transferring or further encumbering property known at 9 Cedar Avenue, Mildura VIC Folio Identifier 6418/408

5. Such further or other order as this honourable Court sees fit.

6. Costs."

3. It is submitted by Ms Cohen, on behalf of the plaintiff, that what is being sought is not a freezing order or an order in the nature of a Mareva order. Ms Cohen submits that the plaintiff is seeking to restrain, until the hearing, the defendants from taking any money overseas so that they would not be in a position to satisfy any judgment.

4. Mr Mirzai who appears for the defendants opposes the making of the orders sought.

5. The plaintiff relies on the affidavit of Ying Zhang, solicitor for the plaintiff, who expresses the following concern at paragraph 12:

“I am concerned that the defendants are selling their real estate in Australia, and that in event there is a judgment in the plaintiff's favour the plaintiff will be unable to have the judgment satisfied."

6. It is put by Ms Cohen that the defendants did not appear at the various hearings before the Registrar. In effect, the submission is that the defendants disappeared for a period of time. They have recently emerged after the sale of the property referred to in Ms Pham's affidavit, who states that the defendants’ equity from the sale of that property is about $300,000. Ms Cohen submits that the defendants are now selling other properties.

7. On behalf of the defendants, Mr Mirzai points out that these proceedings have been on foot for some time, and if the defendants had intended to remove the proceeds from sales overseas they would have done so well before today. He argues that what the defendants have done after receiving $300,000 from the sale of the property, is to engage their solicitors and counsel. They are now ready to put on affidavit evidence in answer to the plaintiff's claim. Mr Mirzai submits there is no evidence to justify the orders sought.

8. Mr Mirzai has handed up to me a judgment of Brereton J (as he then was) of Finn v Carelli [2007] NSWSC 261 (“Carelli”). Whilst the application made is not in the strict sense for a freezing order, it is my view that the principles expressed in Carelli apply to the present application.

9. As Brereton J said at [2]:

“On an application for freezing order, which now seems to be fashionable for an asset preservation order or a Mareva order, as a general rule the applicant has to establish first, a prima facie cause of action against the respondent, and secondly, a danger that by reason of the respondent or of assets being removed from the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion the applicant is ultimately successful, will not be able to have a judgment in its favour satisfied. Ordinarily, there must be evidence of at least a more than usual danger of assets being removed or dissipated.”

10. Further on, at [4]:

“It is not necessary for an applicant to show that the respondent has a positive intention of evading a judgment, and it is sufficient to show that the course on which the respondent proposes to embark is, objectively speaking, calculated to have that effect. But as the Court of Appeal made clear in Frigo v Culhaci, an applicant must establish by evidence, and not the mere assertion, that there is a real danger that by reason of the respondent absconding or otherwise dealing with the assets, the applicant will not be able to have its judgment satisfied.”

11. Further, at [5]:

“It is important to bear in mind that the jurisdiction to make orders of this type was never intended simply to enable a plaintiff or judgment to obtain security for its judgment advanced of execution, but was firmly found that on the jurisdiction of the Court to prevent abuses of its process by preventing a defendant or judgment debtor from embarking on a course of conduct which would have the effect of defeating the Court's jurisdiction.”

12. The plaintiff has established a prima facie cause of action.

13. On the material before me, the plaintiff has not established by evidence, but merely has asserted a concern, that there is a real danger the defendants will deal with their assets in a way that the plaintiff will not be able to have its judgment satisfied.

14. There was reference made by Ms Cohen to the affidavit of Ms Pham, to her statement that the defendants’ equity amounted to $300,000 and to a title search showing that the mortgage on the Mildura property had not been discharged. Quite frankly, on the material before me, I am unable to ascertain whether Ms Pham’s statement is correct. Unfortunately, none of the parties have been available for cross-examination.

15. Accordingly, I am not satisfied that it is appropriate for the Court to make the orders sought. Costs should follow the event.

Orders

16. The notice of motion is dismissed.

17. The plaintiff should pay the defendants’ cost of the notice of motion.

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Decision last updated: 04 December 2024