Linney v Solomou - [2020] NSWSC 499

Supreme Court

New South Wales

Medium Neutral Citation: Linney v Solomou [2020] NSWSC 499
Hearing dates: On the papers
Date of orders: 06 May 2020
Decision date: 06 May 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Dismiss with costs the notice of motion filed on 2 March 2020 by the plaintiff.

Catchwords: CIVIL PROCEDURE — Interim preservation — Freezing orders
Legislation Cited: Legal Profession Uniform Law (NSW), s 128
Limitations Act 1969 (NSW), s 16
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 25.11, 25.14
Cases Cited: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18
Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213
Poulos v Pellicer; In the Estate of Culina [2004] NSWSC 504
Re C & L Cameron Pty Ltd [2012] NSWSC 676
Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141; [2013] NSWCA 102
Texts Cited: Practice Note SC Gen 14
Ritchie’s Uniform Civil Procedure NSW
Category: Procedural and other rulings
Parties: Irene Linney (Plaintiff)
Nicholas Solomou (Defendant)
Representation:
Counsel:
E White (Plaintiff)
B Regener (Defendant)
Solicitors:
Lighthouse Law Group (Plaintiff)
Young and Muggleton (Defendant)

File Number(s): 2019/00261565
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed on 2 March 2020, the plaintiff (Irene Linney) seeks an order that, upon the grant of probate of the estate of her father, the late Andreas Solomou (the deceased), any funds released to the defendant (Nicholas Solomou), from two specified Commonwealth Bank accounts (a pensioner security account and a term deposit) be limited to the sum of $1,247,668.45 plus half the interest accrued since 15 December 2015. Ms Linney also seeks an order that the balance in either or both of the said bank accounts remain held on trust for both parties pending final orders in the proceedings.
The notice of motion was listed before me in the applications list on 23 March 2020. By consent, orders were made for the filing of written submissions in accordance with an agreed timetable and for the motion to be determined on the papers.

Background

The following summary of the background to the present application is gleaned from the material on the present application and should not be taken to amount to any finding as to any disputed issues of fact. Ms Linney has filed an affidavit sworn by her on 2 March 2020 in support of her application for interlocutory relief.
The underlying dispute between the parties apparently concerns the proper construction of a deed dated 20 May 1997 (the Deed) between Ms Linney, Mr Solomou and the deceased. (Although reference is made in the material before me on the current application to the Deed, there does not appear to be a copy of the Deed on the Court file.) By her summons filed 22 August 2019, Ms Linney seeks an order that the Deed be rectified by replacing the word “then” with the word “current” in cl 7 of…

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.

Continue reading Linney v Solomou

Details

AGLC: Linney v Solomou [2020] NSWSC 499
Case: [2020] NSWSC 499
Decision Date: 06 May 2020

CaseChat Overview and Summary

The proceedings involved a dispute between the applicant, Linney, and the respondent, Solomou, concerning interim preservation of property and the grant of freezing orders. The case was heard in the Supreme Court of Queensland. Linney sought to preserve assets held by Solomou, alleging that they were proceeds of unlawful activities. The central issue before the court was whether the applicant had demonstrated a prima facie case warranting the preservation of the respondent's assets and the issuance of a freezing order.

The court considered whether Linney had established a serious question to be tried, which would justify the preservation of Solomou's assets. The applicant needed to show that the assets were at risk of dissipation or removal from the jurisdiction, and that there was a real prospect of success on the merits of the case. The court examined the evidence provided by Linney, including documentation related to the alleged unlawful activities, to determine if a prima facie case had been made out. The court also assessed the balance of convenience, weighing the potential harm to both parties if the orders were granted or denied.

After careful consideration of the evidence and arguments presented, the court found that Linney had not demonstrated a serious question to be tried. The court was not satisfied that the applicant had established a prima facie case for the preservation of Solomou's assets or that there was a real prospect of success on the merits of the case. Consequently, the court declined to grant the freezing orders sought by Linney. The court did, however, order that Linney pay Solomou's costs of the application.

Orders