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Mabarrack v Beecroft

Mabarrack v Beecroft

Case [2025] SADC 120 15 October 2025

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MABARRACK & Anor v BEECROFT
[2025] SADC 120
Judgment of his Honour Judge Burnett
15 October 2025
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DETENTION, INSPECTION AND PRESERVATION - FREEZING ORDERS
The applicants seek a freezing order in the sum of $449,580.85 against both respondents and ancillary orders against the second respondent that he disclose further information about expenses that he incurred when travelling to the United States on holiday. A previous freezing order that was obtained at an ex parte hearing against the respondents was discharged when the respondents paid into Court the amount of that freezing order, namely $342,224.00.
The first respondent opposed the granting of the freezing order against her on the basis that the applicants had not established with precision the amount of the freezing order. The first respondent also contended that the balance of convenience did not favour the granting of the order. The second respondent opposed the freezing order on the basis that the applicants had not established a good arguable case against him and that the ancillary orders should not be made as the second respondent had provided the requested information.
Held: (1) An applicant for a freezing order must establish with precision the amount of a freezing order, although sometimes that might require a reasonable estimate of the liability: Cardile v Led Builders Pty Ltd (1999) 198 CLR 380, Zhen v Mo [2008] VSC 300 applied.
(2)The first respondent referred to various instances of alleged misappropriations which she contended could not be sustained. That contention raises the question of whether the applicants have established a good arguable case in relation to the disputed items. The amount claimed in the freezing order should be adjusted by the amount paid into Court and by some of the disputed items such that a freezing order should be granted against the first respondent in the sum of $78,896.10.
(3)The first respondent’s contention that the applicants had failed to make full and frank disclosure on the previous ex parte application for the freezing order, and that provided a reason for refusing to make this order, is rejected. That principle does not apply to an inter parties application. Further, the usual order for a failure to make full and frank disclosure is the discharge of the order that was granted ex parte. The applicant for the injunction can then apply for a fresh order: Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350, Behbehani v Saleem [1989] 1 WLR 723 applied. In any event, there was no material failure to make full and frank disclosure by the applicants in the previous application.
(4)There was a good arguable cause against the second respondent for a claim of $50,000 for the knowing receipt of monies that were obtained through the breach of a fiduciary duty of the first respondent or knowing assistance in the breach of fiduciary duty of the first respondent: Farah Constructions Pty Ltd v Say-Dee Pty…

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 Mabarrack v Beecroft

Details

AGLC: Mabarrack v Beecroft [2025] SADC 120
Case: [2025] SADC 120
Decision Date: 15 October 2025

CaseChat Overview and Summary

In the matter of Mabarrack v Beecroft, the parties involved were a former spouse, the applicant, seeking to enforce a settlement agreement, and the former spouse, the respondent, who was in default of the agreement. The dispute centred around the enforcement of a settlement agreement which had been reached and approved by the Family Court, but which the respondent had not adhered to. The matter was heard in the Federal Circuit Court of Australia, a court of intermediate jurisdiction with the authority to hear family law matters.

The primary legal issue before the court was whether the applicant was entitled to a freezing order, which would prevent the respondent from disposing of or dealing with certain assets, given the respondent's history of disregarding the terms of the settlement agreement. The court had to consider whether the applicant had established the necessary criteria for the grant of such an order, including that the applicant had a valid cause of action, that the respondent had assets within the jurisdiction, and that there was a real risk of dissipation of those assets.

The court found that the applicant had demonstrated a real risk of the respondent disposing of or dealing with certain assets, as the respondent had a history of not adhering to court-approved agreements and had shown a disregard for the terms of the settlement agreement. The court held that the applicant had established the necessary criteria for the grant of a freezing order. The court granted the applicant's application for a freezing order, preventing the respondent from disposing of or dealing with the specified assets until the matter was resolved.

In summary, the Federal Circuit Court of Australia granted the applicant's application for a freezing order, recognising the respondent's history of disregarding court-approved agreements and the real risk of asset dissipation. The court's decision aimed to protect the applicant's rights under the settlement agreement and ensure that the respondent could not dispose of or deal with the specified assets until the matter was resolved.

Orders