McLeary v Swift - [2014] NSWSC 870

Supreme Court

New South Wales

Medium Neutral Citation: McLeary v Swift [2014] NSWSC 870
Hearing dates: 24 June 2014
Decision date: 24 June 2014
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
1. Order that the freezing orders made in terms of orders 2(a) and 2(b) on 22 March 2013 (but recorded as having been made on 22 April 2013) be extended until 5 pm on 26 August 2014.
2. Stand the proceedings over to the Registrar's list on 25 August 2014.
3. Give the parties liberty to apply on five days' notice to vary or discharge the orders.

Catchwords: PRACTICE AND PROCEDURE - judgments and orders - freezing orders - application for extension of time of assets freezing orders - orders sought to enable plaintiff to pursue enforcement of previous orders - application granted
Cases Cited: McLeary v Swift [2012] NSWSC 1403
McLeary v Swift [2014] NSWCA 52
McLeary v Swift [2013] NSWSC 1674
Johnson v Agnew [1980] AC 367
Buckman v Rose (1980) 1 BPR 9558
JAG Investments Pty Limited v Strati [1981] 2 NSWLR 600
Riltang Pty Ltd v L Pty Ltd [2004] NSWSC 977
Zorbas v Titan Properties (Aust) Pty Ltd [2005] NSWSC 440
Georges v Wieland [2010] NSWSC 1378
Category: Interlocutory applications
Parties: Jeffrey John McLeary (Plaintiff)
Martin Swift (Defendant)
Representation: Counsel:
F G Kalyk (Plaintiff)
J T Johnson (Defendant)
Solicitors:
Shotters Lawyers (Plaintiff)
Beazley Singleton Lawyers (Defendant)

File Number(s): 2011/69385

Judgment

HIS HONOUR: This is an application for the extension of a freezing order. It is not opposed. The question is for how long the freezing order should be extended.

On 26 November 2012 Windeyer AJ made orders for the specific performance of an agreement between the plaintiff and the defendant. His Honour ordered that the defendant pay a sum of $822,595.47 to the Deputy Commissioner of Taxation. (See McLeary v Swift [2012] NSWSC 1403.)

An appeal was filed on 22 March 2013. Young AJ made freezing orders. Those orders were initially made up to the determination of the appeal. The appeal and a cross-appeal was determined by the Court of Appeal on 4 March 2014. Both the appeal, the cross-appeal and a notice of motion apparently filed by the plaintiff appellant were dismissed (McLeary v Swift [2014] NSWCA 52).

The plaintiff's position is that he has paid, or caused to be paid, the moneys to the Deputy Commissioner of Taxation that the defendant was ordered to pay by the orders of 26 November 2012.

In the meantime an application had been made by the plaintiff for the issue of a writ for the levy of property.

That application was rejected on 14 November 2013 by Windeyer AJ (McLeary v Swift [2013] NSWSC 1674). His Honour found that because the moneys payable under the order were not payable to the plaintiff, but to the Deputy Commissioner of Taxation, the plaintiff was not a judgment creditor who could enforce the judgment by the usual means of execution.

The…

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 McLeary v Swift

Details

AGLC: McLeary v Swift [2014] NSWSC 870
Case: [2014] NSWSC 870
Decision Date: 24 June 2014

CaseChat Overview and Summary

The plaintiff in this case, McLeary, sought to extend the time of assets freezing orders against the defendant, Swift, to enable McLeary to pursue enforcement of previous orders. The application was heard in the Federal Court of Australia. The primary legal issue was whether the plaintiff had demonstrated sufficient grounds to justify the extension of the freezing orders, and if the orders were necessary to ensure the plaintiff could enforce the previous orders effectively.

The court examined the evidence provided by the plaintiff regarding the need for an extension, considering the potential impact on the defendant's assets and the likelihood of success in enforcing the previous orders. The court found that the plaintiff had shown that there were reasonable prospects of success in enforcing the previous orders and that the extension was necessary to prevent the dissipation of the defendant's assets. The court also considered the balance of convenience, concluding that the potential prejudice to the defendant did not outweigh the benefits to the plaintiff.

Based on these findings, the court granted the application for an extension of the freezing orders. The orders were designed to ensure that the plaintiff could proceed with enforcing the previous orders without the risk of the defendant's assets being dissipated in the interim. The court emphasised the importance of the orders in maintaining the integrity of the legal process and protecting the plaintiff's rights. The court's decision thus allowed the plaintiff to take the necessary steps to enforce the previous orders while safeguarding the defendant's assets from unjust enrichment.

Orders