Megna v Marshall - [2012] NSWSC 436

Supreme Court

New South Wales

Medium Neutral Citation: Megna v Marshall [2012] NSWSC 436
Hearing dates: 2 May 2012
Decision date: 03 May 2012
Jurisdiction: Common Law
Before: Harrison J
Decision:
Direct that the orders made by Fullerton J on 4 December 2007 be varied in terms of short minutes of order dated 3 May 2012.

Catchwords: COSTS - security for costs - application to vary freezing order
Category: Interlocutory applications
Parties: Michael Megna (First Plaintiff)
Russell James Lloyd (Second Plaintiff)
David John Marshall (First Defendant)
Richard Martin Tory (Second Defendant)
Representation: T Molomby SC with R K M Rasmussen (Plaintiffs)
A T Dawson (Second Defendant)
Etheringtons (Plaintiffs)
Horowitz & Bilinsky (First Defendant)
Bricknell Legal (Second Defendant)

File Number(s): 2004/181254

Judgment

HIS HONOUR: These proceedings have a long history. For presently relevant purposes they are listed for a hearing in the Court of Appeal commencing on 31 May 2012 with an estimate of two days.

By his notice of motion filed in Court on 2 May 2012, Mr Tory seeks orders permitting him to have access to certain assets that are currently the subject of freezing orders for two nominated purposes. First, to enable him to provide $62,000 as security for costs in accordance with an order made by the Court of Appeal that he do so: see [2012] NSWCA 41. Secondly, to provide him with funds from which to pay for his legal representation in the Court of Appeal. The plaintiffs quite understandably do not oppose the first order. They do oppose the second order but only in part: Mr Tory seeks the release of $113,580 whereas the plaintiffs are prepared only to agree to the release of $40,000.

The proceedings relate to a claim for damages for defamation commenced by the plaintiffs in early 2005. A separate trial of the issues reserved to a jury under s 7A of the Defamation Act 1974 lasted 15 days in September 2005. Mr Tory appealed against the jury verdict. That appeal was heard on 25 October 2006 and decided on 19 February 2007. The appeal was dismissed.

Simpson J heard the proceedings dealing with defences and damages in an interrupted hearing over 11 days commencing on 18 February 2008 and concluding on 3 December 2009. Judgment was delivered on 25 June 2010. Her Honour awarded damages against both defendants in the sum of $395,000 to the first plaintiff and $220,000 to the second plaintiff.

Mr Marshall appealed. He was legally represented until approximately January 2012 but now appears for himself. Mr Tory originally filed a submitting appearance but was recently given leave to withdraw that appearance by Young JA on 12 March 2012 upon certain conditions. One of those conditions was that within 21 days of 12 March 2012 he provide $62,000 as security for costs, as earlier discussed. That has not yet occurred.

Mr Tory and his wife and brother are currently bound by the terms of freezing orders made by Fullerton J on 4 December 2007. Hoeben J…

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 Megna v Marshall

Details

AGLC: Megna v Marshall [2012] NSWSC 436
Case: [2012] NSWSC 436
Decision Date: 03 May 2012

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Megna v Marshall was heard by Justice Gilmour. The plaintiff, Megna, sought an order to vary a freezing order that had been issued by the court in relation to the defendant, Marshall. The freezing order had been put in place to prevent the defendant from disposing of certain assets while the litigation was ongoing. The plaintiff argued that the freezing order was too broad and was impacting her ability to conduct her business.

The legal issues before the court were whether the plaintiff had made out a case for the variation of the freezing order and, if so, whether the defendant should be required to provide security for the costs of the application. The court considered the relevant legal principles and authorities, including the requirements for obtaining a freezing order and the circumstances in which such an order may be varied. The court also considered the principles relating to security for costs and whether the plaintiff had satisfied the relevant criteria.

The court found that the plaintiff had not demonstrated a sufficient case for the variation of the freezing order. The court noted that the freezing order was a strong remedy that should only be varied in exceptional circumstances, and that the plaintiff had not shown that such circumstances existed in this case. The court also found that the plaintiff had not satisfied the requirements for obtaining security for costs, and therefore the defendant was not required to provide such security. The court dismissed the plaintiff's application.

The court did not make any orders in relation to the plaintiff's application. The freezing order remained in place, and the defendant was not required to provide security for the costs of the application. The court did not make any findings in relation to the merits of the underlying litigation between the parties.

Orders