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Moustapha v Nelson (No 3)

Moustapha v Nelson (No 3)

Case [2020] NSWSC 1263 18 September 2020

Discovery & Disclosure

Freezing Orders

Costs

Civil Litigation & Procedure

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Moustapha v Nelson (No 3) [2020] NSWSC 1263
Hearing dates: 18 and 19 August 2020; further written evidence and submissions ending 26 August 2020
Date of orders: 18 September 2020
Decision date: 18 September 2020
Jurisdiction: Equity - Duty List
Before: Parker J
Decision:
See [101]-[103]

Catchwords:
CIVIL PROCEDURE – subpoenas – to produce documents or things – application for freezing order – bank records concerning proceeds of sale of defendant’s real estate – fishing expedition
CIVIL PROCEDURE – interim preservation – freezing orders – defendant sells real estate during prolonged litigation – defendant a natural person resident in Australia – insufficient risk of dissipation – costs – whether separate from general costs of proceedings – second unsuccessful application – order for payment of fixed sum on account

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)
Evidence Act 1995 (NSW), s 75
Home Building Act 1989 (NSW), ss 10, 92
Uniform Civil Procedure Rules 2005 (NSW), rr 25.3, 25.11

Cases Cited:
Baumgartner v Baumgartner (1987) 164 CLR 137
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1
Hancock v Rinehart (Lump sum costs) [2015] NSWSC 1640
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Portal Software International Ltd v Bodsworth [2005] NSWSC 1115
Sturesteps v Khoury [2019] NSWSC 943
Suzhou Haishun Investment Management Co Ltd v Yue’e Zhao (Ruling No 2) [2018] VSC 144

Texts Cited:
Biscoe, P, Freezing and Search Orders: Mareva and Anton Piller Orders (LexisNexis Butterworths, 2nd ed, 2008)

Category: Procedural and other rulings
Parties: Fouad Ahmad Moustapha (First Plaintiff/ First Cross-Defendant)
Overlook Tiles Pty Ltd (Second Plaintiff/Second Cross-Defendant)
Katie Nelson (Defendant/Cross-Claimant)
Representation:
Counsel:
N Obrart (Plaintiffs/Cross-Defendants)
S Sykes (Defendant/Cross-Claimant)
Solicitors:
Harper James Law Group (Plaintiffs/Cross-Defendants)
David Legal (Defendant/Cross-Claimant)

File Number(s): 2017/67704
Publication restriction: Nil

Judgment

This judgment concerns two interlocutory motions which I heard on 18 and 19 August. The main application was one by the plaintiffs for a freezing order against the defendant. The other applications concerned evidence for the purpose of the freezing order application. I will refer to these other applications as the “evidence applications”.
Following the hearing on 19 August I dismissed the freezing order application. At earlier points I had disposed of the evidence applications. I decided that the plaintiffs should pay the costs of the motions. I also decided to order that the plaintiffs pay a sum of money to the defendant on account of their liability for costs. In accordance with directions I made, I later received supplementary affidavit evidence and written submissions from the parties on the quantum of the payment.
This judgment sets out my reasons for the orders I made disposing of the freezing order application and the evidence applications. It also sets out my reasons for the orders I will now make fixing the quantum of the payment to be made…

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 Moustapha v Nelson (No 3)

Details

AGLC: Moustapha v Nelson (No 3) [2020] NSWSC 1263
Case: [2020] NSWSC 1263
Decision Date: 18 September 2020

CaseChat Overview and Summary

In the case of Moustapha v Nelson, the plaintiff sought to obtain documents related to the proceeds from the sale of the defendant's real estate, which was sold during the course of a protracted litigation. The plaintiff made an application for a freezing order to preserve the bank records associated with the sale proceeds, which the court rejected. The plaintiff then sought a declaration that the order constituted an interim preservation order, arguing that the defendant had an insufficient risk of dissipating the assets in question. The defendant, a natural person residing in Australia, opposed the application on several grounds, including that the order would be a fishing expedition. The court considered the nature of the application, the evidence provided, and the relevant legal principles.

The court was required to determine whether the plaintiff's application for a freezing order constituted an interim preservation order and whether such an order should be granted in these circumstances. The court also considered whether the order for costs should be separate from the general costs of the proceedings and whether the defendant should be ordered to pay a fixed sum on account of the costs of the second unsuccessful application. In making its decision, the court examined the applicable legal principles and the evidence presented by both parties.

The court concluded that the plaintiff's application did not constitute an interim preservation order, as it was not made in accordance with the statutory requirements. The court found that the plaintiff's application was a fishing expedition, as it sought to obtain documents that were not relevant to the issues in the case. The court also found that there was an insufficient risk of dissipation of the assets in question, as the defendant was a natural person residing in Australia. Therefore, the court dismissed the plaintiff's application for a freezing order and ordered the plaintiff to pay a fixed sum on account of the defendant's costs of the second unsuccessful application. The court held that the order for costs should be separate from the general costs of the proceedings.

In light of the above, the court made an order that the plaintiff's application for a freezing order did not constitute an interim preservation order and was dismissed. The court also ordered the plaintiff to pay a fixed sum on account of the defendant's costs of the second unsuccessful application, which was to be separate from the general costs of the proceedings. The court did not make any further orders.

Orders