NESCI-LAWRENCE as Executor of the Estate v Ginbey

Lucetta Francina Neschi-Lawrence and Vincenzo Sorgiovanni, as executors of the estate of Assunta Maria Neschi, filed an urgent application for a freezing order against Howard John Ginbey, the former executor of the estate, alleging improper handling of estate funds and seeking to prevent the dissipation of assets. The application was heard ex parte as Ginbey did not appear or defend the proceedings. The plaintiffs argued that Ginbey had breached his fiduciary duties by transferring estate funds to his personal account and failed to account for these transfers. The evidence indicated substantial withdrawals from the estate's bank account, raising concerns about the imminent disposition of significant assets.

The court assessed whether the plaintiffs had a good arguable case against Ginbey and whether there was a danger that a prospective judgment might be unsatisfied due to asset dissipation. The court found that the plaintiffs had demonstrated a strong case of breach of fiduciary duty and potential asset misappropriation by Ginbey. The significant reduction in the estate's bank balance and Ginbey's ownership of multiple properties, some of which were likely to be sold, supported the risk of asset dissipation. Given the allegations of serious dishonesty, the court was satisfied that there was a sufficient risk that a prospective judgment could be unsatisfied.

In exercising its discretion, the court considered the urgency of the application, the lack of any apparent delay or lack of candour by the plaintiffs, and the protection afforded by the undertaking as to damages. The court granted the freezing orders, limiting the covered assets to the likely maximum value of the plaintiffs' claim, excluding ordinary living expenses and reasonable legal costs. The freezing order was set at $1,279,398.40, including the amounts transferred from the estate and the deceased's account before the estate account was opened, along with estimated legal costs.

The court also noted that ancillary disclosure orders would be considered on the return date, allowing for a fuller examination of the issues once Ginbey had the opportunity to be heard. The freezing orders were to be returnable before the court on a specified date, with liberty for Ginbey to apply for relief on short notice.