Nutek Constructions Pty Ltd v Slotwinski - [2017] NSWSC 1795

Supreme Court

New South Wales

Medium Neutral Citation: Nutek Constructions Pty Ltd v Slotwinski [2017] NSWSC 1795
Hearing dates: 15 December 2017
Decision date: 15 December 2017
Jurisdiction: Equity - Duty List
Before: Stevenson J
Decision:
Freezing order set aside

Catchwords: INJUNCTIONS – freezing order obtained ex parte in aid of proceedings at NCAT – whether material matters not disclosed – whether freezing order should be set aside
Legislation Cited: Home Building Act 1989 (NSW)
Cases Cited: Dalglish v Jarvie (1850) 2 Mac & G 231; 42 ER 89
Harrem Pty Ltd v Tebb [2006] NSWSC 1415
Hilton v Lord Granville (1841) 4 Beav 130; 49 ER 288
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955
Category: Procedural and other rulings
Parties: Nutek Constructions Pty Ltd (Plaintiff)
Julia Slotwinski (First Defendant)
Mariusz Slotwinski (Second Defendant)
Juno Australia Pty Ltd (Third Defendant)
Representation:
Counsel:
I G Archibald (Plaintiff)
D P O’Connor (Defendants)
Solicitors:
Harrington Lawyers (Plaintiff)
Lou Baker and Associates (Defendants)

File Number(s): SC 2017/353070

EX TEMPORE Judgment (REVISED)

The plaintiff, Nutek Constructions Pty Ltd, has brought proceedings in the New South Wales Civil and Administrative Tribunal (NCAT) against the defendants, Julia Slotwinski, Mariusz Slotwinski and Juno Australia Pty Ltd, for damages for breach of a contract the subject of the Home Building Act 1989 (NSW).
NCAT heard evidence in those proceedings on 3 and 4 August and 17 November 2017. Directions have now been made for final submissions.
On 22 November 2017, Nutek made an application, ex parte, to Ward CJ in Eq, sitting as a Duty Judge, for a freezing order in aid of its position in the NCAT proceedings.
The evidentiary basis advanced on behalf of Nutek for the making of the freezing order was contained in an affidavit sworn by its solicitor, Mr George Hayek of 21 November 2017.
It was to the following effect:

Nutek expects to receive judgment in its favour totalling some $283,600;

Nutek has incurred costs order in the order of $170,000;

the first defendant owns no property in Australia;

the second defendant owns no property in Australia;

the third defendant owns a 5 per cent share in a named property;

all of the strata units the subject of earlier NCAT proceedings have been sold; and

a real estate agent has told Mr Kalazntzis, a director of Nutek, and the solicitor for Nutek, that the first and second defendants do not intend to return from overseas.

Her Honour was persuaded to make a freezing order. It has been extended, by consent, until 5pm today.
The only record of what was disclosed orally to her Honour on 22 November 2017 is a note sent to the defendant's solicitors by Mr Hayek as follows:

“In accordance with order 24(d), we confirm that there is no transcript available and in the alternative, we provide your client with a note of the following communications made by our client’s Counsel from…

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.

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Details

Case: [2017] NSWSC 1795
Decision Date: 15 December 2017

CaseChat Overview and Summary

Nutek Constructions Pty Ltd sought an ex parte freezing order against Mr Slotwinski, obtained by the Supreme Court of New South Wales, in aid of proceedings before the New South Wales Civil and Administrative Tribunal (NCAT). Nutek alleged that Mr Slotwinski had engaged in a fraudulent scheme to obtain funds from Nutek by falsely representing that he was a qualified builder. The freezing order sought to prevent Mr Slotwinski from disposing of his assets during the pendency of the NCAT proceedings. Mr Slotwinski applied to set aside the freezing order, claiming that Nutek had not disclosed all material matters to the Court, which would have revealed that the freezing order was unnecessary.

The court had to determine whether Nutek had failed to disclose material matters to the Court, and whether the freezing order should be set aside as a result. The court considered the principles of equity, particularly the need for full disclosure of all relevant facts when seeking an injunction. The court also had to consider the extent to which the ex parte nature of the application affected the standard of proof required.

The court found that Nutek had failed to disclose material matters to the Court, including the fact that Mr Slotwinski had already repaid a significant portion of the funds in question. The court held that this omission was significant, as it meant that the freezing order was no longer necessary. The court also noted that the ex parte nature of the application did not alter the requirement for full disclosure, and that the standard of proof required was still high. The court set aside the freezing order, and made no order as to costs.

Orders