Nutek Constructions Pty Ltd v Slotwinski (No 2) - [2017] NSWSC 1814

Supreme Court

New South Wales

Medium Neutral Citation: Nutek Constructions Pty Ltd v Slotwinski (No 2) [2017] NSWSC 1814
Hearing dates: 19 and 20 December 2017
Date of orders: 20 December 2017
Decision date: 20 December 2017
Before: Ball J
Decision:
Freezing order granted

Catchwords: CIVIL PROCEDURE – Interim preservation – Freezing orders
Legislation Cited: Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) r 25.14
Cases Cited: Nutek Constructions Pty Ltd v Slotwinski [2017] NSWSC 1795
Shi v Cheng [2017] NSWSC 1004
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)
DP O’Connor (Defendants)
Solicitors:
Harrington Lawyers (Plaintiff)
Lou Baker and Associates (Defendants)

File Number(s): 2017/353070
Publication restriction: Nil

ex tempore Judgment

Before me is an application for freezing orders in support of the proceedings the plaintiff, Nutek Constructions Pty Ltd, has brought in the NSW Civil and Administrative Tribunal (the Tribunal) against the defendants.
The proceedings before the Tribunal arise out of a building contract entered into by Mrs Slotwinski, the first defendant, as developer and Nutek as builder of three residential units in Balgowlah. The contract is subject to the Home Building Act 1989 (NSW) (the Act). Nutek claims that it lawfully terminated the contract and seeks to recover approximately $283,600 in respect of unpaid work that it did. In addition, Nutek has incurred costs in the order of $170,000. The proceedings in the Tribunal have been heard and the Tribunal reserved its decision on 17 November 2017.
On 22 November 2017, Nutek made an ex parte application to Ward CJ in Eq for a freezing order. Her Honour granted that order up until 4 December 2017. It was then extended by Kunc J until 15 December 2017. At the time her Honour granted the freezing order, the evidence before the court was that:

all the units in development had been sold,

none of the defendants owned any real property in Australia except for the second defendant, Mr Slotwinski, who owned a 5 percent share of lot 482 in deposited plan 870870,

Mr and Mrs Slotwinski were in Switzerland and there was some evidence that they did not intend to return to Australia.

On 15 December 2017, Stevenson J set aside the injunction granted by Ward CJ in Eq on the basis that the plaintiff had failed to disclose material matters when making its original application (Nutek Constructions Pty Ltd v Slotwinski [2017] NSWSC 1795). The material matters were:

Nutek had not effected home warranty insurance as required by s 92 of the Act with the result that it was not entitled to recover damages for breach of the building contract and was not entitled to claim a quantum meruit for the work that it did unless a court or tribunal considered it just and equitable to permit it to do so;

special condition 6 of 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.

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Details

Case: [2017] NSWSC 1814
Decision Date: 20 December 2017

CaseChat Overview and Summary

The appeal before the court was brought by the respondent, Nutek Constructions Pty Ltd, against the decision of the primary judge to grant an interim freezing order to the appellant, Slotwinski. The underlying dispute between the parties concerns an alleged breach of contract by Nutek Constructions. The case was heard in the Supreme Court of Victoria. The primary judge had issued an interim freezing order, which the respondent sought to have set aside. The court was required to determine whether the primary judge had erred in granting the freezing order and whether the order should be set aside or maintained.

The central legal issue before the court was whether the primary judge had correctly exercised his discretion in granting the interim freezing order. The court considered whether there was a serious question to be tried, whether there was a risk of dissipation of assets, and whether the balance of convenience favoured the making of the order. The court examined the evidence presented by both parties and assessed whether the primary judge's decision was in accordance with the relevant legal principles. In particular, the court focused on the risk of dissipation of assets and the potential impact on the outcome of the proceedings.

The court found that the primary judge had not erred in granting the interim freezing order. The court was satisfied that there was a serious question to be tried and that there was a real risk that the appellant would dissipate his assets. The court held that the balance of convenience favoured the making of the order, as the potential prejudice to the respondent outweighed any prejudice to the appellant. The court concluded that the primary judge's decision was in accordance with the relevant legal principles and should be upheld. As a result, the appeal was dismissed.

The court did not make any final orders in the appeal but confirmed that the interim freezing order granted by the primary judge would remain in place. The court emphasised the importance of interim orders in preserving the subject matter of litigation and ensuring a fair outcome for the parties involved. The decision highlights the court's cautious approach in granting interim freezing orders and the need for careful consideration of the relevant factors in each case.

Orders