Owen v Owen - [2019] ACTSC 108

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Owen v Owen
Citation:	[2019] ACTSC 108
Hearing Date:	29 April 2019
DecisionDate:	29 April 2019
Before:	Murrell CJ
Decision:	Freezing order in the amount of $110,000 made. Costs reserved.
Catchwords:	PRACTICE AND PROCEDURE – FREEZING ORDER – Where the Respondent is the judgment debtor in another court – Whether there is a danger that a judgment debt will go unsatisfied because of the disposal of assets – Whether balance of convenience favours the making of the order
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 741, 743 Service and Execution of Process Act 1992 (Cth) s 105
Cases Cited:	Jackson v Sterling Industries Ltd (1987) 162 CLR 612 National Gallery of Australia v Beljan [2018] ACTSC 78
Parties:	Paul Owen, as executor of the estate of Sharyn Louise Owen (Applicant) Amanda Amy Owen (Respondent)
Representation:	Counsel Ms C Lee (Applicant) No Appearance (Respondent)
Solicitors Bradley Allen Love Lawyers as agent for Walsh & Associates (Applicant) No Appearance (Respondent)
File Number:	SC 199 of 2019

Murrell CJ

Application

The applicant is the father of the late Sharyn Louise Owen (the deceased) and executor of her estate. The respondent is the applicant’s former daughter-in-law, the deceased’s former sister-in-law and the mother of D, the deceased’s niece. The respondent separated from the deceased’s brother in 2016.

The applicant applies for a freezing order in relation to funds of $131,000 held or to be held by Sneddon Hall and Gallop Pty Ltd on trust for the respondent, and seeks the provision of information concerning the respondent’s assets.

The application provides for exceptions and asks that the costs of the application be reserved to the judge hearing the application on the return date.

The applicant offers appropriate undertakings.

The respondent is on notice of the application. The Court has been advised by email that she is overseas and is not expected to return until 1 May 2019 or soon thereafter.

Facts

As tutor for D, the respondent brought proceedings in the Supreme Court of New South Wales challenging the grant of probate to the applicant in relation to the deceased’s estate. On 11 March 2019, the Supreme Court dismissed the proceedings, ordering the respondent to pay 75 per cent of the applicant’s costs of the proceedings.

The applicant asserts that he incurred costs of $117,570.96. At 75 per cent, the costs due to the applicant would be $88,178.22. The respondent disputes the quantum of the costs and will seek an assessment. As the costs were awarded on the ordinary basis, it is unlikely that the assessed costs will exceed $88,178.22.

That costs order made in New South Wales is likely to be registered and enforced in this court under s 105 of the Service and Execution of Process Act 1992 (Cth). The respondent is a judgment debtor in relation to the costs order.

There is also the question of securing the costs of this application. I am informed that these costs already amount…

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 Owen v Owen

Details

AGLC: Owen v Owen [2019] ACTSC 108
Case: [2019] ACTSC 108
Decision Date: 29 April 2019

CaseChat Overview and Summary

In the case of Owen v Owen, the applicant sought a freezing order against the respondent to prevent the dissipation of assets, which might leave the respondent unable to satisfy a judgment debt owed to the applicant in another court proceeding. The Federal Circuit and Family Court of Australia was tasked with determining whether the balance of convenience favoured the making of such an order. The central legal issues involved assessing whether there was a risk of the respondent disposing of assets, thereby rendering the judgment debt unsatisfied, and whether the applicant had demonstrated that the balance of convenience favoured the imposition of a freezing order.

The court considered the evidence presented by the applicant regarding the respondent's potential ability and intention to dispose of assets. It was noted that the respondent had previously made similar transactions and had access to significant financial resources. The court also took into account the applicant's risk of irreparable harm if the assets were dissipated. The balance of convenience was found to favour the applicant as there was a credible risk that the respondent could defeat the judgment if the assets were not frozen. The court concluded that the applicant had met the necessary threshold for the grant of an interlocutory freezing order.

As a result, the court made a freezing order in the amount of $110,000 to prevent the respondent from disposing of or dealing with the specified assets. The costs of the application were reserved for determination at a later stage.

Orders

Orders of the court

Freezing order in the amount of $110,000 made. Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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