PHOENIX EAGLE COMPANY PTY LTD -v- ARDREY [2016] WASC 175

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 175
Case No:	CIV:3072/2011	Heard:	ON THE PAPERS
Coram:	KENNETH MARTIN J	Delivered:	13/06/16
No of pages:	6	Judgment Part:	1 of 1
Result:	Variation application refused with costs
Category:	B
PDF Version

Parties:	PHOENIX EAGLE COMPANY PTY LTD WILLIAM JAMES ARDREY
Catchwords:	Freezing orders Variation requested Funds in court the subject of trust obligations Application misconceived
Legislation:	Nil
Case References:	Commonwealth of Australia v Albany Port Authority [2006] WASCA 185

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PHOENIX EAGLE COMPANY PTY LTD -v- ARDREY [2016] WASC 175 CORAM : KENNETH MARTIN J HEARD : ON THE PAPERS DELIVERED : 13 JUNE 2016 FILE NO/S : CIV 3072 of 2011 BETWEEN : PHOENIX EAGLE COMPANY PTY LTD

Plaintiff

AND

WILLIAM JAMES ARDREY

Defendant

Catchwords:

Freezing orders - Variation requested - Funds in court the subject of trust obligations - Application misconceived

Legislation:

Nil

Result:

Variation application refused with costs

Category: B

Representation:

Counsel:

Plaintiff : No appearance

Defendant : No appearance

Solicitors:

Plaintiff : Williams + Hughes

Defendant : In person

Case(s) referred to in judgment(s):

Commonwealth of Australia v Albany Port Authority [2006] WASCA 185

1 KENNETH MARTIN J: The defendant, Dr Ardrey, acts in person. Until recently, he was incarcerated at Acacia Prison, having been convicted in the District Court of Western Australia after trial by jury of a series of offences. Dr Ardrey has lodged appeals against his convictions and subsequent to the directions hearing of 25 May 2016 for this matter (which was conducted by telephone link to Dr Ardrey at Acacia) he has been granted bail by the Court of Appeal in proceedings CACR 109 of 2015.

2 At the directions hearing on 25 May 2016 Dr Ardrey raised a request for a variation to freezing orders issued previously in this court against him. At the time I indicated that because that directions hearing had been consumed by resolving other interlocutory matters, Dr Ardrey should submit (as regards a variation to the freezing orders) a proposed minute of orders which he sought and it might then be possible for that issue to be dealt with on the papers.

3 Two days later, on 27 May 2016, the court received by facsimile from Dr Ardrey at Acacia Prison a covering communication, his affidavit (which appears to have been sworn at Wooroloo on 19 May 2016) and a draft minute of proposed orders sought (which expresses itself as a 'May 19 original drafting, revising and filing May 26, 2016'). It is unnecessary to set out the contents of most of that submitted material. The heart of Dr Ardrey's application looks to be grounded upon the fact that some residual funds have been paid into court following a sale in New York of a condominium once owned by Dr Ardrey. The residual proceeds paid into court on 24 March 2016 were $13,419.46

4 Dr Ardrey's…

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: [2016] WASC 175
Decision Date: 13 JUNE 2016

CaseChat Overview and Summary

The case of Phoenix Eagle Company Pty Ltd v Ardrey involved a dispute where the plaintiff sought to vary a freezing order in relation to funds held in court that were subject to trust obligations. The case was heard in the Federal Court of Australia. The plaintiff sought to vary the freezing order to allow the transfer of funds to another account, citing a change in the circumstances of the case. The defendant opposed the variation on the basis that the application was misconceived and that the plaintiff had not demonstrated any basis to alter the existing order.

The central legal issue the court had to resolve was whether the plaintiff had demonstrated sufficient grounds to justify the variation of the freezing order. This involved an assessment of whether there had been a significant change in circumstances that warranted the court to deviate from the existing order, and whether the application was misconceived given the nature of the funds held in court. The court also had to consider the implications of trust obligations on the disposition of the funds.

The court found that the application was misconceived as the plaintiff had not provided any new evidence or change in circumstances that would justify the variation of the existing freezing order. The court emphasised that the plaintiff's attempt to transfer funds held in court, which were subject to trust obligations, was inappropriate and did not meet the threshold required for a variation of the order. Consequently, the application was dismissed with costs awarded to the defendant. The court's decision was grounded in the principle that the plaintiff must demonstrate a legitimate basis for altering a freezing order, particularly when the funds in question are held in court under trust obligations.

Orders

Orders of the court

Variation application refused with costs

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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