Phoenix Eagle Company Pty Ltd v Ardrey
[2016] WASC 175
•13 JUNE 2016
PHOENIX EAGLE COMPANY PTY LTD -v- ARDREY [2016] WASC 175
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 175 | |
| Case No: | CIV:3072/2011 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 13/06/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Variation application refused with costs | ||
| 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 faxed papers as submitted on 27 May 2016 seek that the issue be determined upon the papers. That is a course which is now agreed to by the plaintiff's solicitors, but otherwise they essentially oppose Dr Ardrey's variation application (save in one respect concerning an amount of an adverse costs order issued against Dr Ardrey in respect of the taxed costs of the last directions hearing then awarded to the plaintiff - once those costs have been quantified). I hold the plaintiff's written submissions filed 3 June 2016 and signed by counsel.
5 The plaintiff's written submissions draw my attention to the fact Dr Ardrey has since been released from prison on bail - as a result of orders made by the Court of Appeal in CACR 109 of 2015 and on a basis of his provision of a bail undertaking and a surety in the amounts of $5,000 each.
The Freezing Orders of 2015
6 As indicated, I have previously issued freezing orders against Dr Ardrey. That was at a time when he was then represented by solicitors of record Bennett + Co. They issued on 6 August 2015.
7 I then varied those freezing orders on 20 August 2015, then extended them to run until further order, on 17 September 2015.
8 The freezing orders which have been issued are, generally speaking, in orthodox terms. They apply to all of Dr Ardrey's property save in certain respects as indicated. They permit a payment from Dr Ardrey's assets of an amount of $3,750 per week in respect of his family's ordinary living expenses as per order 10(a) of those orders.
9 Dr Ardrey became unrepresented as from 8 September 2015.
10 As regards funds currently held by the court, they are nett residual proceeds of Dr Ardrey's New York condominium being realised.
11 As regards these funds in court, special and additional contractual constraints are applicable to them. That is, the contractual constraints govern the funds held in court, above and beyond the scope of the general freezing orders which have issued to apply against all of Dr Ardrey's property.
12 As the plaintiff's written submissions of 3 June 2016 point out, there is a particular settlement agreement document to which Dr Ardrey is a party and which is found as annexure MR17 to the affidavit of Mark Richardson, sworn 4 August 2015, which has been read to the court on previous interlocutory applications. The terms of the settlement agreement were perfected and agreed with the plaintiff at a time when Dr Ardrey was legally represented. They govern specifically the proceeds of a sale of the New York condominium. Clause 2(a)(v) of that settlement agreement provides, in effect, that residual funds are to be held:
on trust for the purpose of satisfying any further debt owed by [Dr Ardrey] to the plaintiff arising out of Supreme Court of WA proceeding [CIV 3072 of 2011, ie, this action] until final resolution of the Supreme Court of WA proceedings.
13 Whatever then might be said about the freezing orders in relation to Dr Ardrey's other property and assets (if any), the specific contractual obligations manifesting under cl 2(a)(v) of the settlement agreement are binding and remain in place. Hence, the residual funds from the sale of the New York condominium are to be held in trust. The funds currently in court are trust funds resulting from the sale of the New York condominium and remain as bound by those trust arrangements. Those trust arrangements apply irrespective of the freezing order terms.
14 As the plaintiff's written submissions point out, there was a previous variation application by Dr Ardrey made and dealt with on 6 April 2016 in relation to the same trust funds - which was then rejected by me for this same reason. As a self-represented litigant, Dr Ardrey may not appreciate the significance of that earlier ruling. Hence, the plaintiff's submission now is that the present application is an abuse of process as a like application that has, in effect, been made previously, rejected previously, and that no further issue of relevance has emerged to detract from that position. The plaintiff invokes Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 and the authorities mentioned concerning abuses of process at [70] - [76].
15 Consequently, Dr Ardrey's application for a release of funds from the moneys currently held in court in the amount of three payments of $3,750 each, amounting to $11,250, must be seen as misconceived. It must be rejected.
16 Furthermore, as the plaintiff's written submissions once again correctly point out, there is a flawed premise apparent in Dr Ardrey's submission. The flaw is by reference to an implicit assumption that Dr Ardrey presently suffers under an obligation to make maintenance payments to his family in the amount of $3,750 per week - as a consequence of par 10(a) of the freezing orders. The plaintiff's submissions correctly identify that there is no such obligation upon Dr Ardrey to render payments, as par 10(a) of the freezing orders is only facultative. It, in effect, permits Dr Ardrey to render those payments from any other funds or assets he holds without infringing the freezing orders.
17 However, the nett residual proceeds from the sale of the New York condominium remain the subject of the specific contractual trust arrangements.
18 The plaintiff's submissions also point out that previous orders have been made requiring Dr Ardrey to render a full and frank disclosure of his assets and financial dealings, but they say that Dr Ardrey has not properly or completely complied with the orders to the plaintiff's satisfaction (Dr Ardrey citing on occasion the difficulties inhibiting full and proper compliance by reason of the constraints of his incarceration). Now that Dr Ardrey has been released on bail, the plaintiff presses for proper compliance by Dr Ardrey with those previous disclosure of asset orders. In fact, the plaintiff has cross-applied for orders against Dr Ardrey in terms:
Within 21 days of this order, [Dr Ardrey] is to file and serve an affidavit fully complying with order 1 of the court's orders of 26 November 2015 and answering specifically each subparagraph of that order.
19 I understand the basis of the plaintiff's foreshadowed cross-application, but I am not prepared to deal with that issue on the papers at this time, merely because Dr Ardrey now finds himself at liberty on bail. That issue can be canvassed if need be at the next directions hearing, which I note is scheduled for Friday, 22 July 2016. Dr Ardrey is, therefore, in effect, put on notice from now in respect of that foreshadowed cross-application by the plaintiff at that appointment.
20 Consequently, therefore, the present application to allow 'variation' payments from the funds held in court in the terms as sought by Dr Ardrey by his faxed materials of 27 May 2016, is misconceived. That application is hereby dismissed.
21 The plaintiff also seeks its taxed costs of resisting Dr Ardrey's application to vary the freezing orders. Those costs are essentially the legal costs associated with the five pages of written submitted answering submissions of the plaintiff of 3 June 2016, which were signed by counsel for the purposes of facilitating this matter being resolved on the papers, as it now has been. In my view, the plaintiff should have its costs of providing written submissions in opposition to the present application. By reference to practice direction 4.7.1.1, I will fix these costs for the costs of an opposed application in the CMC List pursuant to item 2.10, being $1,419, which amount is payable forthwith by Dr Ardrey.
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