PJM v AML

Case [2018] QSC 187

SUPREME COURT OF QUEENSLAND

CITATION:

PJM & Ors v AML & Anor [2018] QSC 187

PARTIES:

PJM
(first applicant)
PKM
(second applicant)
PJM AS LITIGATION GUARDIAN FOR PLM
(third applicant)

v       
AML
(first respondent)
ACL

(second respondent)

FILE NO:

6551 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

17 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

4 July 2018

JUDGE:

Davis J

ORDER:

1.    Application dismissed.

2.    The respondents file and serve any material and written submissions on costs by 4 pm on 24 August 2018.

3.    The applicants file and serve any material and written submissions on costs by 4 pm on 31 August 2018.

4.    The respondents file and serve any material and written submissions in reply by 4 pm on 4 September 2018.

5.    The issue of costs be decided without oral argument.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DETENTION, INSPECTION AND PRESERVATION – FREEZING ORDERS – where the applicants seek freezing orders to prevent the first respondent from dealing with his interest in real property – where the second respondent also holds an interest in the property – where the applicants have not yet commenced personal injury proceedings – whether freezing orders should be made

Evidence Act 1977 (Qld) s 93A

Uniform Civil Procedure Rules 1999 (Qld) r 8, r 11, r 260A, r 260D, r 430

Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158, cited
Ex parte Britt [1987] 1 Qd R 221, cited
Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2006] NSWSC 317, cited
Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 107, followed
PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1, considered
R v G [1998] 1 Qd R 659, considered
Virgtel v Zabusky [2008] QSC 316, cited

Zhen v Mo & Ors [2008] VSC 300, considered

COUNSEL:

M Eliadis for the applicants

M Horvath with B Buckley for the first respondent

C J Kanther (solicitor) for the second respondent

SOLICITORS:

Shine Lawyers for the applicants

Corney & Lind Lawyers for the first respondent

BTLawyers for the second respondent

  1. The applicants, who all assert that they have claims for damages against the first respondent, seek freezing orders to preserve the first respondent’s interest in a house in the Moreton Bay region which he presently holds with the second respondent.  The respondents are likely to sell the house.  The applicants do not object to the sale, provided that the first respondent’s share of the sale proceeds is frozen.

  2. No claim has been made by the applicants against the second respondent, but she has been made a party to the application because she has an interest in the house.  The first respondent opposes the application.  The second respondent does not oppose the making of an order freezing the first respondent’s interest in any proceeds of sale, but is in dispute with the applicants as to the terms of…

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Details
AGLC
PJM v AML [2018] QSC 187
Case
[2018] QSC 187
Decision Date

CaseChat Overview and Summary

PJM v AML is a case before the court concerning an application for freezing orders in relation to a property held by the respondents. The applicants, PJM, seek the orders to prevent the first respondent, AML, from dealing with his interest in the property while they pursue personal injury proceedings against him. The second respondent, who is married to AML, holds an interest in the property but is not the subject of any claim. The first respondent opposes the application, while the second respondent does not oppose the freezing order but disputes the terms of the order. The court had to decide whether the freezing orders should be made despite the fact that the applicants had not yet commenced personal injury proceedings.

The legal issue before the court was whether freezing orders should be granted to prevent the first respondent from dealing with his interest in the property while the applicants pursue personal injury proceedings against him. The applicants argued that they had a strong likelihood of success in their claims and that the first respondent's interest in the property was at risk of being dissipated. The first respondent opposed the application, arguing that the applicants had not yet commenced proceedings and that the freezing orders were an unnecessary interference with his property rights.

The court dismissed the application for freezing orders. The court found that the applicants had not yet commenced personal injury proceedings and that there was no urgency in making the orders. The court also found that the applicants had not demonstrated that they had a strong likelihood of success in their claims, and that the first respondent's interest in the property was not at risk of being dissipated. The court further found that the second respondent's interest in the property should not be affected by the freezing orders, and that the orders would be an unnecessary interference with her property rights.

The court dismissed the application for freezing orders and ordered the parties to file and serve written submissions on costs. The court found that the applicants had not demonstrated that they were entitled to the freezing orders and that the orders would be an unnecessary interference with the first respondent's property rights. The court further found that the second respondent's interest in the property should not be affected by the freezing orders. The court ordered the parties to file and serve written submissions on costs and decided the issue of costs without oral argument.

Orders

Orders of the court

1. Application dismissed.

2. The respondents file and serve any material and written submissions on costs by 4 pm on 24 August 2018.

3. The applicants file and serve any material and written submissions on costs by 4 pm on 31 August 2018.

4. The respondents file and serve any material and written submissions in reply by 4 pm on 4 September 2018.

5. The issue of costs be decided without oral argument.

Background

Background to the litigation

No claim has been made by the applicants against the second respondent, but she has been made a party to the application because she has an interest in the house. The first respondent opposes the application. The second respondent does not oppose the making of an order freezing the first respondent’s interest in any proceeds of sale, but is in dispute with the applicants as to the terms of an appropriate order.Background The respondents are married and have been for some 45 years. The first respondent is almost 68 years of age and the second respondent is 67. Their house is very close to that occupied by the applicants. The first and second applicants are the parents of the third applicant who brings proceedings through her litigation guardian, the first applicant. The third applicant is 11 years old. Police have charged the first respondent with offences of a sexual nature against three complainants, including the third applicant. Upon the first respondent being charged, the respondents separated. At present the second respondent still resides in the house and the first respondent lives with the couple’s adult daughter. While the respondents originally held the house as joint tenants, the second respondent has recently severed the joint tenancy with the result that the house is held by the respondents as tenants in common in equal shares. The house has been valued at $750,000. It has been listed for sale inviting offers over $800,000. A debt of $73,500.00 (rounded) is secured on the property. That debt includes $31,000 which was drawn on the mortgage and paid to solicitors acting for the first respondent in the civil case which is anticipated against him, and to other solicitors acting in relation to the criminal charges which have been laid. Apart from his interest in the house, the first respondent’s assets consist of:1.a motor vehicle worth about $7,000;2.a coin collection worth about $800;3.about $500, being his share of money held in a credit account at a bank. Legal fees likely to be incurred by the first respondent in defending both the civil proceedings and criminal charges are about $75,000 in addition to the amount already paid to the various solicitors. The applicants have not yet issued proceedings but have given notices of claim pursuant to the provisions of the Personal Injuries Proceedings Act 2002 (“PIPA”). The third applicant claims damages for personal injury as a result of the alleged sexual assault. The other applicants claim damages for psychiatric injury, although the exact basis of their claims is far from clear. Simone Hoeft-Marwick, a solicitor employed by the firm of solicitors representing the applicants, has expressed in her affidavit an opinion that the applicants’ damages, if they are successful in their claims, would exceed $250,000. The freezing order is sought by originating application in support of the civil claim, which cannot be commenced because the procedures prescribed by PIPA have not yet been completed. The application came before Mullins J on 27 June 2018 who, by consent, made orders preserving the house and adjourned the application to 4 July 2018. On that day the matter came before me. I heard the application and reserved judgment. Upon my indication, certain undertakings were given by the first respondent pending delivery of judgment on the present application. Both the consent to the orders made by Mullins J, and the giving of the undertakings were for the purpose of maintaining the status quo while the present application could be determined and did not constitute any admission by the first respondent. The assertion by Ms Hoeft-Marwick in her first affidavit that by an exchange of emails in late June 2018 the first respondent had agreed to the freezing orders now sought is obviously wrong.

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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