Populin v Benge

[2010] QDC 122

[2010] QDC 122

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 118 of 2010

HANNI POPULIN	Plaintiff
and
JOHN BENGE	Defendant

SOUTHPORT

..DATE 04/03/2010

ORDER

CATCHWORDS
Uniform Civil Procedure Rules r 260A, r 665

Freezing order made ex parte in respect of boats (or proceeds of sale) at suit of investor seeking return of his funds
 

HIS HONOUR: The Court has made an order in terms of the initialled draft. It is made under rule 260A of the Uniform Civil Procedure Rules which now confers a wide jurisdiction to make freezing orders. The order's made ex parte on the plaintiff giving the usual undertaking as to damages. The initialled draft invites the plaintiff to add to it the customary notice under r 665 regarding liability of the defendant to contempt proceedings if the order is not complied with.

It seeks to "freeze" two named motor vessels, or the proceeds of sale of them.  The plaintiff's information is that one of them may have been sold already.  It is perhaps to be hoped that that is the case because the order requires the defendant to have the vessels transferred to an identified berth where they can be moored securely in the custody of the plaintiff or her agents until further order until further order.

The Court understands from Mr Eastwood that the identified berth is available, although there is no specific evidence to that effect before the Court; more significantly, it has accommodation for one vessel only.

I think I am correct in saying that the information coming to the plaintiff from the defendant makes the suggestion that she is interested in only one of the vessels, and that is the one that is being sold?

MR EASTWOOD:  No, it's the one that's not being sold.

HIS HONOUR:  The one that hasn't been sold?

MR EASTWOOD:  Yes.

HIS HONOUR:  In those circumstances, the case for a freezing order in respect of the vessel understood to still be with the defendant is stronger.  To the extent that there are proceeds of sale of one or both vessels, those are not to be dealt with by the defendant except by being paid into the plaintiff's solicitor's trust account where effectively they will be under the control of the Court.

The applicant/plaintiff agreed to put $70,000 of her money into a venture which would involve acquisition of a vessel in the United States which would be transported to the Gold Coast and refurbished.  There were a number of proposals put in writing by Mr Benge.  The final arrangement may not have been precisely in accordance with any of them.

Ms Populin's case is that she was expecting a sale of the vessel on a basis which would give her a 40 per cent return by the 18th of September 2008, the agreement having been made on the 18th of May 2008.  Things changed.  In particular, they changed by Ms Populin putting in additional funds, an amount of $20,000, which she expected to be repaid, and then an amount of some $35,000 to cover shipping costs in respect of two vessels to permit their being released to the defendant of their arrival in Australia.

The evidence is clear that all of those moneys were supplied, and, indeed, there seems to be acknowledgement from Mr Benge that the investment was now $125,000.  There is what appears to be a unilateral attempt by Mr Benge to change the arrangements to include an entitlement of Ms Populin to have the title of at least one vessel in her name, but she doesn't, as I understand things, contend that she accepted that proposal.

There is acknowledgement from the solicitor who appears to be representing Mr Benge of Ms Populin's entitlements in a general way.  I comment on this because when Mr Davies‑Graham's affidavit was filed, the material described in it and intended to be exhibited was omitted.  Exhibit 1 is a copy of the affidavit complete with such material.

I have not read what are now the exhibits to the affidavit.  Some of the material is identified in the affidavit as "without prejudice" and it might be inappropriate for the Court to read that.  Mr Eastwood explains that the material was put in, in acknowledgement of the duty of disclosure which his client comes under in this ex parte application - which required an acknowledgement by her of the extent to which Mr Benge, or the solicitors for him, had made responses to communications.

I have been prepared to act on Mr Davies-Graham's summary of what the solicitor on the other side has said to him on the telephone in circumstances that were not identified as "without prejudice".  I thought it appropriate to proceed on an ex parte basis, notwithstanding the involvement of that other firm.  The present circumstances are fairly typical of those in which common experience is that giving notice of intention to seek a freezing order to a person who may be  minded to place money or other items beyond the reach of the plaintiff and the Court may be unwise.

The material the Court has read serves to indicate that Mr Benge is without the ability to meet financial demands which is really what the plaintiff makes against him, notwithstanding that the claim is, in the first instance, for specific performance.  She is really after money, and the strong likelihood is that her prospects of getting any depend on the boats, and/or proceeds of sale of them, being kept close.  She has been kept out of what appear to be her entitlements for nearly 18 months now.

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