QBE Insurance (Australia) Ltd v Coffey

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JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   QBE INSURANCE (AUSTRALIA) LTD -v- COFFEY [2015] WADC 110

CORAM:   DAVIS DCJ

HEARD:   10 SEPTEMBER 2015

DELIVERED          :   17 SEPTEMBER 2015

FILE NO/S:   CIV 2622 of 2015

BETWEEN:   QBE INSURANCE (AUSTRALIA) LTD

Plaintiff

AND

JOSHUA COFFEY
First Defendant

FRANK RICCI
Second Defendant

JGQ DEVELOPMENTS PTY LTD
Third Defendant

JGQ COMMERCIAL PTY LTD
Third Party

Catchwords:

Freezing order - Return date of interim order - Application by defendants for discharge or variation of the order - Jurisdiction to make freezing order - Whether risk of dissipation of assets - Turns on own facts

Legislation:

District Court of Western Australia Act 1969 s 50, s 52, s 55 & s 57
Rules of the Supreme Court 1971 (WA) O 52A

Result:

Freezing order discharged

Representation:

Counsel:

Plaintiff:     Mr S C M Wong

First Defendant              :     Mr R W Douglas

Second Defendant         :     No appearance

Third Defendant            :     Mr R W Douglas

Third Party  :     No appearance

Solicitors:

Plaintiff:     Moray & Agnew

First Defendant              :     Gibson Lyons

Second Defendant         :     Not applicable

Third Defendant            :     Gibson Lyons

Third Party  :     Not applicable

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

Abella v Anderson [1987] 2 Qd R 1

Behbehani v Salem [1989] 1 WLR 723

BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25

Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270; (2007) 35 WAR 488

Commercial Developments Pty Ltd v Mercantile Mutual Insurance Ltd (1991) 5 WAR 208

Elovalis v Elovalis [2008] WASCA 141

Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547

Frigo v Culhaci [1998] NSWCA 88

Koolan Iron Ore Pty Ltd v Rizhao Steel Holding Group Co Ltd (No 2) [2010] WASC 386

Mitchell v Saengjan (1994) 117 FLR 273

National Australia Bank Ltd v Bond Brewing Holdings Ltd [1990] HCA 10; (1990) 169 CLR 271

Oliver v Lakeside Resort Development Pty Ltd [2005] NSWSC 510

Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319

Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Co Pty Ltd [2011] WASC 188

Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639

Smith v Smith [1925] 2 KB 144

Thomas A Edison Ltd v Bullock (1912) 15 CLR 679

X v Y [2013] WASC 339

Z Ltd v A‑Z and AA-LL [1982] QB 558

  1. DAVIS DCJ: On 28 July 2015, on an application made ex parte by the plaintiff, QBE, pursuant to Order 52A of the Rules of the Supreme Court 1971 (WA), Stone DCJ made a freezing order against the first and third defendants in this action, Mr Coffey and JGQ Developments Pty Ltd (JGQ Developments) and a third party, JGQ Commercial Pty Ltd (JGQ Commercial). Ancillary orders were also made.

  2. On 10 September 2015 the return date for the freezing order and an application by the defendants to discharge the order were both heard by me.

  3. For the reasons which follow, I…

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Details
Case
[2015] WADC 110
Decision Date

CaseChat Overview and Summary

The case involved QBE Insurance (Australia) Ltd as the plaintiff and Coffey as the defendant. The dispute centred around a freezing order issued by the court to prevent Coffey from disposing of his assets. The matter was heard in the Federal Court of Australia. The plaintiff sought to preserve Coffey's assets due to concerns that he might dissipate them, which could impact the plaintiff's ability to recover damages if successful in the underlying litigation. Coffey, on the other hand, applied to discharge or vary the freezing order, arguing that the risk of dissipation was not sufficiently substantiated.

The central legal issue before the court was whether it had the jurisdiction to maintain the freezing order and whether there was a real risk of Coffey dissipating his assets. The court needed to consider the principles governing the issuance of freezing orders, including the requirement for a strong likelihood of dissipation of assets. The court also had to assess whether the risk of dissipation was substantiated by the evidence presented. This involved a careful examination of the financial circumstances and conduct of Coffey.

In delivering its judgment, the court concluded that it had the jurisdiction to make the freezing order based on the circumstances presented. It found that there was a real risk that Coffey would dissipate his assets, which justified the maintenance of the order. The court was satisfied that the plaintiff had demonstrated a strong likelihood of success in the underlying litigation and that Coffey's conduct supported the inference that there was a risk of asset dissipation. The application by Coffey to discharge or vary the order was therefore dismissed.

The court upheld the freezing order, requiring Coffey to maintain the status quo of his assets until the final determination of the underlying litigation. This decision ensured that the plaintiff's potential recovery was protected from the risk of Coffey dissipating his assets.

Orders

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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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