Reliance Financial Services Pty Ltd v La Hood & Ors

[2006] NSWSC 697

CITATION:	Reliance Financial Services Pty Ltd v La Hood & Ors [2006] NSWSC 697
HEARING DATE(S):	07/07/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	07/07/2006
DECISION:	First Defendant ordered to return documents taken from plaintiff or solicitor. Otherwise, motion dismissed.
CATCHWORDS:	PROCEDURE - Interlocutory relief - Whether injunction restraining dealings with property should be granted in absence of undertaking as to damages - Whether order requiring first defendant to identify her property should be made in absence of evidence of intention to deal with property to disable satisfaction of any judgment of the Court - Whether first defendant should be ordered to return files taken from solicitor's office - Whether first defendant should be ordered to give discovery before pleadings
PARTIES:	Reliance Financial Services Pty Ltd - Plaintiff Jamelie Josephine Joan La Hood - 1st Defendant Permanent Trustee Australia Ltd - 2nd Defendant Perpetual Trustees Victoria Ltd - 3rd Defendant Swart & Associates Pty Ltd - 4th Defendant
FILE NUMBER(S):	SC 3473/06
COUNSEL:	Mr D Allen - Plaintiff Mr M Rollinson - 1st Defendant
SOLICITORS:	Hancocks Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 7 JULY 2006

3473/06 RELIANCE FINANCIAL SERVICES PTY LTD v JAMELIE JOSEPHINE JOAN LA HOOD & ORS

EX TEPORE JUDGMENT

1 Before the Court is an amended notice of motion for various kinds of relief. The summons alleges that the defendants entered into three loan agreements with the plaintiff, Reliance Financial Services Pty Ltd. The loan agreements contain a provision granting a charge over property and contain an agreement to mortgage any real property.

2 In par 5 of the amended notice of motion, Reliance seeks an interlocutory order restraining the first defendant from further encumbering or causing to be further encumbered any real property, chattels or other property owned, at law or beneficially, until further order, without giving 21 days notice in writing to Reliance.

3 Mr Allen, who appeared for Reliance, indicated that an undertaking as to damages would not be given by Reliance. It was not in a position to do so. In those circumstances, I decline to grant the order sought in par 5.

4 In par 6 of the amended notice of motion an order is sought that within 21 days the first defendant file and serve an affidavit setting out all property owned by the first defendant, at law or beneficially; the date on which the said property was acquired; the name and address of all persons who have an interest in the said property, by way of joint ownership, trust, mortgage, charge or otherwise; all property owned by the first defendant, at law or beneficially, which has been disposed of by the first defendant since 8 August 2001; and, the name and address of the disponee of the said property and the consideration which they gave for the disposition to them of the property.

5 In support of the application Reliance relies upon a telephone conversation Sam Peter Cassaniti, a former director of Reliance, had with the first defendant after ascertaining that a caveat had been withdrawn. She said: "I had to settle a loan quickly. I could not get in touch with you so I had your signature forged. Don't worry you can put the caveat back on. We will pay you back every penny."

6 In my view, that evidence is insufficient to justify an order in aid of a freezing order of the Mareva type and I decline to make the order sought in par 6. There is no evidence that the first defendant has sought to frustrate or abuse the processes of the Court by dealing with her assets so as to be unable to answer any judgment or order of the Court.

7 In par 7 of the amended notice of motion an order is sought that the first defendant deliver up to the Court any documents she has in her possession, custody or power taken from Reliance and/or the offices of Reliance and/or Cassaniti & Associates.

8 The evidence supporting that application is that the first defendant visited Mr Cassaniti’s office where he had two lever arch files containing documents relating to the loans. He left the office on a number of occasions for several minutes. That evening, Mr Cassaniti could not find the files. He searched his office but could not locate them. That night he telephoned the first defendant and said: "Did you take any of my files with you?" to which the first defendant responded: "Yes, I am borrowing them to look at what has been borrowed."

9 Mr Rollinson, who appeared for the first defendant, submitted that the order should not be made but, instead, an order should be made requiring the first defendant to keep the documents in safe custody.

10 I do not see why documents which do not belong to her should be retained by the first defendant and I propose to make the order in par 7 of the amended notice of motion substituting for the word "Court" the word "Registrar" and requiring the documents to be lodged with the Registrar within seven days.

11 The final order sought in par 7A of the amended notice of motion is an order that the first defendant give within 14 days verified discovery of all documents for the period 1 January 2001 to date pertaining to advances of money made to or for the benefit of the first defendant by Reliance; statements of account for accounts held or operated by the first defendant; documents received by the first defendant from Reliance; and copies of documents sent to Reliance by the first defendant.

12 As I have said, the summons seeks relief with respect to three loan agreements. The first loan agreement relied upon appears to have been entered into with Mr Cassaniti and not with Reliance. The second loan agreement is with Reliance but on a basis different from that described in the caveat.

13 In the circumstances, it appears to me to be appropriate to order that the matter proceed by way the pleadings, which I do. The parties are directed to bring in short directions for that purpose.

14 In those circumstances, it seems to me appropriate to delay the question of discovery until after the pleadings have defined the issues. I decline to make the order sought in par 7A of the amended notice of motion. I reserve costs.

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