Rowell v Torbeckin Pty Ltd - [2022] VSC 624

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

S ECI 2022 04086

RODNEY STANLEY ROWELL	Plaintiff
v
TORBECKIN PTY LTD (ACN 006 306 047)	First Defendant
and
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2022
DATE OF RULING:	18 October 2022
CASE MAY BE CITED AS:	Rowell v Torbeckin Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 624

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PRACTICE COURT – Freezing order – Application by First Defendant made in caveat removal proceeding – Freezing order sought to restrain net proceeds of sale – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 37A – Application for freezing order refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P Caillard	Hicks Oakley Chessell Williams
For the Defendant	J Kenny, solicitor	Kalus Kenny Intelex

HER HONOUR:

Before me in the Practice Court is an application by the first defendant for a freezing order, pursuant to Order 37A of the Supreme Court (Civil Procedure) Rules 2015 (Vic), against the proceeds of sale of the plaintiff’s home. The amount sought to be subject to the freezing order is approximately $330,000.

The application arises in somewhat unusual circumstances. The first defendant (Torbeckin) lodged a caveat over the plaintiff’s home in McKay St, Richmond on 12 September 2022. The plaintiff (Rodney) had entered into a contract of sale that was due to settle on 17 October 2022. On 12 October 2022, Rodney filed an application to remove the caveat, which was listed for hearing on 14 October 2022. However, despite correspondence since 20 September 2022 between the parties’ solicitors foreshadowing provision of an affidavit,[1] Torbeckin had filed no affidavit material in support of its caveatable interest by the morning of the 14 October 2022. The correspondence on behalf of Torbeckin focused on alleged wrongdoing by Rodney and the need for a restraining order to compel discharge of a debt Rodney owed to Torbeckin as a result of misuse of company funds. By correspondence dated 13 October 2022, the second defendant indicated that she did not intend to appear in the caveat removal action.
[1]Letter from Jonathan Kenny to Matthew Hicks dated 20 September 2022 (Exhibit to the Affidavit of Rodney Rowell dated 12 October 2022, pages 143-145).

The proceeding was stood down to allow Torbeckin to provide its affidavit material and it did so. In the course of the day the parties reached an agreement that the caveat would be removed and Torbeckin would bring this application for a freezing order in relation to some funds from the settlement, which would be heard on 17 October 2022. Rodney has undertaken not to deal with surplus funds from settlement pending determination of the freezing order application.

Torbeckin’s main asset is the freehold of premises at 392 Victoria St, Richmond VIC 3121, at which a business operates called ‘the Candy Club’. Rodney has been a director and secretary of Torbeckin since the 1980s and was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rowell v Torbeckin Pty Ltd

Details

AGLC: Rowell v Torbeckin Pty Ltd [2022] VSC 624
Case: [2022] VSC 624
Decision Date: 18 October 2022

CaseChat Overview and Summary

In the matter of Rowell v Torbeckin Pty Ltd, the dispute originated in the County Court of Victoria where the plaintiff, Rowell, sought to remove a caveat lodged by the first defendant, Torbeckin Pty Ltd. The first defendant, in turn, applied for a freezing order to restrain the net proceeds of the sale of a property that was the subject of the caveat. The case revolved around the interpretation and application of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) rule 37A. The primary legal issue was whether the first defendant was entitled to a freezing order under the circumstances presented.

The court considered the criteria for granting a freezing order, as outlined in rule 37A, which requires the court to be satisfied that the applicant has a good arguable case and that there is a risk of dissipation of assets. The court examined the evidence and submissions provided by both parties and concluded that the first defendant had not demonstrated a sufficient risk of asset dissipation to warrant the imposition of a freezing order. The court found that the first defendant had not provided compelling evidence to support the necessity of such an order and that the risk of dissipation was not immediate or significant enough to justify the interference with the plaintiff’s right to sell the property.

Consequently, the first defendant's application for a freezing order was refused. The court determined that the circumstances did not meet the stringent requirements set out in rule 37A, and the balance of convenience did not favour the imposition of the order. The court's decision was grounded in the principle that such orders should not be granted lightly and must be supported by clear and convincing evidence. The plaintiff was thus permitted to proceed with the sale of the property without the imposition of a freezing order on the net proceeds.

Orders