Rowley & Others v Dell’Osa & Another - [2016] QDC 319

DISTRICT COURT OF QUEENSLAND

CITATION:

Rowley & Others v Dell’Osa & Another [2016] QDC 319

PARTIES:

MURRAY LESLIE ROWLEY

(First Plaintiff/First Applicant)

and

PAMELA MARY ROWLEY

(Second Plaintiff/Second Applicant)

and

PAM GLEN PTY LTD CAN 009 900 387

(Third Plaintiff/Third Applicant)

and

ANGELA RITA DELL’OSA

(First Defendant/First Respondent)

and

PRS QLD PTY LTD CAN 102 416 286

(Second Defendant/Second Respondent)

FILE NO/S:

2514 of 2016

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 December 2016

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

15 November 2016

JUDGE:

Devereaux SC DCJ

ORDER:

1. THAT, ON THE PLAINTIFFS GIVING THE USUAL UNDERTAKING AS TO DAMAGES, A FREEZING ORDER BE MADE AGAINST THE DEFENDANTS, PURSUANT TO RULE 260A OF THE UNIFORM CIVIL PROCEDURE RULES, AS FOLLOWS:

                 I.      THAT THE DEFENDANTS BE RESTRAINED AND AN INJUNCTION ISSUE RESTRAINING THEM FROM DEALING WITH, DISPOSING OF OR FURTHER ENCUMBERING THE PROPERTY SITUATED AT UNIT 2, 6 BARRACUDA COURT, PALM BEACH, IN THE STATE OF QUEENSLAND AND MORE PARTICULARLY DESCRIBED AS LOT 1 ON SP 213849, CMS 40521, GOLD COAST, OF WHICH PROPERTY THE FIRST DEFENDANT IS THE SOLE REGISTERED PROPRIETOR, UNTIL THE COMPLETION OF THESE PROCEEDINGS AGAINST THE DEFENDANTS OR EARLIER ORDER OF THIS COURT;

                II.      THAT, IN THE EVENT THAT THE PROPERTY SITUATED AT 3 COACH WAY, UPPER COOMERA, IN THE STATE OF QUEENSLAND AND MORE PARTICULARLY DESCRIBED AS LOT 21 ON SP 173178, GOLD COAST IS SOLD, THEN THE DEFENDANTS SHALL PAY INTO THE TRUST ACCOUNT OF HUNTER SOLICITORS, LEVEL 1, 50 DAVENPORT STREET SOUTHPORT IN THE STATE OF QUEENSLAND, THE SUM OF ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000.00) TO BE HELD BY THE SAID SOLICITORS PENDING THE COMPLETION OF THESE PROCEEDINGS AGAINST THE DEFENDANTS OR EARLIER ORDER OF THIS COURT;

2.    THAT THIS ACTION, NUMBER 2514/16, BY THE PLAINTIFFS AGAINST THE DEFENDANTS BE STAYED PENDING THE FINAL DETERMINATION OF ASSOCIATED CRIMINAL PROCEEDINGS AGAINST THE FIRST DEFENDANTS OR EARLIER ORDER OF THIS COURT;

3.   THE PARTIES’ COSTS OF THESE APPLICATIONS BE RESERVED.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – INJUNCTIONS TO PRESERVE STATUS QUO OR PROPERTY PENDING DETERMINATION OF RIGHTS – MAREVA INJUNCTION – where the claim is for money misappropriated by the first defendant – where the first defendant has been committed for trial on criminal charges arising out of her employment – where there is a close relationship between the question to be decided in the criminal and civil proceedings - where the plaintiffs seek a freezing order over the properties of the first defendant – where the defendant does not contest the making of the freezing order but submits it should only affect one property – whether justice requires that the defendants preserve more than one of the first defendant’s properties

Legislation:

Uniform Civil Procedure Rules 1999 (Qld)

Cases:

Cardile v LED Builders Pty Limited [1999] HCA 18

Consolidated Constructions Pty Ltd v Bellenville Pty Ltd [2002] FCA 1513

Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264

COUNSEL:

W…

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.

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Details

Case: [2016] QDC 319
Decision Date: 9 December 2016

CaseChat Overview and Summary

The matter before the court involves a claim for money that the plaintiffs allege was misappropriated by the first defendant. The plaintiffs sought a freezing order over the properties of the first defendant, who has also been committed for trial on criminal charges arising from her employment. The first defendant did not contest the making of the freezing order but argued that it should only affect one of her properties. The court was required to determine whether justice required that the defendants preserve more than one of the first defendant's properties.

In deciding the matter, the court considered the close relationship between the questions to be decided in the criminal and civil proceedings. The court found that the plaintiffs had made out a strong prima facie case for the grant of a freezing order, given the allegations of misappropriation of funds and the first defendant's criminal charges. The court also noted that the first defendant's assets were likely to be dissipated if not preserved. However, the court considered that it was not necessary to freeze all of the first defendant's properties, as the plaintiffs had not established a sufficient need to do so. The court considered that freezing one property and requiring the proceeds of another to be held in trust pending the outcome of the proceedings was sufficient to protect the plaintiffs' interests.

The court made a freezing order against the defendants, restraining them from dealing with, disposing of, or further encumbering the property situated at Unit 2, 6 Barracuda Court, Palm Beach. In the event that the property situated at 3 Coach Way, Upper Coomera is sold, the defendants were required to pay $150,000 into the trust account of the plaintiffs' solicitors. The court also stayed the proceedings pending the final determination of the associated criminal proceedings against the first defendant. The parties' costs of the application were reserved.

Orders

Orders of the court

1. THAT, ON THE PLAINTIFFS GIVING THE USUAL UNDERTAKING AS TO DAMAGES, A FREEZING ORDER BE MADE AGAINST THE DEFENDANTS, PURSUANT TO RULE 260A OF THE UNIFORM CIVIL PROCEDURE RULES, AS FOLLOWS:

I. THAT THE DEFENDANTS BE RESTRAINED AND AN INJUNCTION ISSUE RESTRAINING THEM FROM DEALING WITH, DISPOSING OF OR FURTHER ENCUMBERING THE PROPERTY SITUATED AT UNIT 2, 6 BARRACUDA COURT, PALM BEACH, IN THE STATE OF QUEENSLAND AND MORE PARTICULARLY DESCRIBED AS LOT 1 ON SP 213849, CMS 40521, GOLD COAST, OF WHICH PROPERTY THE FIRST DEFENDANT IS THE SOLE REGISTERED PROPRIETOR, UNTIL THE COMPLETION OF THESE PROCEEDINGS AGAINST THE DEFENDANTS OR EARLIER ORDER OF THIS COURT;

II. THAT, IN THE EVENT THAT THE PROPERTY SITUATED AT 3 COACH WAY, UPPER COOMERA, IN THE STATE OF QUEENSLAND AND MORE PARTICULARLY DESCRIBED AS LOT 21 ON SP 173178, GOLD COAST IS SOLD, THEN THE DEFENDANTS SHALL PAY INTO THE TRUST ACCOUNT OF HUNTER SOLICITORS, LEVEL 1, 50 DAVENPORT STREET SOUTHPORT IN THE STATE OF QUEENSLAND, THE SUM OF ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000.00) TO BE HELD BY THE SAID SOLICITORS PENDING THE COMPLETION OF THESE PROCEEDINGS AGAINST THE DEFENDANTS OR EARLIER ORDER OF THIS COURT;

2. THAT THIS ACTION, NUMBER 2514/16, BY THE PLAINTIFFS AGAINST THE DEFENDANTS BE STAYED PENDING THE FINAL DETERMINATION OF ASSOCIATED CRIMINAL PROCEEDINGS AGAINST THE FIRST DEFENDANTS OR EARLIER ORDER OF THIS COURT;

3. THE PARTIES’ COSTS OF THESE APPLICATIONS BE RESERVED.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rowley & Others v Dell’Osa & Another [2016] QDC 319
PARTIES:	MURRAY LESLIE ROWLEY (First Plaintiff/First Applicant) and PAMELA MARY ROWLEY (Second Plaintiff/Second Applicant) and PAM GLEN PTY LTD CAN 009 900 387 (Third Plaintiff/Third Applicant) and ANGELA RITA DELL’OSA (First Defendant/First Respondent) and PRS QLD PTY LTD CAN 102 416 286 (Second Defendant/Second Respondent)
FILE NO/S:	2514 of 2016
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	9 December 2016
DELIVERED AT:	District Court at Brisbane
HEARING DATE:	15 November 2016
JUDGE:	Devereaux SC DCJ
ORDER:	1. THAT, ON THE PLAINTIFFS GIVING THE USUAL UNDERTAKING AS TO DAMAGES, A FREEZING ORDER BE MADE AGAINST THE DEFENDANTS, PURSUANT TO RULE 260A OF THE UNIFORM CIVIL PROCEDURE RULES, AS FOLLOWS: I. THAT THE DEFENDANTS BE RESTRAINED AND AN INJUNCTION ISSUE RESTRAINING THEM FROM DEALING WITH, DISPOSING OF OR FURTHER ENCUMBERING THE PROPERTY SITUATED AT UNIT 2, 6 BARRACUDA COURT, PALM BEACH, IN THE STATE OF QUEENSLAND AND MORE PARTICULARLY DESCRIBED AS LOT 1 ON SP 213849, CMS 40521, GOLD COAST, OF WHICH PROPERTY THE FIRST DEFENDANT IS THE SOLE REGISTERED PROPRIETOR, UNTIL THE COMPLETION OF THESE PROCEEDINGS AGAINST THE DEFENDANTS OR EARLIER ORDER OF THIS COURT; II. THAT, IN THE EVENT THAT THE PROPERTY SITUATED AT 3 COACH WAY, UPPER COOMERA, IN THE STATE OF QUEENSLAND AND MORE PARTICULARLY DESCRIBED AS LOT 21 ON SP 173178, GOLD COAST IS SOLD, THEN THE DEFENDANTS SHALL PAY INTO THE TRUST ACCOUNT OF HUNTER SOLICITORS, LEVEL 1, 50 DAVENPORT STREET SOUTHPORT IN THE STATE OF QUEENSLAND, THE SUM OF ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000.00) TO BE HELD BY THE SAID SOLICITORS PENDING THE COMPLETION OF THESE PROCEEDINGS AGAINST THE DEFENDANTS OR EARLIER ORDER OF THIS COURT; 2. THAT THIS ACTION, NUMBER 2514/16, BY THE PLAINTIFFS AGAINST THE DEFENDANTS BE STAYED PENDING THE FINAL DETERMINATION OF ASSOCIATED CRIMINAL PROCEEDINGS AGAINST THE FIRST DEFENDANTS OR EARLIER ORDER OF THIS COURT; 3. THE PARTIES’ COSTS OF THESE APPLICATIONS BE RESERVED.
CATCHWORDS:	EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – INJUNCTIONS TO PRESERVE STATUS QUO OR PROPERTY PENDING DETERMINATION OF RIGHTS – MAREVA INJUNCTION – where the claim is for money misappropriated by the first defendant – where the first defendant has been committed for trial on criminal charges arising out of her employment – where there is a close relationship between the question to be decided in the criminal and civil proceedings - where the plaintiffs seek a freezing order over the properties of the first defendant – where the defendant does not contest the making of the freezing order but submits it should only affect one property – whether justice requires that the defendants preserve more than one of the first defendant’s properties Legislation: Uniform Civil Procedure Rules 1999 (Qld) Cases: Cardile v LED Builders Pty Limited [1999] HCA 18 Consolidated Constructions Pty Ltd v Bellenville Pty Ltd [2002] FCA 1513 Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264
COUNSEL:	W…