Rozenblit v Vainer

Rozenblit sought leave to appeal against a decision to dismiss their claim for damages against Vainer and others. The primary judge had found that Vainer and others had committed serious misconduct and ordered them to pay nominal damages, but the primary judge had dismissed the claim for damages on the basis that the plaintiff had failed to prove their case. Vainer and others opposed the application for leave to appeal, arguing that there was no good arguable case and that the balance of convenience did not favour the making of a freezing order. The primary judge had made a freezing order pending the outcome of the appeal, freezing the assets of Vainer and others.

The court had to consider whether there was a good arguable case for appeal and whether the balance of convenience favoured the making of a freezing order. The court found that there was a good arguable case for appeal because there were arguable errors in the primary judge's reasoning that had the potential to affect the outcome of the appeal. The court also found that the balance of convenience favoured the making of a freezing order because there was a real prospect of success on appeal and a reasonable possibility that the assets may be disposed of, dealt with, or diminished in value if the order was not made. The court noted that the primary judge had found Vainer to be an unreliable witness who had disregarded discovery obligations and frustrated the Court's processes and proper administration of justice. The court also found that there was no serious hardship to Vainer and others if the freezing order was made.

The court allowed the appeal and made a freezing order pending the outcome of the appeal. The court found that the primary judge had erred in dismissing the claim for damages and that there was a good arguable case for appeal. The court also found that the balance of convenience favoured the making of a freezing order because there was a real prospect of success on appeal and a reasonable possibility that the assets may be disposed of, dealt with, or diminished in value if the order was not made.

The court also considered the application for security for costs and found that it would be unjust to deprive Rozenblit of the ability to vindicate their rights arising from the misconduct of Vainer and others. The court noted that Vainer and others had substantial costs liability to Rozenblit from earlier proceedings against which the costs of the application for leave to appeal could be offset. The court ordered that no security for costs be paid by Rozenblit.