Samimi v Seyedabadi; Seyedabadi v Samimi

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279
Hearing dates:26 August 2013
Decision date: 28 August 2013
Before: McColl JA
Decision:

Extension of time motion:

(1) Extend the time for the cross-appellant to file and serve his notice of cross-appeal until 5pm on 4 September 2013.

(2) Cross-appellant to pay the costs of the application.

Freezing order notice of motion:

See paragraphs [90] and [91]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

INJUNCTIONS - application for freezing order - whether applicant has a good arguable case - whether danger that existing costs judgment or prospective judgment would be unsatisfied - UCPR 25.11, 25.14

PROCEDURE - extension of time to file and serve notice of cross-appeal - UCPR 51.17
Legislation Cited: Civil Procedure Act 2005
Evidence Act 1995
Home Building Act 1989
Uniform Civil Procedure Rules 2005
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Aquasun Pty Ltd v Coverdale Ram Pty Ltd [2000] NSWSC 1146
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Finn v Carelli [2007] NSWSC 261
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Frigo v Culhaci [1998] NSWCA 88
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 50 ACSR 380
Nanschild v Pratt [2011] NSWCA 85
Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249; (2008) 163 LGERA 83
Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG 'The Niedersachsen' [1983] 1 WLR 1412; [1984] 1 All ER 398
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Richards v Cornford (No 3) [2010] NSWCA 134
SG v Director of Public Prosecution (NSW) [2003] NSWCA 128
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306
Tagget v Sexton [2009] NSWCA 91; (2009) 255 ALR 522
Tomasetti v Brailey [2012] NSWCA 6
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61
United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323
Category:Interlocutory applications
Parties: Kamran Samimi - applicant/respondent
Ali Seyedabadi - respondent/applicant
Representation: Mr R P Freeman for applicant/respondent
Mr M Auld for respondent/applicant
Scarfone & Co for applicant/respondent
Respondent/applicant: N/A
File Number(s):CA 2013/95298
 Decision under appeal 
Citation:
Unreported
Date of Decision:
2013-03-04 00:00:00
Before:
Coorey DCJ
File Number(s):
DC 2008/317793

Judgment

  1. McCOLL JA: On 4 March 2013 Coorey DCJ gave judgment in the District Court dismissing…

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Details
Case
[2013] NSWCA 279
Decision Date

CaseChat Overview and Summary

In the proceedings of *Samimi v Seyedabadi; Seyedabadi v Samimi*, the New South Wales Court of Appeal considered an application for a freezing order and a related application for an extension of time to file a notice of cross-appeal. The dispute involved an underlying costs judgment and a prospective judgment, with the applicant seeking to restrain the respondent from dissipating assets.

The primary legal issues before the Court of Appeal were whether the applicant for the freezing order had established a good arguable case and whether there was a demonstrable danger that any existing or prospective judgment would be unsatisfied due to the respondent's conduct. Additionally, the Court was required to determine whether to grant an extension of time for the cross-appellant to file and serve his notice of cross-appeal, pursuant to Rule 51.17 of the Uniform Civil Procedure Rules 2005.

McColl JA granted the extension of time for the cross-appellant to file and serve his notice of cross-appeal, ordering that the cross-appellant pay the costs of that application. The Court also addressed the notice of motion for a freezing order, with the specific orders in relation to this motion detailed in paragraphs [90] and [91] of the judgment. The Court's reasoning and the principles applied in determining these matters are set out in the full judgment.

Orders

Orders of the court

Extension of time motion:

(1) Extend the time for the cross-appellant to file and serve his notice of cross-appeal until 5pm on 4 September 2013.

(2) Cross-appellant to pay the costs of the application.

Freezing order notice of motion:

See paragraphs [90] and [91]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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