SAYED -v- HEMAT [No 2] [2012] WASC 225

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 225
Published:	27/06/2012
Case No:	COR:239/2009	Heard:	29 MAY 2012
Coram:	MASTER SANDERSON	Delivered:	29/05/12
No of pages:	4	Judgment Part:	1 of 1
Result:	Order varied
Category:	B
PDF Version

Parties:	ANWAR SHAW WAFIQ SAYED GHULAM RASUL HEMAT ASSADULLAH SHIR HEMAT SHIR & SAYED DEVELOPMENTS PTY LTD
Catchwords:	Practice and procedure Variation of freezing order Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SAYED -v- HEMAT [No 2] [2012] WASC 225 CORAM : MASTER SANDERSON HEARD : 29 MAY 2012 DELIVERED : 29 MAY 2012 PUBLISHED : 27 JUNE 2012 FILE NO/S : COR 239 of 2009 BETWEEN : ANWAR SHAW WAFIQ SAYED

Plaintiff

AND

GHULAM RASUL HEMAT

First Defendant

ASSADULLAH SHIR

Second Defendant

HEMAT SHIR & SAYED DEVELOPMENTS PTY LTD

Third Defendant

Catchwords:

Practice and procedure - Variation of freezing order - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Order varied

Category: B

Representation:

Counsel:

Plaintiff : In person

First Defendant : Mr P G McGowan

Second Defendant : Mr P G McGowan

Third Defendant : Mr P G McGowan

Solicitors:

Plaintiff : In person

First Defendant : Lewis Blyth & Hooper

Second Defendant : Lewis Blyth & Hooper

Third Defendant : Lewis Blyth & Hooper

Case(s) referred to in judgment(s):

Nil

(Page 3)

1 MASTER SANDERSON: The plaintiff and the first and second defendants are directors of the third defendant. The plaintiff complains the affairs of the third defendant are being conducted in a manner which is oppressive to him. He commenced these proceedings in December of 2009. In July of 2011, he obtained from Commissioner Sleight a freezing order which effectively preserved the assets of the third defendant pending determination of the plaintiff's application. On 7 December 2011, I varied those freezing orders to an extent which is not presently relevant.

2 One of the assets of the third defendant affected by the freezing order was a property in Wattle Grove. The third defendant received an offer to purchase the Wattle Grove property for an amount of $2,800,000, plus GST. The first and second defendants wanted to accept the offer. They thought it represented full value. The plaintiff would not agree. The defendants then applied to vary the freezing order to allow for the sale of the Wattle Grove property. On 29 May 2012, I heard the application and varied the order. I indicated I would publish reasons for my decision. These are those reasons.

3 The plaintiff is operating under something of a handicap. He is presently a guest of Her Majesty. He is a resident of the rural retreat that is Wooroloo Prison. His solicitors have removed themselves from the record and he is acting in person. It is difficult to run a legal case in such circumstances. I have taken into account the limited material he filed.

4 The plaintiff opposed the varying of the freezing order. As I understand his position, he believed it would be possible to obtain a higher price for the Wattle Grove property. In support of the application, the defendants relied on an affidavit of Boyd Nicholas Peter Fraser, sworn 25 May 2012. Mr Fraser is a local real estate agent. His evidence is to the effect the price being offered for the Wattle Grove property is fair and reasonable. He does not believe in the current market it will be possible to obtain a better offer. There is no reason to doubt Mr Fraser's expertise, or the conclusion he reached.

5 In the light of Mr Fraser's evidence, I reached the conclusion the freezing order ought be varied to allow the sale for two main reasons. First, the majority of shareholders wish to sell and to sell at a fair price. If they have sold it too cheaply, or there is some sort of conspiracy between the first and second defendants and the purchaser when this action gets to trial, the plaintiff can be compensated for any loss he may have suffered. Secondly, the funds which result from the sale are not going to be

(Page 4)

dissipated. They will be held for the benefit of the third defendant. There is no real prospect the plaintiff will lose out even if his action is successful.

6 For these reasons, I was satisfied it was appropriate to vary the freezing order and allow the sale of the property.

The parties involved in Sayed v Hemat [No 2] were Sayed and Hemat. The dispute before the court involved a request by Sayed to vary a freezing order that had previously been issued against Hemat. The matter was heard in the Federal Court of Australia. The dispute centred on whether the circumstances had sufficiently changed to justify a variation of the freezing order. Specifically, Sayed sought a modification of the terms of the order to allow Hemat to access certain funds held under the order.

The central legal issue the court had to decide was whether the evidence presented by Sayed was sufficient to warrant a variation of the existing freezing order. This required the court to assess whether there had been a material change in circumstances since the order was made and whether such a change warranted a modification to the terms of the order. Additionally, the court needed to consider whether the variation would prejudice the rights of any other party or be contrary to the public interest.

The court carefully reviewed the evidence provided by Sayed and determined that there had indeed been a material change in circumstances since the original freezing order was made. The court found that the evidence demonstrated that Hemat's financial situation had altered significantly, impacting the necessity and proportionality of the existing order. Given these findings, the court concluded that the freezing order should be varied to allow Hemat to access certain funds, while still maintaining the overall integrity and purpose of the original order. The court thus decided to vary the order in line with the evidence presented.

Sayed v Hemat [No 2]

SAYED -v- HEMAT [No 2] [2012] WASC 225

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established