Sayed v Hemat [No 2]
[2012] WASC 225
•27 JUNE 2012
SAYED -v- HEMAT [No 2] [2012] WASC 225
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 225 | |
| 27/06/2012 | |||
| Case No: | COR:239/2009 | 29 MAY 2012 | |
| Coram: | MASTER SANDERSON | 29/05/12 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Order varied | ||
| 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
- 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.
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