Sayer v Tomanovic - [2015] NSWSC 1025

Supreme Court

New South Wales

Medium Neutral Citation: Sayer v Tomanovic [2015] NSWSC 1025
Hearing dates: 15 July 2015
Date of orders: 31 July 2015
Decision date: 31 July 2015
Jurisdiction: Common Law
Before: Davies J
Decision:
The parties should bring in Short Minutes of Order to reflect these reasons.

Catchwords: INJUNCTIONS – freezing orders – judgment obtained by plaintiffs – offer by plaintiffs to offset costs order ordered against plaintiffs – whether there is a danger that the judgment will not be satisfied – freezing order sought over proceeds of sale of three properties – misleading information provided to court by defendants regarding status of sale of one property – whether property being sold to avoid freezing order
PROCEDURE – notice to produce – failure of notice to comply with r 21.10 UCPR – whether documents sought relevant to fact in issue
Legislation Cited: Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bhushan Steel Ltd v Severstal Export GmbH [2012] NSWSC 583
In the matter of Global Mortgage Equity Corporation Pty Limited [2013] NSWSC 1586
In the matter of Global Mortgage Equity Corporation Pty Limited [2013] NSWSC 1818
Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279
Tomanovic v Argyle HQ Pty Ltd; Tomanovic v Global Mortgage Equity Corporation Pty Ltd; Sayer v Tomanovic [2010] NSWSC 152
Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104; (2011) 288 ALR 310
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; (2011) 288 ALR 385
Tomanovic v One Australia Pty Limited [2015] NSWCA 11
Trad Financial Services Pty Ltd & Anor v Trad & Anor (No. 2) [2013] NSWSC 1751
Category: Procedural and other rulings
Parties:
Kenneth James Sayer (First Plaintiff)
Ken Sayer Investments Pty Limited (Second Plaintiff)
Zoltan Tomanovic (First Defendant)
Australian Financial Services Corporation Pty Ltd (Second Defendant)
INTERESTED PARTIES:
Gallande Pty Ltd
Vera Tomanovic
Representation:
Counsel:
E Cowpe (Plaintiff)
V Gray (Defendant)
J T Svelha (Gallande Pty Ltd – interested party)
B Weigand (Vera Tomanovic – interested party)
Solicitors:
Brown Wright Stein (Plaintiffs)
Corporate & Civil Legal (Defendants)

File Number(s): 2009/297497

Judgment

The parties to these proceedings have been locked in dispute in three separate pieces of litigation in this Court. Two of the proceedings were in the Equity Division and the present proceedings were in the Common Law Division of the Court. The proceedings were ultimately heard together by Austin J who gave judgment on 5 March 2010: Tomanovic v Argyle HQ Pty Ltd; Tomanovic v Global Mortgage Equity Corporation Pty Ltd; Sayer v Tomanovic [2010] NSWSC 152.
An appeal by the Defendant Mr Tomanovic to the Court of Appeal in respect of two equity proceedings was successful: Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104; (2011) 288 ALR 310. As a result of orders made by the Court of Appeal in Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; (2011) 288 ALR…

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.

Keep reading for free

Create a free CaseChat account to read Sayer v Tomanovic and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 1025
Decision Date: 31 July 2015

CaseChat Overview and Summary

The case of Sayer v Tomanovic involved an application by the plaintiffs to obtain a freezing order over the proceeds of the sale of three properties, as well as an application to enforce a notice to produce. The plaintiffs sought the freezing order to protect their judgment against the defendants, who had offered to offset the costs of the proceedings but had failed to provide any security for the satisfaction of the judgment. The defendants had provided misleading information to the court regarding the status of the sale of one of the properties, raising concerns that the property was being sold to avoid the freezing order. The plaintiffs also sought to enforce a notice to produce, which the defendants had failed to comply with, and which related to documents relevant to the fact in issue.
The legal issues before the court were whether there was a danger that the judgment would not be satisfied, and whether the documents sought by the notice to produce were relevant to the fact in issue. The court found that there was a danger that the judgment would not be satisfied, given the defendants' failure to provide any security for the satisfaction of the judgment, and their misleading information regarding the status of the sale of one of the properties. The court also found that the documents sought by the notice to produce were relevant to the fact in issue, and that the defendants' failure to comply with the notice was a contempt of court.

The court granted the plaintiffs' application for a freezing order over the proceeds of the sale of the three properties, and also found the defendants in contempt of court for their failure to comply with the notice to produce. The court ordered the defendants to pay the costs of the proceedings, and made an order for the enforcement of the freezing order. The court also made an order for the defendants to pay the costs of the contempt proceedings. The court found that the defendants' failure to comply with the notice to produce was a deliberate and contumacious act, and that it was necessary to make an order for the enforcement of the notice to produce in order to uphold the authority of the court. The court noted that the defendants' failure to comply with the notice to produce was not an isolated incident, but part of a broader pattern of non-compliance with the court's orders.

Orders