Sivonen v Smith - [2019] NSWSC 1794

Supreme Court

New South Wales

Medium Neutral Citation: Sivonen v Smith [2019] NSWSC 1794
Hearing dates: 5 December 2019
Date of orders: 05 December 2019
Decision date: 05 December 2019
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) The summons is dismissed.
(2) The plaintiff pay the defendant’s costs.

Catchwords: CIVIL PROCEDURE — interim preservation — freezing orders — requirements to be met before order made — no evidence of likely attempt by defendant to dispose of assets in order to defeat any potential judgment — summons dismissed
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 25.11
Cases Cited: Frigo v Culhaci (Court of Appeal (NSW), 17 July 2019 unrep)
Lake v Crawford (No 2) [2010] NSWSC 419
Re C & L Cameron Pty Ltd - GB Gazzana v Nadalan Enterprises Pty Ltd [2012] NSWSC 676
Category: Procedural and other rulings
Parties: Kari Mikael Sivonen (Plaintiff)
Peter Samuel Smith (Defendant)
Representation:
Counsel:
JA Hillier (Plaintiff)
T Buterin (Defendant)
Solicitors:
Russell McLelland Brown Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2019/374998
Publication restriction: None

REVISED EX TEMPORE Judgment

By way of a summons originally filed in court on 28 November 2019, but filed with the Registry on 3 December 2019, the plaintiff seeks a freezing order pursuant to rule 25.11 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) in the form proposed, which is annexed to the summons.
The order sought by the plaintiff is essentially that the defendant not remove from Australia, or any way dispose of, deal with or diminish the value of his assets up to the unencumbered value of $1 million.
For the purposes of the order, the plaintiff includes three properties, the details of which are noted in the proposed orders. There was some reference to a fourth property being a property owned by a Peter Samuel Smith at Moree Plains as referred to in the National Property Ownership Report annexed to the affidavit of James Leslie Watt, the plaintiff’s solicitor, dated 3 December 2019.
Bearing in mind the possibility that there may be more than one Peter Samuel Smith in Australia, Ms Hillier appropriately did not press the proposition that I should find that the defendant had not disclosed all of his assets for the purposes of this application.
Mr Buterin, who appears for the defendant, provided some information about the defendant's knowledge of that property from the bar table but, as I said to both counsel, I would not be drawing any inference from the National Property Ownership Report either way.
The plaintiff sustained injuries in an accident on 2 March 2019 at a property at Hancocks Creek Road, Wandandian, which he says was owned by the defendant. He says that he had attended at the property for the purposes of collecting logs and at the time the defendant was in the process of clearing trees. Whilst he was on the defendant's property measuring logs, the defendant arrived driving his excavator. The defendant began to use a claw instrument on the…

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.

Continue reading Sivonen v Smith

Details

AGLC: Sivonen v Smith [2019] NSWSC 1794
Case: [2019] NSWSC 1794
Decision Date: 05 December 2019

CaseChat Overview and Summary

In the Federal Court of Australia, Sivonen filed a claim against Smith seeking an interim preservation order, specifically a freezing order, to prevent Smith from disposing of assets that might be used to satisfy a potential judgment in Sivonen's favour. The court was tasked with determining whether the criteria for such an order had been met, primarily focusing on whether there was evidence that Smith was likely to dispose of assets to defeat a future judgment. Smith argued against the application, asserting that there was no such evidence presented by Sivonen.

The primary issue before the court was whether Sivonen had provided sufficient evidence to meet the threshold for granting a freezing order. The court considered the necessity to demonstrate a real risk of asset dissipation and whether such a risk was imminent. The court found that Sivonen had not provided any evidence indicating that Smith was likely to dispose of assets to avoid satisfying a judgment. Without this crucial evidence, the court determined that the balance of convenience did not favour making the order.

The court concluded that Sivonen had not discharged the onus of proof necessary for the grant of a freezing order. It held that the absence of evidence showing a likely attempt by Smith to dispose of assets meant that the prerequisites for such an order were not satisfied. Consequently, the summons for the freezing order was dismissed. The court emphasised the importance of meeting the stringent criteria for interim preservation orders to ensure that they are not granted lightly, particularly in the absence of compelling evidence of asset dissipation.

Orders