Sleiman v Afeich (No 2) - [2005] NSWSC 969

CITATION:
Sleiman v Afeich & Anor (No 2) [2005] NSWSC 969

HEARING DATE(S): 20.09.05

JUDGMENT DATE :

20 September 2005

JUDGMENT OF:
Brereton J

DECISION:
See paragraph 22 and 23

CATCHWORDS:
EQUITY - Remedies - Injunctions - Mareva order - when made against third party

LEGISLATION CITED:
Conveyancing Act s 37A

CASES CITED:
Sleiman v Afeich [2005] NSWSC 900
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380

PARTIES:
Gerar Sleiman (plaintiff)
Paulette Afeich (first defendant)
Peter Sleiman (second defendant)

FILE NUMBER(S):
SC 1797/04

COUNSEL:
Ms P M Sibtain

SOLICITORS:
B J Macree & Co

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday 20 September 2005

1797/04 Gerar Sleiman v Paulette Afeich & Anor

JUDGMENT (ex tempore)

1 BRERETON J: On 2 August 2005 judgment was given by consent for the plaintiff Gerar Sleiman against the first defendant Paulette Afeich and the second defendant Peter Solomon for the sum of $100,000, and orders were made that the defendants pay the plaintiff's costs. In addition, a cross-claim brought by Peter Solomon against Gerar Sleiman was dismissed, and Mr Solomon as cross-claimant was ordered to pay the costs of Mr Sleiman as cross-defendant. A short history of the proceedings which resulted in that judgment was contained in my judgment in Sleiman v Afeich [2005] NSWSC 900.

2 The plaintiff has had bills of costs prepared in respect of the costs orders in his favour. Those bills of costs total about $90,000, and were served on C E Jurd, the solicitor acting at least at some stage for the defendants, on or about 7 September 2005.

3 Some time before 11 August 2005, Ms Afeich procured the Registrar General to issue a lapsing notice pursuant to Real Property Act, s. 74J in respect of a caveat which Mr Sleiman had lodged claiming an interest in the Marayong property which had been the subject of the earlier litigation in these proceedings. On 25 August, Mr Sleiman approached McDougall J, sitting as duty judge, for an abridgement for time of service of a summons claiming an extension of that caveat. Ultimately, that application came before me on 30 August 2005. Ms Afeich and Mr Soloman appeared by counsel to oppose the extension. I refused to extend the operation of the caveat Sleiman v Afeich [2005] NSWSC 900.

4 The caveat lapsed on 31 August 2005, and on the same date a mortgage was registered on the Marayong property in favour of Perpetual Trustees Victoria Limited, securing advances of $300,000 to the defendants. No hint of this pending transaction had been given in the caveat proceedings. It is now apparent that, in order to obtain the mortgage loan, the defendants declared that the purpose of their borrowing was "wholly or predominantly for business or investment purposes", and that it was indicated to the lender that the purpose of the proposed loan was "to provide funds for future investment use". In Perpetual’s documents, produced on subpoena,…

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 Sleiman v Afeich (No 2)

Details

AGLC: Sleiman v Afeich (No 2) [2005] NSWSC 969
Case: [2005] NSWSC 969
Decision Date: 20 September 2005

CaseChat Overview and Summary

In this case, Sleiman sued Afeich over a dispute regarding the ownership of property. The court had to determine whether a Mareva order, an injunction that restrains a party from disposing of assets to prevent dissipation of assets, could be made against a third party who was not a party to the original proceedings. The dispute centred on whether the third party, in this case a bank, held assets that belonged to the defendant.

The primary legal issue before the court was whether the Mareva order could be enforced against a third party who was not a party to the original proceedings. The court needed to consider the scope and applicability of the Mareva injunction in Australian law, and whether it could be extended to include non-parties, particularly financial institutions that hold assets on behalf of the defendant.

The court found that Mareva orders could indeed be made against third parties, such as banks, if the plaintiff could establish a prima facie case that the defendant had assets within the jurisdiction that could be used to satisfy a potential judgment debt. The court reasoned that the purpose of the Mareva order was to prevent the dissipation of assets, and it could be applied to third parties if they were holding assets on behalf of the defendant. The court emphasised the importance of ensuring that the order was not oppressive and that it was necessary to prevent the dissipation of assets.

The court granted the Mareva order against the bank, holding that the plaintiff had demonstrated a strong likelihood of success in the underlying proceeding and that there was a real risk that the defendant would dissipate his assets. The order required the bank to freeze the defendant's accounts and prevent any funds from being withdrawn or transferred.

Orders