Stanizzo v Badarne - [2018] NSWSC 475

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Stanizzo v Badarne & Anor [2018] NSWSC 475
Hearing dates: 17 April 2018
Date of orders: 18 April 2018
Decision date: 18 April 2018
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [33]

Catchwords: PRACTICE AND PROCEDURE – Civil proceedings – Application for freezing order – Insufficient evidence of good arguable case – Where evidence did not address requirements of rules governing applications for freezing orders against third parties – Unexplained delay in bringing the application – Order refused
Legislation Cited: Conveyancing Act 1919 (NSW)
Family Law Act 1975 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: B v U [2012] NSWSC 1416
Bhushan Steel Ltd v Severstal Export GmbH [2012] NSWSC 583
Chan v Acres [2013] NSWSC 1597
Finn v Carelli [2007] NSWSC 261
Frigo v Culhaci (Court of Appeal (NSW), 17 July 1998, unrep)
Ninemia Maritime Corporation v Trave GmbH & Co KG (The Niedersachsen) [1984] 1 All ER 398
Perpetual Nominees Ltd v Taouk [2009] NSWSC 605
Re C & L Cameron Pty Ltd - GB Gazzana v Nadalan Enterprises Pty Ltd; AF Gazzana v Nadalan Enterprises Pty Ltd [2012] NSWSC 676
Category: Procedural and other rulings
Parties: Vincent Francis Stanizzo – Plaintiff
Muhammad Badarne – Defendant
Representation:
Counsel:
C Waterstreet and M Rollinson – Plaintiff
J R Young – Defendant
Solicitors:
Justice Lawyers – Plaintiff
Badarne Lawyers – Defendant

File Number(s): 2014/92425
Publication restriction: Nil

Judgment – ex tempore (revised)

Before the Court is a notice of motion filed on 10 April 2018 by the plaintiff which has been referred to me by the Registrar in my capacity as Duty Judge. The notice of motion seeks a number of orders, but for present purposes the focus is upon prayer 1 which is in the following terms:

"That a freezing order under UCPR 25.11 and 25.14 (4) and (5) be made restraining the Defendant and the First Respondent to the motion, Muhammad Badarne, and the Second Respondent to the motion, Rowan Badarne, by themselves their servants or agents from disposing of or otherwise dealing with or encumbering in any way the property at 86 Hopewood Crescent, Fairy Meadow, New South Wales being Folio Identifier No. 177/29439 until further order of the Court."

When the matter first came before me, counsel for the respondents to the motion (the first of whom is the defendant in these proceedings) sought an adjournment of the hearing of the motion on the basis that the second respondent (who is not a party to the proceedings and who is the wife of the first respondent) had been served only a few days ago, in circumstances where she is presently the legal owner of the property in question. Counsel informed me that he did not formally have instructions to appear for the second respondent, although he did not perceive that there would be any conflict in doing so. Counsel for the plaintiff did not object to an adjournment of the motion but made…

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 Stanizzo v Badarne

Details

AGLC: Stanizzo v Badarne [2018] NSWSC 475
Case: [2018] NSWSC 475
Decision Date: 18 April 2018

CaseChat Overview and Summary

The matter involved an application for a freezing order against a third party, Badarne, brought by Stanizzo. The application was made in the Federal Circuit Court and was part of ongoing civil proceedings. The primary dispute was whether sufficient evidence had been provided to justify the issuance of a freezing order against the third party, which would restrain Badarne from disposing of or dealing with his assets. The court had to consider whether Stanizzo had made out a good arguable case that the requirements of the rules governing such applications were met.

The central legal issue before the court was whether Stanizzo had provided adequate evidence to support the application for a freezing order against Badarne. The court examined whether Stanizzo's evidence met the threshold of demonstrating a good arguable case, as required by the relevant procedural rules. Additionally, the court considered the unexplained delay in bringing the application and whether this delay impacted the strength of the application. The court had to weigh these factors against the requirements set out in the rules and relevant legal precedents.

The court found that Stanizzo had not provided sufficient evidence to support the application for a freezing order. The evidence did not adequately address the specific requirements of the rules governing applications for freezing orders against third parties. Furthermore, the unexplained delay in bringing the application undermined the application's strength. Consequently, the court concluded that Stanizzo had not made out a good arguable case. As a result, the application for a freezing order was refused. The court emphasised that the evidence provided was insufficient to meet the necessary threshold, and the delay in bringing the application further weakened the application.

The court's decision was clear and final. The application for a freezing order against Badarne was refused due to the insufficient evidence and the unexplained delay in bringing the application. The court's judgment highlighted the importance of meeting the stringent requirements for such applications and the impact of procedural delays on the merits of the case.

Orders