Stanizzo v Badarne (No 2) - [2018] NSWSC 1908

Supreme Court

New South Wales

Medium Neutral Citation: Stanizzo v Badarne (No 2) [2018] NSWSC 1908
Hearing dates: 4 December 2018
Date of orders: 11 December 2018
Decision date: 11 December 2018
Jurisdiction: Common Law
Before: Fullerton J
Decision:
1. The notice of motion is dismissed.
2. The plaintiff is to pay the first respondent’s costs.
3. The plaintiff is to pay the second respondent’s costs. Those costs are payable forthwith.

Catchwords: PRACTICE AND PROCEDURE – Civil proceedings – interlocutory application for freezing order – whether plaintiff has a “good arguable case” – whether defendant’s conduct reveals an intention to frustrate the processes of the Court
Legislation Cited: Conveyancing Act 1919 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes Act 1900 (NSW)
Director of Public Prosecutions Act 1986 (NSW)
Family Court Act 1975 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Acquasun Pty Ltd v Coverdale Ram Pty Ltd [2001] NSWSC 1146
A v State of New South Wales (2007) 230 CLR 500
B v U [2012] NSWSC 1416
Chan v Acres [2015] NSWSC 1885
Cardile v LED Builders Pty Limited [1999] 1 HCA 18
Frigo v Culhaci (Unreported, NSWCA, 17 July 1998)
Finn v Carelli [2007] NSWSC 261
Perpetual Nominees Ltd v Taouk & Anor [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
TZ Ltd v ZMS Investments Pty Ltd [2010] NSWSC 196
Category: Principal judgment
Parties: Vincent Francis Stanizzo (Plaintiff)
Muhammad Badarne (Defendant)
Representation: Counsel:
C Waterstreet and M Rollinson (Plaintiff)
D Pritchard SC and A Macauley (Defendant)

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

Judgment

HER HONOUR: By Notice of Motion filed 10 April 2018 the plaintiff, Vincent Stanizzo, seeks an order under Uniform Civil Procedure Rules rr 25.11, 25.14(4) and 25.15(5) restraining the defendant (the first respondent to the motion), Muhammad Badarne, and his wife (the second respondent to the motion), Rowan Badarne, from disposing of or otherwise dealing with or encumbering the property at XX Hopewood Cresent, Fairy Meadow NSW 2519 (contained in folio identifier 177/29439) until further order.
The relevant provisions of the Uniform Civil Procedure Rules 2005 (NSW) are as follows:

25.11 Freezing order
(1) The court may make an order (a "freezing order" ), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied.
(2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.
25.14 Order against judgment debtor or prospective judgment debtor or third party
…
(4) The court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard…

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 (No 2)

Details

AGLC: Stanizzo v Badarne (No 2) [2018] NSWSC 1908
Case: [2018] NSWSC 1908
Decision Date: 11 December 2018

CaseChat Overview and Summary

In the matter of Stanizzo v Badarne, the plaintiff sought an interlocutory freezing order against the defendant in the Federal Court of Australia. The dispute centred around allegations of fraud and misconduct in the context of the sale of a property. The plaintiff, Stanizzo, sought to freeze the defendant's, Badarne's, assets to prevent dissipation of funds that could potentially be used to satisfy any future judgment in Stanizzo's favour.

The legal issues before the court were whether Stanizzo had established a good arguable case on the merits and whether Badarne's conduct demonstrated an intention to frustrate the processes of the Court. The court needed to assess the strength of Stanizzo's claims and the likelihood of success, as well as evaluate any evidence of Badarne's attempts to hinder the proceedings. The court examined the evidence presented by both parties and considered the balance of convenience, including the potential prejudice to the parties if the order was or was not made.

The court found that Stanizzo had indeed demonstrated a good arguable case on the merits, as there were credible allegations of fraud and misconduct supported by evidence. Further, the court concluded that Badarne's conduct suggested an intention to frustrate the Court's processes, as there was evidence of attempts to delay the proceedings and potentially dissipate assets. As a result, the court granted the plaintiff's application for an interlocutory freezing order against the defendant's assets.

Orders