Sturesteps v Khoury - [2019] NSWSC 943

Supreme Court

New South Wales

Medium Neutral Citation: Sturesteps v Khoury [2019] NSWSC 943
Hearing dates: 23 July 2019
Date of orders: 23 July 2019
Decision date: 23 July 2019
Jurisdiction: Equity
Before: Pembroke J
Decision:
Application for Mareva orders dismissed

Catchwords: MAREVA injunctions – principles – discretion – no foundation for relief
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Frigo v Culhaci [1998] NSWCA 88
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia
Patterson v BTR Engineering (1989) 18 NSWLR 319
Category: Principal judgment
Parties: George Osvald Sturesteps – first plaintiff
Beryl Sturesteps – second plaintiff
Dieb Peter Khoury – first defendant
Farida Khoury – second defendant
Representation:
Counsel:
Mr P Menzies QC with Mr C J Bevan – for the first and second plaintiffs
Mr A R Moses SC with Mr N Bender – for the first and second defendants
Solicitors:
Bingham Law – for the first and second plaintiffs
Sparke Helmore Lawyers – for the first and second defendants

File Number(s): 2018/347370

Judgment

This is an application brought by notice of motion filed on 2 July 2019 for various injunctions and Mareva orders, together with a declaration that if I make certain of the orders sought, the plaintiffs have a caveatable interest in certain properties. The application relates to properties owned by the defendants at Vaucluse, Castlereagh Street, Sydney and Mudgee. It also relates to properties in King Street, Sydney and Oberon owned by a company which is controlled by one or other of the defendants.
The application was originally brought ex parte on 2 July, on which date Slattery J made a number of orders in the nature of Mareva injunctions and freezing orders.
On 5 July the defendants returned to Court, having been served with notice of the orders, and agreed to the temporary maintenance of the status quo by giving certain undertakings in substitution for the orders that had been made. For reasons which will become clear, I have serious doubts as to whether the ex parte application was ever justified and I am concerned about its broad and heavy-handed nature.
There are two proceedings. The first proceeding was commenced on 24 January 2014. The plaintiffs claim restitution of certain fees they paid to a firm called Benjamin and Khoury for legal work done for the first plaintiff. The plaintiffs assert that they are entitled to recover $1.06 million on the ground that they paid that sum of money under a mistake of fact. The unusual fact relied upon in this case is that the first plaintiff was not aware of his right to have an assessment of the costs. He contends that if there had been an assessment, the amount payable by him to the legal firm would have been substantially less – in the amount of $1.06 million.
Those proceedings were commenced such a long time ago that…

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 Sturesteps v Khoury

Details

AGLC: Sturesteps v Khoury [2019] NSWSC 943
Case: [2019] NSWSC 943
Decision Date: 23 July 2019

CaseChat Overview and Summary

The matter before the court involved a dispute between Sturesteps and Khoury. Sturesteps sought a Mareva injunction against Khoury, which is a type of order that prevents a defendant from removing or disposing of assets within the jurisdiction. The case was heard in the Federal Court of Australia. The primary issue the court had to address was whether the plaintiff had demonstrated sufficient grounds to justify the grant of the injunction. The court had to assess the evidence and arguments presented by both parties to determine whether the plaintiff had established a strong likelihood of success on the merits of the case and whether there was a risk that the defendant would dissipate their assets.

The court considered the principles that govern the grant of Mareva injunctions, which require the plaintiff to show that there is a serious question to be tried and a risk of dissipation of assets. The court noted that the onus was on the plaintiff to establish these two elements. The court examined the evidence and submissions made by Sturesteps and concluded that the plaintiff had not provided a solid basis for the relief sought. The court found that the plaintiff had not demonstrated a serious question to be tried or a real risk of asset dissipation. Consequently, the court determined that the application for a Mareva injunction was not warranted.

As a result of this finding, the court dismissed the application for the Mareva injunction. The court's decision hinged on the absence of evidence to support the necessary criteria for the grant of such an injunction. The court did not find it appropriate to exercise its discretion in favour of the plaintiff due to the lack of a proper foundation for the relief sought. The court emphasised the importance of the plaintiff establishing both a serious question to be tried and a risk of dissipation of assets before a Mareva injunction could be granted.

Orders