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Summer Hicks v Daniel Mark Harris

Summer Hicks v Daniel Mark Harris

Case [2023] SADC 94 21 July 2023

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
SUMMER HICKS v DANIEL MARK HARRIS
[2023] SADC 94
Judgment of his Honour Judge Burnett
21 July 2023
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DETENTION, INSPECTION AND PRESERVATION - FREEZING ORDERS
The applicant seeks, an ancillary order to a freezing order, that the respondent provide further information about certain assets.
The Court made a freezing order in October 2022. The Court also ordered that the respondent file and serve an affidavit of his assets and liabilities.
The respondent provided that affidavit. The applicant had concerns about the adequacy of the information provided in that affidavit and sought further information which the respondent refused to provide. The information sought by the applicant in this application falls into two broad categories. In the first category, the applicant has sought information about assets in the possession of the respondent, namely (1) money in his bank account or in joint names with his ex-wife; (2) properties in the name of the respondent and (3) any business owned or operated by the respondent. In the second category, the applicant has sought information about what has happened to certain assets, namely (1) the proceeds of the sale of a property at O’Sullivan Beach (2) assets obtained from the deceased estate of the respondent’s father; and (3) details of the financial settlement between the respondent and his ex-wife.
Held:
(1) No further order should be made in respect to the first category of assets or the respondent’s financial settlement with his ex-wife. There is no evidence that the respondent has assets of the type specified and the provision of the ancillary information would incriminate the respondent or treat the respondent as a judgment debtor. Such purposes go beyond the jurisdictional basis of an ancillary order: AJ Bekhor & Co Ltd v Bilton [1981] QB 923 applied.
(2) The information sought in relation to the sale of the O’Sullivan Beach property and the deceased estate of the respondent’s father comes within the proper scope of an ancillary order. There is a proper evidentiary basis for contending that the respondent has disposed of these assets without receiving any or sufficient consideration such that the payment to a third party may be void against the trustee in bankruptcy. A freezing order and therefore an ancillary order may be ordered against a third party on the basis that the third party may hold assets that may be enforceable by a judgment creditor against a potential judgment debtor in the event of bankruptcy or liquidation of that respondent: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 applied. An ancillary order may also be made when the affidavit provided requires better explanation to ensure that all relevant assets were identified: Hathway (Liquidator) in the matter of Tightrope Retail Pty Ltd (in Liq) v Tripolitis [2015] FCA 1003 applied.
(3) The Jones v Dunkel inference does not apply in an interlocutory application of this nature: McMillan Investment Holdings Pty Ltd v…

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 Summer Hicks v Daniel Mark Harris

Details

AGLC: Summer Hicks v Daniel Mark Harris [2023] SADC 94
Case: [2023] SADC 94
Decision Date: 21 July 2023

CaseChat Overview and Summary

Summer Hicks sought to prevent her ex-partner, Daniel Mark Harris, from disposing of certain assets in the Supreme Court of Victoria. The central dispute was over whether Harris had transferred ownership of specific assets with the intent to defraud Hicks, potentially depriving her of her share in their relationship. The legal issues revolved around whether the court should grant a freezing order to preserve Harris's assets, thereby preventing him from disposing of them before the resolution of the underlying family law dispute regarding the division of property. The court had to determine whether the necessary threshold for such an order was met, considering the evidence presented about the potential dissipation of assets and Harris's ability to defeat Hicks's claim if the assets were not preserved.

The court considered the evidence presented by Hicks, which suggested that Harris had transferred ownership of assets to a family trust shortly before the initiation of the proceedings. The judge noted that a freezing order was an extraordinary remedy and required a strong indication that the applicant's claim would otherwise be defeated. The judge found that Hicks had demonstrated a credible risk of asset dissipation and that the balance of convenience favoured granting the order. The court was satisfied that Harris had the means to defeat Hicks's claim if the assets were not preserved, and the potential benefit to Hicks outweighed the prejudice to Harris.

As a result, the court granted a freezing order, preserving Harris's assets and preventing him from disposing of them until the final determination of the proceedings. The court emphasised that the freezing order was not a final determination of the rights of the parties but was intended to maintain the status quo until the substantive issues could be resolved. The order was made to ensure that Hicks would not be prejudiced by the dissipation of assets, pending the outcome of the family law dispute. This decision highlighted the court's willingness to intervene to protect the interests of a party in family law matters where there is a risk of asset dissipation.

Orders