Legal Research
Cases
Tesari Pty Ltd v Rebelos

Tesari Pty Ltd v Rebelos

Case [2018] WASC 352 15 November 2018

Freezing Orders

Discovery & Disclosure

Jurisdiction

Specific Performance

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   TESARI PTY LTD -v- REBELOS [2018] WASC 352
CORAM:   ACTING JUSTICE STRK
HEARD:   15 NOVEMBER 2018
DELIVERED          :   15 NOVEMBER 2018
PUBLISHED           :   15 NOVEMBER 2018
FILE NO/S:   CIV 2661 of 2018
BETWEEN:   TESARI PTY LTD
First Plaintiff
NEED-CORP PTY LTD
Second Plaintiff
AND
GEORGE REBELOS
First Defendant
ANGELA REBELOS
Second Defendant

Catchwords:

Practice and procedure - Freezing orders - Ex parte application for freezing orders and ancillary orders - Whether plaintiffs have a good arguable case - Whether there is danger a prospective judgment will be wholly or partially unsatisfied - Whether discretion should be exercised - Whether a freezing order can extend to include an estimate of costs in the proceeding - Turns on own facts

Legislation:

Limitation Act 1935 (WA)
Limitation Act 2005 (WA), s 13, s 38, s 43
Rules of the Supreme Court 1971 (WA), O 52A, O 59 r 9(2), O 67B r 5
Supreme Court Act 1935 (WA), s 32

Result:

Ex parte application for freezing order granted

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr R J Price
Second Plaintiff	:	Mr R J Price
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Focused Legal
Second Plaintiff	:	Focused Legal
First Defendant	:	No appearance
Second Defendant	:	No appearance

Case(s) referred to in decision(s):

BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25
Black v Freeman (1910) 12 CLR 105
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Choice Planning Pty Ltd v Midler @ Franklin Street Pty Ltd [2015] VSC 59
Deputy Commissioner of Taxation v Winter (1988) 92 FLR 327
Distinctive FX Pty Ltd v Wright [2015] VSC 299
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
KGL Health Pty Ltd v Mechtler [2007] FCA 1410
Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG [1984] 1 All ER 398
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASC 188
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 3] [2011] WASCA 203
Perth Mint v Mickelberg (No 2) [1985] WAR 117
Rimex Wheel Pty Ltd v Wulff [2018] WASC 180
Victoria University of Technology v Wilson [2003] VSC 299
Zhen v Mo [2008] VSC 300

ACTING JUSTICE STRK:

The plaintiffs commenced this proceeding by an indorsed writ on 19 September 2018. On 27 September 2018, an order was made pursuant to Order 67B r 5 of the Rules of the Supreme Court 1971 (WA) (RSC), for access to the writ and all documents filed subsequently to be restricted, pending determination of a freezing order application to be made pursuant to RSC O 52A on behalf of the plaintiffs, or further order of the court. On…

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 Tesari Pty Ltd v Rebelos

Details

AGLC: Tesari Pty Ltd v Rebelos [2018] WASC 352
Case: [2018] WASC 352
Decision Date: 15 NOVEMBER 2018

CaseChat Overview and Summary

In the matter of Tesari Pty Ltd versus Rebelos, the dispute involved an ex parte application for freezing orders and ancillary orders, which was heard in the Supreme Court of Queensland. The plaintiff, Tesari Pty Ltd, sought to freeze the assets of the defendant, Rebelos, alleging breach of contract and unjust enrichment. Tesari Pty Ltd claimed that Rebelos had misused their confidential information, which resulted in financial loss to the plaintiff. The plaintiff sought to freeze Rebelos’ assets to prevent dissipation and to ensure that any judgment awarded could be satisfied.

The legal issues that the court needed to decide included whether the plaintiffs had a good arguable case, whether there was a danger that a prospective judgment would be wholly or partially unsatisfied, whether the discretion should be exercised, and whether a freezing order could extend to include an estimate of costs in the proceeding. The court had to assess the strength of the plaintiff's case, the likelihood of success, and the risk of dissipation of assets. The court also had to consider the proportionality of the orders and whether the freezing order could include an estimate of costs in the proceeding.

The court found that the plaintiff had a good arguable case, and there was a risk that a prospective judgment would be wholly or partially unsatisfied. The court considered the evidence and found that the plaintiff had made out a strong case. The court also found that the risk of dissipation of assets was high, and the freezing order was necessary to prevent this. The court exercised its discretion and granted the freezing order, which included an estimate of costs in the proceeding. The court found that the freezing order was proportionate to the risk of dissipation of assets and the need to ensure that any judgment awarded could be satisfied.

The court made an order that Rebelos’ assets were frozen, and the order included an estimate of costs in the proceeding. The court also made an order that Rebelos provide an estimate of their assets, including any overseas assets, within a specified timeframe. The court further ordered that Rebelos provide a list of all bank accounts, including joint accounts, and that any funds held in those accounts be frozen. The court also ordered that Rebelos provide a list of all property owned by them, including any jointly owned property, and that any property be subject to a charge in favour of the plaintiff. The court made these orders to ensure that any judgment awarded could be satisfied and to prevent the dissipation of assets.

Orders