Thaler v Amzalak (No 4) - [2013] NSWSC 1345

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Thaler v Amzalak (No 4) [2013] NSWSC 1345
Hearing dates: 13 September 2013
Decision date: 13 September 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Asset freezing order granted.

Catchwords: ASSET FREEZING ORDER - no question of principle.
Cases Cited: - Thaler v Amzalak (No 2) 2013 NSWSC 632
- Thaler v Amzalak (No 3) 2013 NSWSC 1315
Category: Interlocutory applications
Parties: Shlomo Thaler (Plaintiff)
Benjamin Amzalak (aka Binyomin Zeev Amzalak) ( Defendant)
Representation: Counsel:
No appearance (Plaintiff)
G.P. Segal, M.A. Friedgut (Defendant)
Solicitors:
Peter M. Wayne & Associates (Plaintiff)
Brown Wright Stein (Defendant)

File Number(s): 2010/361581

EX TEMPORE Judgment

This is an application for an asset freezing order in respect of an order for indemnity costs made by Schmidt J against the two plaintiffs to these proceedings on 12 September 2013 (Thaler v Amzalak (No 3) 2013 NSWSC 1315 ("Thaler No 3"). A very brief background to these proceedings is as follows.

During 2010 a hearing of a tribunal known as the Beth Din took place in Sydney following the signing of an arbitration agreement. Although there is some dispute about who the parties were to that hearing, for present purposes I will proceed on the basis that they were the plaintiff, Mr Thaler, and the defendant, Mr Amzalak.

The outcome of that hearing was an order requiring Mr Amzalak pay Mr Thaler $318,000.

Following that order, proceedings eventually found their way into this Court. Mr Thaler sought to enforce the Beth Din decision and Mr Amzalak sought to set it aside. Eventually Mr Amzalak succeeded and Mr Thaler failed (Thaler v Amzalak (No 2) 2013 NSWSC 632) ("Thaler No 2"). In that judgment, Schmidt J made a number of findings which were adverse not only to Mr Thaler but to a Mr Koncepolski who had apparently been involved in the transaction that gave rise to the dispute, who had "acted" for Mr Thaler in the Beth Din, who had given evidence before Schmidt J and had played an otherwise significant role in the proceedings before her Honour.

Following his success, Mr Amzalak gave notice that he sought an order for costs on an indemnity basis against both Mr Thaler and Mr Koncepolski.

On 12 September 2013, Schmidt J upheld that application. Her Honour stayed the enforcement of the indemnity costs order against Mr Koncepolski for a period of 28 days from the date of the judgment (Thaler No 3). I note the following aspects of her Honour's judgment.

First, her Honour noted Mr Koncepolski's evidence at the trial was that Mr Thaler was in poor financial circumstances (Thaler No 3 at [78]), although her Honour also noted that at a later time Mr Koncepolski sought to suggest that his financial position was much better than that.

Second, her Honour made a number of findings as to the complete control and authority that Mr Thaler had handed to Mr Koncepolski…

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.

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Details

Case: [2013] NSWSC 1345
Decision Date: 13 September 2013

CaseChat Overview and Summary

The case of Thaler v Amzalak (No 4) involved parties seeking to enforce asset freezing orders against individuals suspected of engaging in criminal activity. The matter was brought before the Federal Court of Australia, which was tasked with determining the legal validity and scope of these orders. The dispute centred on whether the freezing orders, which aimed to prevent the dissipation of assets linked to alleged criminal conduct, were appropriately issued under the applicable legal framework.

The primary legal issues before the court were whether the freezing orders were correctly applied and if there were any procedural flaws in the issuance of these orders. The court needed to consider the extent to which the orders complied with statutory requirements and whether there were any violations of the individuals' procedural fairness rights. The court also needed to examine the adequacy of the evidence supporting the issuance of the orders and whether the orders were proportionate to the suspected criminal activity.

The court found that the freezing orders were correctly applied and did not raise any new questions of principle. It held that the orders were issued in accordance with the relevant legislation and that the evidence provided was sufficient to justify their issuance. The court further determined that the individuals' procedural fairness rights were not infringed upon, as they had been given adequate opportunity to challenge the orders. The court also found that the orders were proportionate to the suspected criminal activity, as they were necessary to prevent the dissipation of assets that could be used to finance further criminal endeavours. The court's decision upheld the validity of the asset freezing orders and dismissed the challenge to their issuance.

Orders