Tomasetti v Brailey

In *Tomasetti v Brailey*, the appellant sought a Mareva order (freezing order) from the Court of Appeal pending the hearing of their appeal against a decision of the primary judge. The respondents were the original plaintiffs in the proceedings.

The central legal issue before the Court of Appeal was whether it possessed the power to grant a Mareva order under UCPR 25.14, and if so, what considerations applied when an appellant, having been unsuccessful at trial, sought such an order to preserve assets pending their appeal.

Campbell JA considered the principles governing the grant of Mareva orders, particularly in the context of an appeal. His Honour noted that the power to grant such orders exists under UCPR 25.14. However, the court found that the appellant had not demonstrated a sufficient risk of dissipation of assets. The refusal by the respondents to give an undertaking regarding their assets was not, in itself, evidence of an actual or threatened diminution of those assets. Consequently, the court determined that the criteria for granting a Mareva order were not met.

The Notice of Motion filed by the applicants was dismissed, and they were ordered to pay the costs of the respondents in relation to that motion, as well as the costs of an earlier application made on 22 and 23 December 2011.