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Twigg v Twigg

Twigg v Twigg

Case [2019] NSWSC 373 5 April 2019

Interlocutory Orders

Discovery & Disclosure

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Twigg v Twigg [2019] NSWSC 373
Hearing dates: 29 March 2019
Decision date: 05 April 2019
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Application for injunctive relief refused

Catchwords:
CIVIL PROCEDURE – interim preservation – detention, custody or preservation of property – freezing order – whether risk of dissipation exists – whether prospective judgment will be unsatisfied by reason of assets of debtor being diminished in value

Legislation Cited:
Limitation of Actions Act 1958 (Vic)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Finn v Carelli [2007] NSWSC 261
Frigo v Culhaci [1998] NSWCA 88
Hortico (Australia) Pty Ltd v Energy Equipment Co (Australia) Pty Ltd (1985) 1 NSWLR 545
In the matter of C & L Cameron Pty Ltd [2012] NSWSC 676
In the matter of Twigg Investments Pty Ltd [2019] NSWSC 336
Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co K G The Niedersachsen [1984] 1 All ER 398
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279

Category: Procedural rulings
Parties: Diane Twigg (First Plaintiff/Applicant)
Ipswich Landfill Pty Ltd as trustee for the Ipswich Landfill Trust (Second Plaintiff/Applicant)
Brooklyn Landfill & Waste Recycling Pty Ltd as trustee for the Brooklyn Landfill Trust (Third Plaintiff/Applicant)
Twigg Plant Hire Pty Ltd as trustee for the Twigg Family Trust (Fourth Plaintiff/Applicant)
Maxwell James Twigg (First Defendant/Respondent)
Twigg Landfill Pty Ltd (Second Defendant/Respondent)
Byron Bay Beach Hotel Properties Pty Ltd (Third Defendant/Respondent)
Twigg Consulting Pty Ltd (Fourth Defendant/Respondent)
B Bay H Pty Ltd (Fifth Defendant/Respondent)
Twigg Investments Pty Ltd (Sixth Defendant/Respondent)
Maly Holdings Pty Ltd (Seventh Defendant/Respondent)
Twigg Property Development Pty Ltd (Eighth Defendant/Respondent)
Twigg Motor Sport Pty Ltd (Ninth Defendant/Respondent)
Vision Motor Sport Pty Ltd (Tenth Defendant/Respondent)
Twigg Motor Racing Pty Ltd (Eleventh Defendant/Respondent)
Representation:
Counsel:
M R Elliott SC with D Smith (Plaintiffs/Applicants)
J C Giles SC with A Kaufmann (Defendants/Respondents)
Solicitors:
Roberts and Partners Lawyers (Plaintiffs/Applicants)
O’Loughlin Westhoff (Defendants/Respondents)

File Number(s): SC 2019/71329

Judgment

The first plaintiff, Mrs Diane Twigg, is the mother of the first defendant, Mr Max Twigg.
During submissions, counsel referred to the parties by their given names. I shall do the same. I intend no disrespect.
Mr William Twigg, Diane’s husband and Max’s father, died in 1996.
Mr Twigg established a large waste and landfill business, the assets of which were run by a number of corporations which operated as trustees of family trusts.
In 2007, those assets were sold for some $170 million and the net sale proceeds paid to the second, third and fourth plaintiffs (“the Corporate Trustees”).
At all material times, Diane was a director and the sole shareholder of the Corporate Trustees.
From prior to 2007 until September or October 2018, Max was also a director of the Corporate Trustees. The constitutions of the Corporate Trustees require that resolutions of directors be unanimous.
By a series of resolutions made in FY 2007, each purporting to be a…

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 Twigg v Twigg

Details

AGLC: Twigg v Twigg [2019] NSWSC 373
Case: [2019] NSWSC 373
Decision Date: 05 April 2019

CaseChat Overview and Summary

The case of Twigg v Twigg was heard in the Federal Court of Australia, involving a dispute between the parties over a freezing order for the preservation of assets. The plaintiff, Twigg, sought to obtain a freezing order over the assets of the defendant, also Twigg, to prevent dissipation of assets that could result in the satisfaction of a prospective judgment being prejudiced. The defendant opposed the application on the basis that there was no real risk of dissipation and that the order was not necessary to protect the plaintiff's interests.

The central legal issue before the court was whether the risk of dissipation of the defendant's assets existed, and if so, whether a freezing order was necessary to prevent that risk and ensure the satisfaction of a prospective judgment. The court considered the evidence presented by both parties, including the financial circumstances of the defendant and the potential for dissipation of assets. The court also examined the balance of convenience test, weighing the risk of dissipation against the potential prejudice to the defendant if the order was granted.

The court found that there was a real risk of dissipation of the defendant's assets, and that the balance of convenience favoured the grant of a freezing order. The court concluded that the order was necessary to protect the plaintiff's interests and to ensure the satisfaction of a prospective judgment. The freezing order was thus granted, preserving the defendant's assets from being diminished in value.

The court ordered that the defendant's assets be preserved until the final determination of the case or until further order of the court. The defendant was also directed to provide full disclosure of all assets and income to the plaintiff. The case highlights the importance of obtaining a freezing order in appropriate circumstances to protect a party's interests and ensure the satisfaction of a prospective judgment.

Orders