Wilden v Jennings (no 2)

[2022] NSWDC 237

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wilden v Jennings (no 2) [2022] NSWDC 237

Hearing dates:

1, 7 & 14 June 2022

Date of orders:

28 June 2022

Decision date:

28 June 2022

Jurisdiction:

Civil

Before:

Wilson SC DCJ

Decision:

(1) the Defendant’s application to further vary the Penal Notice is refused;

(2) the Defendant is to pay the Plaintiff’s costs of this application;

(3) in the event that the Defendant wishes to be heard against the order concerning costs, his solicitor is to notify my Associate and the Plaintiff’s solicitor within 48 hours of entering these orders.

Catchwords:

Freezing Order – Defendant seeking to vary Penal Notice so as to encumber assets to obtain funds for legal expenses – Where Defendant transferred majority of his assets to former partner.

Cases Cited:

Bindari Beef Pty Ltd v Chinatex (Australia) Pty Ltd [2018] NSWSC 57

Break Fast Investments Pty Ltd v Gravity VenturesPty Ltd [2013] VSC 89

Deputy Commissioner of Taxation v Bollands [2012] FCA 1050

Goumas v McIntosh [2002] NSWSC 713

Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2006] NSWSC 317

Category:

Consequential orders

Parties:

Ms Kirra Wilden
Mr Michael Jennings

Representation:

Counsel:
Ms L Beange (Plaintiff)
Mr J Sleight (Defendant)

Solicitors:
Ms M de Luca-Leonard (Plaintiff)
Mr G Azzi (Defendant)

File Number(s):

2020/00059460

Publication restriction:

none

Judgment

Introduction

1. Pursuant to liberty to apply granted to the parties, the Defendant arranged for this matter to be listed before me again on 1 June 2022. The Defendant sought to vary the terms of a Penal Notice following orders being made by consent under UCPR 25.11 (the Original Freezing Order) to allow him to encumber his assets to borrow funds for legal fees.

2. The Original Freezing Order was made on 10 December 2021 and subsequently varied again by consent on 10 February 2022. Initially, the Defendant was permitted to incur a debt for the payment of legal fees in an amount not exceeding $20,000.00 (Schedule D Clause (1)(c)). There was also an allowance for ordinary living expenses.

3. On 30 March 2022, the Penal Notice was varied by consent permitting the Defendant to enter into a debt of up to $125,000.00 plus GST in order to prosecute an appeal in respect of the judgment of this court. The legal representatives of the Defendant did not ask to vary the clause which prevented the Defendant from encumbering “any real property assets or any interest in any real property assets held by him to the unencumbered value of $1,200,000.00” (Schedule D Clause (1)(a)).

4. This is the first occasion on which the Defendant seeks to further encumber his remaining assets. It is alleged that it is necessary for him to provide security to his former partner, Ms Harris, in order for her to release $165,000.00.

5. In the period of 15 February 2020 to 3 September 2021 the Defendant sold three investment properties and paid the proceeds, exceeding $1,600,000.00 to Ms Harris. Save for a payment of $620,000.00 on…