Woods v Woods

[1999] NSWSC 584

Reported Decision: [1999] NSW ConvR 55-907

New South Wales

Supreme Court

CITATION:	Woods v Woods [1999] NSWSC 584
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	1973/97
HEARING DATE(S):	14, 27 & 28 May and 2 June 1999
JUDGMENT DATE:	2 June 1999
PARTIES :	Glenn Woods (P1) Marcia Woods (P2) Desre Clair Woods (D1) Richard Lee Woods (D2) Amanda Jane Woods (D3)
JUDGMENT OF:	Hamilton J

COUNSEL :	P P O'Loughlin (P1 & 2) Alex Radojev (D1-3)
SOLICITORS:	Clinch Neville Long (P1 & 2) Karageorge & Co (D1-3)
CATCHWORDS:	EQUITY [340] - Equitable remedies - Mareva injunctions - Other matters - Principles on which granted - Secretive sale of property.
CASES CITED:	Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
DECISION:	Injunctive relief granted.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 2 JUNE 1999

1973/97 GLENN WOODS & ANOR v DESRE CLAIR WOODS & ORS

JUDGMENT

His Honour:
1    Previously I have granted for short finite periods relief of a Mareva nature in these proceedings. The first defendant now moves for further relief of a Mareva nature. The facts of the matter shortly are that I have delivered a substantive judgment in these proceedings in which I have found that there is a binding contract between the first defendant and the plaintiffs under which the first defendant is entitled to continue to occupy a property in Waite Street Bateau Bay. The first defendant originally claimed specific performance of that contract but now seeks to argue that she should have damages in lieu of specific performance. This claim the plaintiffs resist on the basis that, although in the hearing that has taken place they denied the existence of the contract in defence of the claim for specific performance, they have not to date committed any breach of the contract which would sound in damages. That argument remains to be heard. The evidence before me shows that the total amount of the damages sought and the costs of the proceedings would not exceed but might approximate $200,000.

2 The plaintiffs own three pieces of real estate, the Waite Street property already mentioned, and two other properties, one at 10 Carbeen Road Wamberal, which is their home, and the other property at 224 Cresthaven Avenue Bateau Bay. This lastmentioned property they have proceeded to sell secretively at this stage of the proceedings, that contract originally being for settlement on 28 May 1999, but settlement having been delayed by reason of the injunctions that I have already granted. When I say they have done this secretively, the evidence shows that they have refused to give any information concerning their financial affairs, or the destination of the net proceeds of some $170,000 from the sale of the Cresthaven Avenue property. This refusal was recently repeated in Court on instructions by Mr Harry Woods, their solicitor. Furthermore, upon enquiry being made of the real estate agent through whom the property was being sold, he refused to disclose the solicitors acting on that sale (different from the solicitors acting in the proceedings), saying that he had specific instructions from the plaintiffs not to reveal this matter. 3 The result of my earlier grant of short term relief was to procure the filing in Court of an affidavit by the plaintiff Marcia Woods (the plaintiff Glenn Woods being said to be overseas on business), which set out that the net proceeds of the Cresthaven Avenue property, together with the equity in the Waite Street property, would exceed the greatest amount to which the first defendant would possibly be entitled, so that Mareva relief was unnecessary and unjustified. However, that affidavit disingenuously omitted to state the amount of the plaintiffs’ equity in the Carbeen Road property, which is their matrimonial home; the financial state of affairs of the company through which the plaintiff Glenn Woods conducts his business; and, most remarkably, the destination of the net proceeds of sale of the Cresthaven Avenue property or what was to be done with that money. The evidence at trial shows that the female plaintiff Marcia Woods is of Singapore origin, and that Glenn Woods travels frequently on business to Asia and has business dealings and connexions in Asia. Marcia Woods has a brother who is qualified as a lawyer in Singapore, although at present working as such in Sydney. The transmission of funds out of the country by people with these connexions is obviously an easier and more commonplace matter than in the case of people who do not have overseas connexions or dealings. 4 The criterion for Mareva relief laid down by Gleeson CJ in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321 is as follows:

“The remedy is discretionary, but it has been held that, in addition to any other considerations that may be relevant in the circumstances of a particular case, as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant’s absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied. …”

I am satisfied that both those matters are established in this case. The existence of the contract is established; costs estimated at $50,000 have already been ordered, and there is a prima facie case for damages. The plaintiffs' secretiveness and lack of candour set out above, viewed in all the circumstances of the case, lead the Court to the conclusion that there is a danger that the first defendant will not be able to have her judgment satisfied unless the Court takes steps by way of Mareva relief to ensure the continued availability of the funds flowing from the sale of the Cresthaven Avenue property. It is implicit in what I have said about the lack of evidence on the plaintiffs' behalf as to the destination of the proceeds of the Cresthaven Avenue property that they have shown no immediate need for the money or inconvenience flowing to them through its being immobilized at the moment.

5    I indicated in Court yesterday that I was prepared to grant Mareva relief requiring the $170,000 to be paid into Court, or placed in an account to abide the further order of the Court, and the parties approached me in private chambers yesterday afternoon with orders that had been agreed between them on this basis, and those orders were then made. I indicated that I should give reasons for those orders in Court this morning, which I have now done.

…oOo…

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