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…

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 Woods v Woods

Details

AGLC: Woods v Woods [1999] NSWSC 584
Case: [1999] NSWSC 584
Decision Date: 2 June 1999

CaseChat Overview and Summary

Woods v Woods is a case involving the applicant, Woods, who sought an injunction against the respondent, also Woods, to prevent the respondent from disposing of or diminishing the value of a jointly owned property. The case was heard in the Family Court of Australia. The applicant sought an injunction to restrain the respondent from disposing of or diminishing the value of the jointly owned property. The respondent denied any wrongdoing and argued that the injunction was not necessary.

The primary legal issue before the court was whether the applicant had demonstrated sufficient grounds to warrant the grant of a Mareva injunction. This type of injunction is an equitable remedy used to prevent a party from disposing of assets that might be used to satisfy a potential judgment debt. The court had to consider the principles upon which such an injunction is granted, which include the need for an undertaking as to damages, the likelihood of success on the merits, and the presence of an element of secrecy or impropriety in the conduct of the respondent.

The court found that the applicant had not demonstrated the requisite element of secrecy or impropriety in the respondent's conduct. It was noted that the respondent had not acted in a secretive or dishonest manner. The court emphasised that the principles of equity require a certain degree of impropriety before such an injunction would be granted. Consequently, the court refused the application for the injunction.

The court made no orders in relation to the application for the injunction. The case serves as a reminder of the stringent requirements for obtaining a Mareva injunction and the need for the applicant to demonstrate not only a likelihood of success on the merits but also an element of impropriety on the part of the respondent.

Orders