FINN KAYAKS PTY LTD -v- DAWN HARWOOD [2013] WASC 339

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 339
Case No:	CIV:2510/2012	Heard:	12 & 13 AUGUST 2013
Coram:	PRITCHARD J	Delivered:	13/08/13
No of pages:	12	Judgment Part:	1 of 1
Result:	Freezing order granted
Category:	B
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Parties:	FINN KAYAKS PTY LTD DAWN HARWOOD
Catchwords:	Application for a freezing order pursuant to O 52A of the Rules of the Supreme Court 1971 (WA) Whether there exists a danger that a prospective judgment would be unsatisfied Whether the balance of convenience favours the grant of a freezing order
Legislation:	Rules of the Supreme Court 1971 (WA)
Case References:	BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 3) [2013] WASC 239 Mitchell v Saengjan (1994) 117 FLR 273 Mort v Woolf [2002] VSC 503 Patterson v BTR Engineering (Australia) Ltd (1989) 18 NSWLR 319 Uniflex (Australia) Pty Ltd v Hanneybel (Unreported, WASC, Library No 980465, 17 August 1998) Victoria University of Technology v Wilson [2003] VSC 299

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : FINN KAYAKS PTY LTD -v- DAWN HARWOOD [2013] WASC 339 CORAM : PRITCHARD J HEARD : 12 & 13 AUGUST 2013 DELIVERED : 13 AUGUST 2013 FILE NO/S : CIV 2510 of 2012 BETWEEN : FINN KAYAKS PTY LTD

Plaintiff

AND

DAWN HARWOOD

Defendant

Catchwords:

Application for a freezing order pursuant to O 52A of the Rules of the Supreme Court 1971 (WA) - Whether there exists a danger that a prospective judgment would be unsatisfied - Whether the balance of convenience favours the grant of a freezing order

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Freezing order granted

Category: B

Representation:

Counsel:

Plaintiff : Mr F A Robertson

Defendant : Ms F F Xue

Solicitors:

Plaintiff : CS Legal

Defendant : Gadens Lawyers

Cases referred to in judgment:

BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 3) [2013] WASC 239
Mitchell v Saengjan (1994) 117 FLR 273
Mort v Woolf [2002] VSC 503
Patterson v BTR Engineering (Australia) Ltd (1989) 18 NSWLR 319
Uniflex (Australia) Pty Ltd v Hanneybel (Unreported, WASC, Library No 980465, 17 August 1998)
Victoria University of Technology v Wilson [2003] VSC 299

(This judgment was delivered extemporaneously on 13 August 2013 and has been edited from the transcript.)

1 PRITCHARD J: The plaintiff has brought an action against the defendant seeking orders which include:

(i) a declaration that the defendant holds on trust for the plaintiff property and money which the plaintiff alleges was wrongfully taken or diverted from it, and proceeds gained by the defendant from the sale or disposal of the plaintiff's property;

(ii) damages for alleged conversion of the plaintiff's property by the defendant;

(iii) equitable compensation arising from breaches by the defendant of duties of trust and confidence she is said to have owed to the plaintiff; and

(iv) an account of the profits received by the defendant.

2 The causes of action alleged by…

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 X v Y

Details

AGLC: X v Y [2013] WASC 339
Case: [2013] WASC 339
Decision Date: 13 AUGUST 2013

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the matter of X v Y was heard. The applicant, X, sought a freezing order to prevent the respondent, Y, from disposing of or transferring assets that could be used to satisfy a prospective judgment. The dispute between the parties centred on the applicant's claim for unpaid debts. The applicant alleged that the respondent had failed to settle the debts as per an agreement and that there was a risk that the respondent would dissipate their assets if not restrained by the court.

The legal issues for the court to determine were whether there was a danger that a prospective judgment would be unsatisfied, and whether the balance of convenience favoured the grant of a freezing order. The applicant argued that there was a significant risk that the respondent would transfer or dispose of assets, leaving the applicant unable to enforce any future judgment. The respondent contended that there was no real risk of dissipation of assets and that the imposition of a freezing order would cause disproportionate hardship.

The court considered the evidence and arguments presented by both parties. It found that there was a real risk that the respondent would dissipate their assets, and that the balance of convenience did indeed favour the grant of a freezing order. The court was satisfied that the applicant had demonstrated a serious issue to be tried and that the respondent's assets were at risk of being dissipated. The court also noted that the respondent had not provided sufficient evidence to counter the applicant's claims. As a result, the court granted the freezing order, restraining the respondent from disposing of or transferring assets to avoid satisfying a prospective judgment.

Orders

Orders of the court

Freezing order granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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