Yaj1 v Opera Australia - [2021] NSWSC 771

Supreme Court

New South Wales

Medium Neutral Citation: YAJ1 v Opera Australia [2021] NSWSC 771
Hearing dates: 25 June 2021
Decision date: 25 June 2021
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Note the undertaking made by the second defendant in terms of exhibit 1.
(2)   Note that the plaintiff, by her counsel Mr Loukas, has given the usual undertaking as to damages.
(3)   Order the second defendant, within 14 days, to file and serve on the applicant an affidavit:
(a)   setting out all of his assets worldwide, specifying their value, location, and details including any mortgages, charges or other encumbrances to which they are subject, the extent of his interest in any of these assets, and, in the case of any bank accounts which he controls, the name of the bank in which the account is held, the name of the branch, the name of the account, the name of a person in whose name the account is held, the account number, and the balance of the account as at the date of the affidavit; and
(b)   in respect of the proceeds of sale of the property known as the Lewisham property:
(i)   the amount received by the second defendant and the date on which the amount or amounts were received;
(ii)   what the second defendant did with the proceeds and, whether they if they, or any part of them, were used to purchase an assets, what the asset is and where is it located, whether any part of the proceeds remains and if, so, how much and in what account or in what form.
(4)   The costs of the plaintiff’s notice of motion are to be the plaintiff’s costs of the cause.
(5)   Matter adjourned to 15 July 2021 at 9.15am.

Catchwords:
CIVIL PROCEDURE — Statement of claim — Plaintiff seeking damages, an interim asset freezing order and an ancillary order that the second defendant disclose all of his assets and what occurred with the proceeds of a sale of real estate — Second defendant swore an affidavit in which he deposes as to some of his assets — Affidavit presently sufficient in lieu of the freezing order — Second defendant ordered to swear, file and serve an affidavit
COSTS — Party/Party — Costs of the motion are to be the plaintiff’s costs in the cause

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), Part 25

Cases Cited:
Blatch v Archer (1774) 98 ER 969
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Category: Procedural rulings
Parties: YAJ1 (Plaintiff)
Opera Australia (First Defendant)
David Edward Lewis (Second Defendant)
Representation:
Counsel:
B Loukas (Plaintiff)
H Halligan (Second Defendant)
Solicitors:
Karp O’Neil Lawyers (Plaintiff)
Carroll & O'Dea Lawyers (First Defendant)
Boyd House and Partners (Second Defendant)

File Number(s): 2021/115868
Publication restriction: Non-publication of any information or material that may lead to the identification of the plaintiff (Court Suppression and Non-publication Orders Act 2010 (NSW), s 7)

Judgment (ex tempore)

By statement of claim filed…

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 Yaj1 v Opera Australia

Details

AGLC: Yaj1 v Opera Australia [2021] NSWSC 771
Case: [2021] NSWSC 771
Decision Date: 25 June 2021

CaseChat Overview and Summary

The plaintiff, Yaj1, sought damages, an interim asset freezing order, and an ancillary order that the second defendant disclose all of his assets and what occurred with the proceeds of a sale of real estate from Opera Australia. The dispute was heard in the Supreme Court of New South Wales. The plaintiff alleged that the second defendant had engaged in a breach of fiduciary duty and sought relief to protect the assets that were the subject of the dispute.

The court was required to determine whether the affidavit provided by the second defendant was sufficient to satisfy the plaintiff's request for an interim asset freezing order. The second defendant had sworn an affidavit in which he deposed as to some of his assets, but the plaintiff argued that this was not sufficient. The court also needed to decide whether the second defendant should be ordered to swear, file, and serve an affidavit that would provide a more detailed account of his assets and the proceeds from the sale of the real estate.

The court held that the affidavit presently sworn by the second defendant was sufficient in lieu of the freezing order, but the plaintiff was not satisfied with the detail provided. The court ordered the second defendant to swear, file, and serve an affidavit that provided a more comprehensive account of his assets and the proceeds from the sale of the real estate. The court also ordered that the costs of the motion were to be the plaintiff's costs in the cause.

Orders