Twigg v Twigg [2019] NSWSC 373

Twigg v Twigg [2019] NSWSC 373

Although Diane Twigg had a good arguable case and there were serious questions to be tried, injunctive relief was refused because she did not show a sensible risk that Max Twigg would dissipate assets, did not give an adequate explanation for delay, her prospects of tracing the impugned sum into current nominated assets were speculative, her liability case faced significant forensic obstacles, and her undertaking as to damages might be insufficient.

Jurisdiction
Australia
Judgment Date
05 April 2019
Procedural Posture
Commercial List Proceeding Seeking Interim Preservation and Freezing Orders / Interlocutory Notice of Motion for Injunctive Relief
Outcome
Application for injunctive relief refused; Notice of Motion of 8 March 2019 dismissed.
Legal Topics
['freezing Order' 'interim Preservation of Property' 'risk of Dissipation' 'constructive Trust and Tracing' 'fiduciary Duties' 'breach of Trust' 'limitation' 'balance of Convenience' 'undertaking as to Damages']
['civil Procedure' 'equity' 'trusts'] ['freezing Order' 'interim Preservation of Property' 'risk of Dissipation' 'constructive Trust and Tracing' 'fiduciary Duties' 'breach of Trust' 'limitation' 'balance of Convenience' 'undertaking as to Damages']

Case Brief

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Procedural Posture

Commercial List Proceeding Seeking Interim Preservation and Freezing Orders / Interlocutory Notice of Motion for Injunctive Relief

Legal Issues

  1. 1 ['Whether the plaintiffs had a serious question to be tried or good arguable case concerning the impugned distributions.' 'Whether any current assets of Max Twigg or his related entities were acquired using the impugned sum so as to justify preservation orders.' 'Whether there was a danger that a prospective judgment would be unsatisfied because assets might be disposed of, dealt with or diminished in value.' "Whether delay, balance of convenience and the value of Diane Twigg's undertaking as to damages weighed against injunctive relief." 'Whether any limitation issue affected the interlocutory application.']

Ratio Decidendi

Although Diane Twigg had a good arguable case and there were serious questions to be tried, injunctive relief was refused because she did not show a sensible risk that Max Twigg would dissipate assets, did not give an adequate explanation for delay, her prospects of tracing the impugned sum into current nominated assets were speculative, her liability case faced significant forensic obstacles, and her undertaking as to damages might be insufficient.

Court Disposition

Application for injunctive relief refused; Notice of Motion of 8 March 2019 dismissed.

Orders

  • ["Diane's Notice of Motion of 8 March 2019 should be dismissed." 'The Court will hear submissions as to costs and on whether Max should be ordered to serve an asset disclosure affidavit.']