Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd (No 3) [2019] NSWSC 1285

Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd (No 3) [2019] NSWSC 1285

The application was dismissed because the evidence did not show that Kempsey Timbers was engaging in conduct calculated to evade its obligation to meet Hurford's costs order or to abuse the Court's process. On a fair view, Kempsey Timbers was seeking to increase, not diminish, its equity in the Wauchope property by using funds advanced by Oakley Investments to pursue development and subdivision of that property.

Jurisdiction
Australia
Judgment Date
26 September 2019
Procedural Posture
Application for Freezing Order in Equity Commercial List Proceedings / Notice of Motion Dated 12 September 2019 After Judgment and Costs Order
Outcome
Plaintiff's application for freezing order dismissed.
Legal Topics
['freezing Order' 'interim Preservation of Property' 'costs Order' 'dissipation of Assets' 'mareva Injunction']
['civil Procedure' 'equity'] ['freezing Order' 'interim Preservation of Property' 'costs Order' 'dissipation of Assets' 'mareva Injunction']

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Procedural Posture

Application for Freezing Order in Equity Commercial List Proceedings / Notice of Motion Dated 12 September 2019 After Judgment and Costs Order

Legal Issues

  1. 1 ["Whether there was a danger that Hurford's costs order would be unsatisfied because Kempsey Timbers' assets might be disposed of, dealt with or diminished in value." "Whether Kempsey Timbers' mortgage to Oakley Investments and further drawdowns showed conduct calculated to diminish its equity in the Wauchope property." 'Whether discretionary considerations justified a freezing order restraining dealings with the Wauchope property.']

Ratio Decidendi

The application was dismissed because the evidence did not show that Kempsey Timbers was engaging in conduct calculated to evade its obligation to meet Hurford's costs order or to abuse the Court's process. On a fair view, Kempsey Timbers was seeking to increase, not diminish, its equity in the Wauchope property by using funds advanced by Oakley Investments to pursue development and subdivision of that property.

Court Disposition

Plaintiff's application for freezing order dismissed.

Orders

  • ["The plaintiff's Notice of Motion of 12 September 2019 is dismissed." 'Set aside order 1 made by me on 17 September 2019.']