Tyche Asset Management Pty Ltd v Flyland Development Group Pty Ltd [2021] NSWSC 1283

Tyche Asset Management Pty Ltd v Flyland Development Group Pty Ltd [2021] NSWSC 1283

Non-disclosure of material matters regarding the Property and Stock Agents Act 2002 (NSW) and a payment was not sufficient to warrant discharge of the freezing orders. Plaintiffs demonstrated a good arguable case that the Second Defendant breached employment contract and fiduciary duties. The evidence established risk of asset dissipation and balance of convenience supported continuation of freezing orders against the Second Defendant. Freezing orders discharged against the First Defendant and not extended to Third Defendant due to lack of pleaded claims and evidentiary basis.

Jurisdiction
Australia
Judgment Date
24 September 2021
Procedural Posture
Civil – Equity (duty List) / Inter Partes Hearing of Freezing Order Application
Outcome
Freezing orders extended against Second Defendant; discharged against First Defendant; not granted against Third Defendant. Ancillary disclosure orders made against Second Defendant. Costs reserved.
Legal Topics
['freezing Orders' 'interim Preservation' 'disclosure Obligations' 'employment Contract' 'fiduciary Duties' 'constructive Trust' 'tracing Remedy' 'damages' 'equitable Compensation']
['equity' 'civil Procedure'] ['freezing Orders' 'interim Preservation' 'disclosure Obligations' 'employment Contract' 'fiduciary Duties' 'constructive Trust' 'tracing Remedy' 'damages' 'equitable Compensation']

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Procedural Posture

Civil – Equity (duty List) / Inter Partes Hearing of Freezing Order Application

Legal Issues

  1. 1 ['Whether freezing orders should be continued or discharged for non-disclosure' 'Whether freezing orders should be extended to third defendant' 'Whether material matters were not disclosed at ex parte hearing' 'Whether Plaintiff has demonstrated a risk of dissipation of assets' 'Applicability of Property and Stock Agents Act 2002 (NSW) to Plaintiffs’ claims']

Ratio Decidendi

Non-disclosure of material matters regarding the Property and Stock Agents Act 2002 (NSW) and a payment was not sufficient to warrant discharge of the freezing orders. Plaintiffs demonstrated a good arguable case that the Second Defendant breached employment contract and fiduciary duties. The evidence established risk of asset dissipation and balance of convenience supported continuation of freezing orders against the Second Defendant. Freezing orders discharged against the First Defendant and not extended to Third Defendant due to lack of pleaded claims and evidentiary basis.

Court Disposition

Freezing orders extended against Second Defendant; discharged against First Defendant; not granted against Third Defendant. Ancillary disclosure orders made against Second Defendant. Costs reserved.

Orders

  • ['Leave granted to Plaintiffs to file Amended Summons.' 'Freezing orders against Second Defendant extended until further order.' 'Freezing orders against First Defendant discharged.' 'Second Defendant to file and serve affidavit by 8 October 2021 addressing listed financial matters.' 'Second Defendant to provide by...