Tomasetti v Brailey [2012] NSWCA 6

Tomasetti v Brailey [2012] NSWCA 6

Although the Court of Appeal had jurisdiction to grant a freezing order pending appeal, the applicants did not establish a sufficient danger that any judgment would be wholly or partly unsatisfied by reason of disposition or diminution of assets. The only specific evidence of asset disposition was Mr Lane's transfer of his half interest in a property to his wife for full value, which was not shown to diminish assets available to meet a judgment except through security for legal fees, something permitted under the proposed order. The respondents' failure or refusal to give an undertaking was not, by itself, enough to justify the significant and intrusive remedy of a freezing order.

Jurisdiction
Australia
Judgment Date
30 January 2012
Procedural Posture
Interlocutory Application for Freezing Order / Court of Appeal Application Pending Hearing of Appeal After Applicants Were Unsuccessful at Trial
Outcome
Notice of Motion filed 23 January 2012 dismissed.
Legal Topics
['freezing Orders' 'mareva Orders' 'appellate Jurisdiction' 'risk of Dissipation of Assets' 'costs']
['civil Procedure' 'appellate Procedure'] ['freezing Orders' 'mareva Orders' 'appellate Jurisdiction' 'risk of Dissipation of Assets' 'costs']

Case Brief

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Procedural Posture

Interlocutory Application for Freezing Order / Court of Appeal Application Pending Hearing of Appeal After Applicants Were Unsuccessful at Trial

Legal Issues

  1. 1 ['Whether the Court of Appeal had jurisdiction to grant a freezing order on the application of appellants who had failed in the court below.' 'Whether the applicants established a sufficient danger that a judgment or prospective judgment would be wholly or partly unsatisfied because assets might be disposed of, dealt with or diminished in value.' 'Whether refusal or failure to give an undertaking not to dispose of assets was sufficient to justify a freezing order.' 'How the requirement to demonstrate a good arguable case under UCPR 25.14 applies when a freezing order is sought pending an appeal by an unsuccessful appellant.']

Ratio Decidendi

Although the Court of Appeal had jurisdiction to grant a freezing order pending appeal, the applicants did not establish a sufficient danger that any judgment would be wholly or partly unsatisfied by reason of disposition or diminution of assets. The only specific evidence of asset disposition was Mr Lane's transfer of his half interest in a property to his wife for full value, which was not shown to diminish assets available to meet a judgment except through security for legal fees, something permitted under the proposed order. The respondents' failure or refusal to give an undertaking was not, by itself, enough to justify the significant and intrusive remedy of a freezing order.

Court Disposition

Notice of Motion filed 23 January 2012 dismissed.

Orders

  • ['Notice of Motion filed 23 January 2012 dismissed.' 'Applicants to pay the costs of the respondents to the Notice of Motion.' 'Costs of the application made on 22 and 23 December 2011 to be paid by the applicants.' 'The Court declined to vacate the orders made on 23 December 2011.']