Cull v Davies [2023] FCA 763

Cull v Davies [2023] FCA 763

The Court was satisfied on an ex parte basis that there was a realistic prospect that the Property Settlement Sum and the Audi were realisable in the second respondent's bankruptcy, that the evidence disclosed some prospect that the transfers to the first respondent were made to frustrate the applicants' attempts to realise the bankrupt estate, and that there was some risk that absent relief the first respondent would deal with the property in a way that defeated the applicants' claims. No discretionary considerations weighed against interim relief, so a freezing order limited to the combined value of the Property Settlement Sum and the Audi was made.

Jurisdiction
Australia
Judgment Date
03 July 2023
Procedural Posture
Interlocutory Application for Freezing Orders in Bankruptcy Proceeding / Urgent Ex Parte Interlocutory Application
Outcome
Interlocutory freezing order made against the first respondent on an ex parte basis.
Legal Topics
['freezing Orders' 'ex Parte Relief' 'sequestration Order' 'dissipation of Assets' 'bankrupt Estate']
['practice and Procedure' 'bankruptcy and Insolvency'] ['freezing Orders' 'ex Parte Relief' 'sequestration Order' 'dissipation of Assets' 'bankrupt Estate']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Application for Freezing Orders in Bankruptcy Proceeding / Urgent Ex Parte Interlocutory Application

Legal Issues

  1. 1 ['Whether interim ex parte freezing orders should be made against the first respondent under div 7.4 of the Federal Court Rules 2011 (Cth).' "Whether there was a good arguable case that assets transferred to the first respondent were realisable in the second respondent's bankruptcy." 'Whether there was a danger that a prospective judgment would be wholly or partly unsatisfied because the first respondent might dispose of, deal with or diminish the value of assets.']

Ratio Decidendi

The Court was satisfied on an ex parte basis that there was a realistic prospect that the Property Settlement Sum and the Audi were realisable in the second respondent's bankruptcy, that the evidence disclosed some prospect that the transfers to the first respondent were made to frustrate the applicants' attempts to realise the bankrupt estate, and that there was some risk that absent relief the first respondent would deal with the property in a way that defeated the applicants' claims. No discretionary considerations weighed against interim relief, so a freezing order limited to the combined value of the Property Settlement Sum and the Audi was made.

Court Disposition

Interlocutory freezing order made against the first respondent on an ex parte basis.

Orders

  • ['The application for interlocutory relief be returnable immediately.' 'A freezing order be made against the first respondent in the terms specified in Annexure "A" up to 4:00 pm on Wednesday, 5 July 2023.' 'The proceeding be adjourned to 2:15 pm on Wednesday, 5 July 2023.' "The applicants' costs be costs in the...