The Cleaning Doctor NSW Pty Ltd v Jeffrey Alexis Fonseca [2019] NSWSC 955

The Cleaning Doctor NSW Pty Ltd v Jeffrey Alexis Fonseca [2019] NSWSC 955

The plaintiffs established a serious question to be tried and some prima facie evidence of misapplication and possible misappropriation of funds capable of supporting a risk of dissipation, but the strength of their case was substantially affected by the unresolved allegation that the written joint venture agreement was forged and by questions about the value of their undertaking as to damages. The balance of justice therefore favoured continuing the existing freezing orders only for a further short period, while requiring prompt expert examination of the questioned document and further directions.

Jurisdiction
Australia
Judgment Date
30 July 2019
Procedural Posture
Interlocutory Application for Continuation of Freezing Orders / Equity Duty List Interlocutory Hearing After Freezing Orders Were First Granted on 24 May 2019
Outcome
Freezing orders continued for a further limited period; directions made for expert examination of the questioned document; costs reserved.
Legal Topics
['freezing Orders' 'serious Question to Be Tried' 'risk of Dissipation of Assets' 'balance of Convenience' 'undertaking as to Damages' 'alleged Joint Venture' 'alleged Forgery']
['equity' 'civil Procedure' 'interlocutory Relief'] ['freezing Orders' 'serious Question to Be Tried' 'risk of Dissipation of Assets' 'balance of Convenience' 'undertaking as to Damages' 'alleged Joint Venture' 'alleged Forgery']

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Procedural Posture

Interlocutory Application for Continuation of Freezing Orders / Equity Duty List Interlocutory Hearing After Freezing Orders Were First Granted on 24 May 2019

Legal Issues

  1. 1 ['Whether the plaintiffs had shown a serious question to be tried sufficient to continue freezing orders.' 'Whether there was a danger that the defendants would dissipate assets so that assets would not be available if judgment were ultimately entered for the plaintiffs.' "Whether the balance of convenience or balance of justice favoured continuing the freezing orders given the alleged forgery of the written joint venture agreement and questions about the plaintiffs' undertaking as to damages." 'What directions should be made for expert examination of the questioned joint venture agreement.']

Ratio Decidendi

The plaintiffs established a serious question to be tried and some prima facie evidence of misapplication and possible misappropriation of funds capable of supporting a risk of dissipation, but the strength of their case was substantially affected by the unresolved allegation that the written joint venture agreement was forged and by questions about the value of their undertaking as to damages. The balance of justice therefore favoured continuing the existing freezing orders only for a further short period, while requiring prompt expert examination of the questioned document and further directions.

Court Disposition

Freezing orders continued for a further limited period; directions made for expert examination of the questioned document; costs reserved.

Orders

  • ['Upon the plaintiffs continuing the usual undertaking as to damages, the Court continues the orders made by Henry J on 28 May 2019 until further order.' 'Grant liberty to the solicitors for the plaintiffs to uplift for the purposes of expert examination the documents in the Court\'s custody marked "Received 9 July...