Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 616

Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 616

The freezing orders were discharged and a new application refused because the plaintiff failed to make full and frank disclosure on the ex parte application and there was no credible evidence of a real risk that the defendants would dissipate assets to defeat a judgment. Costs on indemnity basis were awarded against the second plaintiff due to the improper nature of the applications and lack of evidentiary basis for relief sought.

Parties
First Plaintiff: Eric Clyde Thomas; Second Plaintiff: Softsand Design Investments Pty Ltd; Third Plaintiff: John Leslie Sullivan; First Defendant: SMP (International) Pty Ltd; Second Defendant: Eugene King; Third Defendant: David Joseph King; Fourth Defendant: Gregory Paul Willett; Fifth Defendant: Deborah Willett
Jurisdiction
Australia
Judgment Date
03 June 2010
Procedural Posture
Interlocutory Application / Ex Parte Application and Discharge of Freezing Orders
Outcome
Freezing orders discharged; new freezing order application refused; Second Plaintiff to pay costs on indemnity basis.
Legal Topics
Freezing Orders, Ex Parte Applications, Costs Indemnity Basis, Disclosure Obligations in Ex Parte Proceedings
Civil Procedure Freezing Orders Ex Parte Applications Costs Indemnity Basis Disclosure Obligations in Ex Parte Proceedings

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Parties

Eric Clyde Thomas

First Plaintiff

Softsand Design Investments Pty Ltd

Second Plaintiff

John Leslie Sullivan

Third Plaintiff

SMP (International) Pty Ltd

First Defendant

Eugene King

Second Defendant

David Joseph King

Third Defendant

Gregory Paul Willett

Fourth Defendant

Deborah Willett

Fifth Defendant

Procedural Posture

Interlocutory Application / Ex Parte Application and Discharge of Freezing Orders

Legal Issues

  1. 1 Whether full and frank disclosure was made in the ex parte application for freezing orders
  2. 2 Whether freezing orders should be discharged and a new interlocutory application refused
  3. 3 Whether costs should be awarded on an indemnity basis

Ratio Decidendi

The freezing orders were discharged and a new application refused because the plaintiff failed to make full and frank disclosure on the ex parte application and there was no credible evidence of a real risk that the defendants would dissipate assets to defeat a judgment. Costs on indemnity basis were awarded against the second plaintiff due to the improper nature of the applications and lack of evidentiary basis for relief sought.

Court Disposition

Freezing orders discharged; new freezing order application refused; Second Plaintiff to pay costs on indemnity basis.

Orders

  • Freezing orders granted on 31 May 2010 discharged and not extended.
  • Oral application for new freezing order refused.