Sebastian v Strongwall International Limited (Deregistered) (No 2) [2011] FCA 1105

Sebastian v Strongwall International Limited (Deregistered) (No 2) [2011] FCA 1105

PPS was an innocent third party put to expense by compliance with and setting aside the freezing order. Although the freezing order application was not hopeless from the outset, PPS's 5 August 2011 submissions and 4 August 2011 affidavit gave a sufficient explanation of the security arrangement such that, by 10 August 2011, the applicants should have appreciated that prospects of maintaining the freezing order were very slim. The freezing order and injunction against PPS were therefore discharged, the money paid into Court was ordered to be paid out to PPS, and PPS received party and party costs up to 10 August 2011 and indemnity costs thereafter. The undertaking filed by Mr Hanna was not...

Jurisdiction
Australia
Judgment Date
27 September 2011
Procedural Posture
Costs and Practice and Procedure Application Concerning Freezing Order and Injunctive Relief / Determined on the Papers After Sebastian V Strongwall International Limited (deregistered) [2011] FCA 1045 on Outstanding Issues of Professional Payments Services Pty Ltd's Costs and the Terms for Discharge of Injunctive Orders
Outcome
Freezing order and injunction against Professional Payments Services Pty Ltd set aside and discharged; money paid into Court ordered to be paid out to Professional Payments Services Pty Ltd; applicants ordered to pay PPS costs on a party and party basis up to 10 August 2011 and on an indemnity basis thereafter;...
Legal Topics
['indemnity Costs' 'freezing Orders Against Innocent Third Parties' 'undertakings as Condition of Discharge of Injunctions' 'payment Out of Money Paid Into Court']
['costs' 'practice and Procedure' 'injunctive Relief'] ['indemnity Costs' 'freezing Orders Against Innocent Third Parties' 'undertakings as Condition of Discharge of Injunctions' 'payment Out of Money Paid Into Court']

Case Brief

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Procedural Posture

Costs and Practice and Procedure Application Concerning Freezing Order and Injunctive Relief / Determined on the Papers After Sebastian V Strongwall International Limited (deregistered) [2011] FCA 1045 on Outstanding Issues of Professional Payments Services Pty Ltd's Costs and the Terms for Discharge of Injunctive Orders

Legal Issues

  1. 1 ['Whether Professional Payments Services Pty Ltd, as an innocent third party, should receive costs on an indemnity basis after successfully seeking discharge of a freezing order and injunction.' "Whether the applicants should pay Professional Payments Services Pty Ltd's costs on a party and party basis up to 10 August 2011 and on an indemnity basis thereafter." 'Whether the undertaking filed by George Khalil Hanna was sufficient to permit discharge of the injunctive orders.' 'Whether the sum paid into Court by Professional Payments Services Pty Ltd should be released to it.']

Ratio Decidendi

PPS was an innocent third party put to expense by compliance with and setting aside the freezing order. Although the freezing order application was not hopeless from the outset, PPS's 5 August 2011 submissions and 4 August 2011 affidavit gave a sufficient explanation of the security arrangement such that, by 10 August 2011, the applicants should have appreciated that prospects of maintaining the freezing order were very slim. The freezing order and injunction against PPS were therefore discharged, the money paid into Court was ordered to be paid out to PPS, and PPS received party and party costs up to 10 August 2011 and indemnity costs thereafter. The undertaking filed by Mr Hanna was not...

Court Disposition

Freezing order and injunction against Professional Payments Services Pty Ltd set aside and discharged; money paid into Court ordered to be paid out to Professional Payments Services Pty Ltd; applicants ordered to pay PPS costs on a party and party basis up to 10 August 2011 and on an indemnity basis thereafter;...

Orders

  • ['The freezing order and injunction against Professional Payments Services Pty Ltd pursuant to paragraph 2 of the Orders made on 6 July 2011 (and as amended on 11 July 2011 and 27 July 2011) be set aside and discharged.' 'The sum of $59,701.47 paid into Court by Professional Payments Services Pty Ltd on 16 August...