Bockowski v Kostrzynski [2010] NSWSC 583

Bockowski v Kostrzynski [2010] NSWSC 583

The property (lot 71) is an asset of a regulated self-managed superannuation fund and, by operation of statute, is not available to creditors and cannot properly be the subject of a Mareva injunction. The onus lies on the party seeking the injunction, and the evidence supports that lot 71 is superannuation property.

Parties
First Plaintiff/respondent: P Bockowski Pty Ltd; Second Plaintiff/respondent: Pawel Bockowski; First Defendant/applicant: Krzysztof Kostrzynski; Second Defendant: Krzysztof Kostrzynski (as representative of late Theresa Kostrzynski)
Jurisdiction
Australia
Judgment Date
04 May 2010
Procedural Posture
Freezing Order Application in Enforcement Proceedings / Application to Vary/freezing Order and for Removal of Land Title Notification
Outcome
Freezing order varied; notification on land title removed
Legal Topics
Judgments and Orders, Enforcement, Execution Against Property, Freezing Orders, Superannuation
Civil Procedure Equity Judgments and Orders Enforcement Execution Against Property Freezing Orders Superannuation

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Parties

P Bockowski Pty Ltd

First Plaintiff/respondent

Pawel Bockowski

Second Plaintiff/respondent

Krzysztof Kostrzynski

First Defendant/applicant

Krzysztof Kostrzynski (as representative of late Theresa Kostrzynski)

Second Defendant

Procedural Posture

Freezing Order Application in Enforcement Proceedings / Application to Vary/freezing Order and for Removal of Land Title Notification

Legal Issues

  1. 1 Whether a freezing order can be maintained against property owned by a regulated self-managed superannuation fund in which judgment debtor has an interest

Ratio Decidendi

The property (lot 71) is an asset of a regulated self-managed superannuation fund and, by operation of statute, is not available to creditors and cannot properly be the subject of a Mareva injunction. The onus lies on the party seeking the injunction, and the evidence supports that lot 71 is superannuation property.

Court Disposition

Freezing order varied; notification on land title removed

Orders

  • The freezing order made on 17 March 2010 and continued on 22 March and 31 March 2010 is varied, deleting reference to lot 71/1070146 in paragraph 7(1)(c)(i).
  • Notification AF 409479 Order of Court is removed from the land comprised in folio identifier 71/1070146.