Jaken Properties Australia Pty Limited v Naaman [2020] NSWSC 1554

Jaken Properties Australia Pty Limited v Naaman [2020] NSWSC 1554

The Court found a serious question to be tried as to whether Powerhouse holds assets on trust for Jaken Property Group to which Naaman is subrogated, and determined that relevant asset transfers and trust changes posed a real danger of frustrating judgment enforcement. The balance of convenience favoured preservation via injunction and freezing orders, with no evidence of prejudice from the proposed measures. Orders were made without requiring joinder of third parties, relying on established case law on Mareva relief.

Jurisdiction
Australia
Judgment Date
03 November 2020
Procedural Posture
Equity Proceedings / Interlocutory Application for Injunction and Freezing Orders
Outcome
Interlocutory injunctions and freezing (Mareva) orders against cross-defendants and third parties granted; costs reserved.
Legal Topics
['mareva Injunction' 'freezing Orders' 'breach of Trust' 'subrogation' 'constructive Trusts' 'fraudulent Transactions' 'enforcement of Judgment']
['equity' 'injunctions' 'trust Law'] ['mareva Injunction' 'freezing Orders' 'breach of Trust' 'subrogation' 'constructive Trusts' 'fraudulent Transactions' 'enforcement of Judgment']

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Procedural Posture

Equity Proceedings / Interlocutory Application for Injunction and Freezing Orders

Legal Issues

  1. 1 ['Whether Powerhouse holds $3.6 million plus interest on trust for Jaken Property Group, to which Mr Naaman is entitled by right of subrogation' 'Whether the sale by Powerhouse of the Kings Head Tavern and purchase of Royal Hotel Granville are consistent with efforts to frustrate enforcement of judgment' 'Whether freezing orders should be granted against third parties who hold assets to protect enforcement of judgment debt' 'Whether interlocutory injunctions should restrain further dissipation or trust changes']

Ratio Decidendi

The Court found a serious question to be tried as to whether Powerhouse holds assets on trust for Jaken Property Group to which Naaman is subrogated, and determined that relevant asset transfers and trust changes posed a real danger of frustrating judgment enforcement. The balance of convenience favoured preservation via injunction and freezing orders, with no evidence of prejudice from the proposed measures. Orders were made without requiring joinder of third parties, relying on established case law on Mareva relief.

Court Disposition

Interlocutory injunctions and freezing (Mareva) orders against cross-defendants and third parties granted; costs reserved.

Orders

  • ['Interlocutory injunctions granted against cross-defendants' 'Mareva orders granted against specified third parties (without joinder)' 'Orders made to preserve proceeds of sale and restrain further trust changes or asset dissipation' 'Costs of motion reserved pending final determination of proceedings']