Vaughan v Duncan [2007] NSWSC 811

Vaughan v Duncan [2007] NSWSC 811

There was insufficient evidence to support a real risk or apprehension of dissipation of assets by the cross defendant; accordingly, the continuation of the Mareva injunction is not justified. Furthermore, refusal to accept the Calderbank offer was unreasonable, supporting an award of indemnity costs from the date of the offer.

Parties
Plaintiff / Cross Claimant: Diane Vaughan; Defendant / Cross Claimant: Peter Victor Duncan; Cross Defendant: Colin Raymond Vaughan
Jurisdiction
Australia
Judgment Date
11 July 2007
Procedural Posture
Equity Application for Freezing (mareva) Order / Final Determination of Application for Continuation of Mareva Relief
Outcome
Application for continuation of Mareva relief dismissed. Costs awarded to cross defendant, with indemnity from the date of Calderbank offer.
Legal Topics
Mareva Injunctions, Interlocutory Injunctions, Apprehension of Dissipation, Standard of Proof, Injunction to Preserve Property, Costs, Indemnity Costs, Calderbank Letter
Equity Civil Procedure Mareva Injunctions Interlocutory Injunctions Apprehension of Dissipation Standard of Proof Injunction to Preserve Property Costs +2 more

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Parties

Diane Vaughan

Plaintiff / Cross Claimant

Peter Victor Duncan

Defendant / Cross Claimant

Colin Raymond Vaughan

Cross Defendant

Procedural Posture

Equity Application for Freezing (mareva) Order / Final Determination of Application for Continuation of Mareva Relief

Legal Issues

  1. 1 Whether there is sufficient apprehension of dissipation of assets to justify continuation of Mareva relief
  2. 2 Whether conduct of cross defendant warrants injunction to preserve property
  3. 3 Whether costs should be awarded on an indemnity basis after Calderbank offer

Ratio Decidendi

There was insufficient evidence to support a real risk or apprehension of dissipation of assets by the cross defendant; accordingly, the continuation of the Mareva injunction is not justified. Furthermore, refusal to accept the Calderbank offer was unreasonable, supporting an award of indemnity costs from the date of the offer.

Court Disposition

Application for continuation of Mareva relief dismissed. Costs awarded to cross defendant, with indemnity from the date of Calderbank offer.

Orders

  • The cross claimant's amended notice of motion filed on 10 July 2007 is dismissed.
  • The cross claimant to pay the cross defendant's costs of the application up to and including 6 April 2007 on the ordinary basis, and from and including 7 April 2007 on the indemnity basis.