Smith v Acquire Asia Pacific Philippines Inc (No 2) [2016] NSWSC 1285

Smith v Acquire Asia Pacific Philippines Inc (No 2) [2016] NSWSC 1285

No evidence established risk of dissipation or real danger that a judgment would remain unsatisfied, and the defendant, having brought its cross-claim in this jurisdiction, assumed the risk regarding enforcement; therefore, the defendant's application for freezing order was dismissed and plaintiffs' orders were granted.

Parties
First Plaintiff: Jonathan James Smith; Second Plaintiff: Saffelberg Investments NV; Third Plaintiff: Richard Weatherstone; Fourth Plaintiff: Darcy Mark Lalonde; Fifth Plaintiff: Alvin Edillon; Sixth Plaintiff: Windy A Dolendo; Defendant: Acquire Asia Pacific Philippines Inc
Jurisdiction
Australia
Judgment Date
08 September 2016
Procedural Posture
Order on Motion / Post Judgment Orders Following Answer to Separate Question
Outcome
Defendant's notice of motion dismissed, orders in favour of plaintiffs to direct payment of Escrow Amount
Legal Topics
Freezing Order, Escrow, Breach of Warranty, Contractual Obligations, Practice Under Uniform Civil Procedure Rules
Equity Commercial Law Practice and Procedure Freezing Order Escrow Breach of Warranty Contractual Obligations Practice Under Uniform Civil Procedure Rules

Case Brief

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Parties

Jonathan James Smith

First Plaintiff

Saffelberg Investments NV

Second Plaintiff

Richard Weatherstone

Third Plaintiff

Darcy Mark Lalonde

Fourth Plaintiff

Alvin Edillon

Fifth Plaintiff

Windy A Dolendo

Sixth Plaintiff

Acquire Asia Pacific Philippines Inc

Defendant

Procedural Posture

Order on Motion / Post Judgment Orders Following Answer to Separate Question

Legal Issues

  1. 1 Whether defendant is obliged to join with plaintiffs to direct Escrow Agent to release Escrow Amount despite unresolved cross-claim
  2. 2 Whether freezing order should be made over part of escrow pending determination of cross-claim
  3. 3 Whether evidence establishes danger that judgment will be unsatisfied

Ratio Decidendi

No evidence established risk of dissipation or real danger that a judgment would remain unsatisfied, and the defendant, having brought its cross-claim in this jurisdiction, assumed the risk regarding enforcement; therefore, the defendant's application for freezing order was dismissed and plaintiffs' orders were granted.

Court Disposition

Defendant's notice of motion dismissed, orders in favour of plaintiffs to direct payment of Escrow Amount

Orders

  • The defendant's notice of motion filed on 24 June 2016 is dismissed with no order as to costs.
  • Order defendant to join with plaintiffs to direct Escrow Agent to pay Escrow Amount to plaintiffs.