Atlanta Building Pty Ltd v Abela [2024] NSWSC 1193

Atlanta Building Pty Ltd v Abela [2024] NSWSC 1193

The notice to produce was properly issued for a legitimate forensic purpose as the Family Court orders were apparently relevant to both the pleaded issues and asset dissipation risk. There is insufficient solid evidence to support a real risk of asset dissipation by the second defendant (Ms Amos), and therefore the exceptional remedy of a freezing order is not warranted against her. The evidence suggests, in fact, an increase in her asset position. In respect of the first defendant (Mr Abela), although a substantial diminution in asset value is apparent, the precise terms of relief sought against him are of uncertain utility since he has no clear current interest in the proceeds that...

Parties
Plaintiff: Atlanta Building Pty Ltd; First Defendant: David Abela; Second Defendant: Rebecca Amos
Jurisdiction
Australia
Judgment Date
20 September 2024
Procedural Posture
Interlocutory Applications in Equity/commercial Proceedings / Post Interlocutory Hearing; Judgment on Notice to Produce and Freezing Orders Motions
Outcome
Notice to produce motion dismissed; freezing orders motion dismissed as against second defendant; plaintiff granted liberty to apply as to form of freezing order against first defendant; costs orders made according to outcome.
Legal Topics
Freezing Orders, Interlocutory Relief, Notice to Produce, Asset Dissipation, Burden of Proof
Civil Procedure Equity Commercial Law Freezing Orders Interlocutory Relief Notice to Produce Asset Dissipation Burden of Proof

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 24 Party arguments 2 Amounts and remedies 11
Sign in to unlock

Parties

Atlanta Building Pty Ltd

Plaintiff

David Abela

First Defendant

Rebecca Amos

Second Defendant

Procedural Posture

Interlocutory Applications in Equity/commercial Proceedings / Post Interlocutory Hearing; Judgment on Notice to Produce and Freezing Orders Motions

Legal Issues

  1. 1 Whether to set aside notice to produce issued to second defendant under UCPR r 34.1
  2. 2 Whether to grant freezing orders and ancillary asset disclosure orders under UCPR rr 25.11 and 25.12 against first and/or second defendant

Ratio Decidendi

The notice to produce was properly issued for a legitimate forensic purpose as the Family Court orders were apparently relevant to both the pleaded issues and asset dissipation risk. There is insufficient solid evidence to support a real risk of asset dissipation by the second defendant (Ms Amos), and therefore the exceptional remedy of a freezing order is not warranted against her. The evidence suggests, in fact, an increase in her asset position. In respect of the first defendant (Mr Abela), although a substantial diminution in asset value is apparent, the precise terms of relief sought against him are of uncertain utility since he has no clear current interest in the proceeds that...

Court Disposition

Notice to produce motion dismissed; freezing orders motion dismissed as against second defendant; plaintiff granted liberty to apply as to form of freezing order against first defendant; costs orders made according to outcome.

Orders

  • Dismiss the notice of motion filed 28 June 2024 by the plaintiff insofar as it seeks relief against the second defendant.
  • Grant the plaintiff liberty to apply to McGrath J in chambers as to the form of any proposed freezing order against the first defendant.