B1 v B2 (No. 5) [2019] NSWDC 240

B1 v B2 (No. 5) [2019] NSWDC 240

The court refused to discharge the freezing order outright and instead varied it because preserving a cautious status quo remained appropriate given the antagonism between the parties and earlier concerns about dissipation, while allowing the defendant to use the frozen funds to purchase real estate was an appropriate accommodation. The court stayed the defamation proceedings under s 67 Civil Procedure Act 2005 (NSW) because the plaintiff's pending criminal appeal could affect the operation of s 42 Defamation Act 2005 (NSW), an unsuccessful appeal would lead the plaintiff to abandon the defamation proceedings, and proceeding meanwhile risked unnecessary and distressing evidence and...

Jurisdiction
Australia
Judgment Date
18 April 2019
Procedural Posture
Civil Defamation Proceedings / Interlocutory Applications for Stay of Proceedings Pending Appeal and Discharge or Variation of Freezing Order
Outcome
Freezing order to be varied to permit use of frozen funds for purchase of real estate; proceedings stayed until further order; matter placed in the Inactive List; costs reserved.
Legal Topics
['stay of Proceedings' 'variation of Freezing Order' 'certificate of Conviction in Defamation Proceedings' 'case Management' 'criminal Appeal Affecting Civil Proceedings']
['defamation' 'civil Procedure' 'freezing Orders'] ['stay of Proceedings' 'variation of Freezing Order' 'certificate of Conviction in Defamation Proceedings' 'case Management' 'criminal Appeal Affecting Civil Proceedings']

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Procedural Posture

Civil Defamation Proceedings / Interlocutory Applications for Stay of Proceedings Pending Appeal and Discharge or Variation of Freezing Order

Legal Issues

  1. 1 ["Whether the freezing order made in relation to the proceeds of sale of the defendant's home should be discharged or varied after the plaintiff's criminal convictions." "Whether the defamation proceedings should be stayed pending the plaintiff's appeal to the New South Wales Court of Criminal Appeal." 'Whether the risk of injustice, including possible unnecessary evidence from the defendant and children and the effect of s 42 Defamation Act 2005 (NSW), justified a stay.']

Ratio Decidendi

The court refused to discharge the freezing order outright and instead varied it because preserving a cautious status quo remained appropriate given the antagonism between the parties and earlier concerns about dissipation, while allowing the defendant to use the frozen funds to purchase real estate was an appropriate accommodation. The court stayed the defamation proceedings under s 67 Civil Procedure Act 2005 (NSW) because the plaintiff's pending criminal appeal could affect the operation of s 42 Defamation Act 2005 (NSW), an unsuccessful appeal would lead the plaintiff to abandon the defamation proceedings, and proceeding meanwhile risked unnecessary and distressing evidence and...

Court Disposition

Freezing order to be varied to permit use of frozen funds for purchase of real estate; proceedings stayed until further order; matter placed in the Inactive List; costs reserved.

Orders

  • ['The plaintiff and defendant are to bring in Short Minutes of Order reflecting the agreed form of variation of the freezing order of 24 May 2019 to enable the defendant to use the whole or part of the sum currently frozen for the purchase of real estate in her name, with liberty to apply in the event that the form...