D & A Property Group Pty Ltd v Sonar Investments Pty Ltd [2014] NSWSC 1800

D & A Property Group Pty Ltd v Sonar Investments Pty Ltd [2014] NSWSC 1800

A freezing order was justified to preserve amounts for which the plaintiffs had a sufficiently arguable claim, including shareholder loan-related claims, equity, company creditor amounts, payments to creditors, and restitution of amounts paid under the share sale agreement. However, it was not justified to freeze assets for the plaintiffs' claim to 75 per cent of forecast development profit because the agreement was for shares, damages would prima facie be assessed by share value at the time of delivery rather than future development profit, the arm's length sale supported the $15.5 million underlying asset value, there was no sufficient evidence of undervalue or the plaintiffs' ability...

Jurisdiction
Australia
Judgment Date
15 December 2014
Procedural Posture
Proceedings Seeking Interlocutory Freezing Orders in Respect of Proceeds of Sale Connected With a Share Sale Agreement and Company Assets / Interlocutory Application Pending Final Hearing
Outcome
Freezing orders made.
Legal Topics
['freezing Orders' 'interlocutory Injunctions' 'share Sale Agreement' 'shareholder Loans' 'equitable Estoppel' 'damages for Breach of Contract' 'restitution of Deposit and Purchase Price Payments' 'gst Liability']
['equity' 'corporations' 'contract' 'civil Procedure'] ['freezing Orders' 'interlocutory Injunctions' 'share Sale Agreement' 'shareholder Loans' 'equitable Estoppel' 'damages for Breach of Contract' 'restitution of Deposit and Purchase Price Payments' 'gst Liability']

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Procedural Posture

Proceedings Seeking Interlocutory Freezing Orders in Respect of Proceeds of Sale Connected With a Share Sale Agreement and Company Assets / Interlocutory Application Pending Final Hearing

Legal Issues

  1. 1 ['Whether freezing orders should be made over proceeds of sale of the Hornsby property pending final hearing.' 'Whether amounts claimed for shareholder loans, interest, consultancy fees, equity, company creditors, and payments made to creditors should be preserved.' 'Whether amounts paid under the share sale agreement, including deposit and payments on account of the purchase price, should be preserved.' "Whether the freezing order should extend to the plaintiffs' claim for 75 per cent of forecast development profit." 'Whether an additional amount should be temporarily frozen for a potential GST liability.']

Ratio Decidendi

A freezing order was justified to preserve amounts for which the plaintiffs had a sufficiently arguable claim, including shareholder loan-related claims, equity, company creditor amounts, payments to creditors, and restitution of amounts paid under the share sale agreement. However, it was not justified to freeze assets for the plaintiffs' claim to 75 per cent of forecast development profit because the agreement was for shares, damages would prima facie be assessed by share value at the time of delivery rather than future development profit, the arm's length sale supported the $15.5 million underlying asset value, there was no sufficient evidence of undervalue or the plaintiffs' ability...

Court Disposition

Freezing orders made.

Orders

  • ['Upon the plaintiffs by their counsel giving the usual undertaking as to damages, the defendants were restrained from removing from Australia, disposing of or dealing with $8,980,362.25 from the proceeds of sale of the Hornsby Project otherwise than by payment into an interest bearing account with a major...