Hewitt v McClymont (No 2) [2024] NSWSC 1453

Hewitt v McClymont (No 2) [2024] NSWSC 1453

The application to discharge the freezing order was dismissed as the plaintiff continued to have a good arguable case regarding potential misappropriation/unexplained withdrawals from the superannuation fund and the risk of asset dissipation by the defendant remained, including ongoing concerns from his gambling and disposal of property. Ongoing procedural steps (final taking of account, challenge to account, equitable relief) require preservation of assets. The freezing order was further varied to permit certain releases for legal and business expenses from specified bank accounts, but otherwise maintained at the specified limits to secure potential recovery pending determination of...

Parties
Plaintiff: Geoffrey Hewitt; Defendant: Scott McClymont
Jurisdiction
Australia
Judgment Date
18 November 2024
Procedural Posture
Equity Expedition List / Application to Discharge or Vary Freezing Order, Interlocutory Ruling
Outcome
Defendant's motion to discharge freezing order dismissed; freezing order varied as set out; further orders for ongoing proceedings.
Legal Topics
Freezing Orders, Trustee Duty to Account, Self Managed Superannuation Fund, Variation and Discharge of Mareva Orders, Asset Preservation, Legal Costs
Equity Civil Procedure Freezing Orders Trustee Duty to Account Self Managed Superannuation Fund Variation and Discharge of Mareva Orders Asset Preservation Legal Costs

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Parties

Geoffrey Hewitt

Plaintiff

Scott McClymont

Defendant

Procedural Posture

Equity Expedition List / Application to Discharge or Vary Freezing Order, Interlocutory Ruling

Legal Issues

  1. 1 Whether freezing order should be discharged or varied based on provision of account and defendant’s explanations
  2. 2 Whether risk of asset dissipation justifies continuation of freezing order
  3. 3 Whether defendant’s disclosure and compliance is sufficient to warrant discharge or variation

Ratio Decidendi

The application to discharge the freezing order was dismissed as the plaintiff continued to have a good arguable case regarding potential misappropriation/unexplained withdrawals from the superannuation fund and the risk of asset dissipation by the defendant remained, including ongoing concerns from his gambling and disposal of property. Ongoing procedural steps (final taking of account, challenge to account, equitable relief) require preservation of assets. The freezing order was further varied to permit certain releases for legal and business expenses from specified bank accounts, but otherwise maintained at the specified limits to secure potential recovery pending determination of...

Court Disposition

Defendant's motion to discharge freezing order dismissed; freezing order varied as set out; further orders for ongoing proceedings.

Orders

  • The defendant is permitted to operate the bank account with the Commonwealth Bank of Australia in the name of Mainstream Finance Services Pty Ltd with account number 062544 10493725.
  • The defendant is entitled to withdraw up to $25,000 from the bank accounts listed at paragraph 4 of his affidavit of 8 August 2024 for legal fees, as specified.