Jingalong Pty Ltd v Todd (No 2) [2014] NSWCA 347

Jingalong Pty Ltd v Todd (No 2) [2014] NSWCA 347

The Court was satisfied that Jingalong would most likely complete the sale of Lot 5 immediately or shortly after the caveat lapsed and that, unless restrained, any net proceeds would be disbursed. Because there was a sufficient risk that assets up to the amount of the asserted costs claim would be dissipated, but the application was ex parte, a limited interim freezing order should be made only until the return date and in a form that did not prevent the sale of Lot 5, discharge of any mortgage, or payment of reasonable sale expenses.

Jurisdiction
Australia
Judgment Date
09 October 2014
Procedural Posture
Interlocutory Application for Freezing Order / Urgent Ex Parte Application Pending Return of Notice of Motion in Appeal
Outcome
Interim freezing order granted on an urgent ex parte basis for a limited period; notice of motion stood over to 13 October 2014.
Legal Topics
['freezing Orders' 'mareva Orders' 'ex Parte Relief' 'costs Orders' 'caveats' 'constructive Trust']
['civil Procedure' 'equity' 'property Law'] ['freezing Orders' 'mareva Orders' 'ex Parte Relief' 'costs Orders' 'caveats' 'constructive Trust']

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Procedural Posture

Interlocutory Application for Freezing Order / Urgent Ex Parte Application Pending Return of Notice of Motion in Appeal

Legal Issues

  1. 1 ['Whether an interim freezing order should be made on an urgent ex parte basis against Jingalong Pty Ltd pending the return of the motion.' 'Whether there was a sufficient danger that Jingalong Pty Ltd would dispose of or deal with assets, including any net proceeds of sale of Lot 5, so that Mr Todd would be unable to satisfy his costs judgment if he succeeded in defending the appeal.' 'Whether the proposed order should preserve assets up to $130,000 without preventing completion of the sale of Lot 5 or payment of secured debt and sale expenses.']

Ratio Decidendi

The Court was satisfied that Jingalong would most likely complete the sale of Lot 5 immediately or shortly after the caveat lapsed and that, unless restrained, any net proceeds would be disbursed. Because there was a sufficient risk that assets up to the amount of the asserted costs claim would be dissipated, but the application was ex parte, a limited interim freezing order should be made only until the return date and in a form that did not prevent the sale of Lot 5, discharge of any mortgage, or payment of reasonable sale expenses.

Court Disposition

Interim freezing order granted on an urgent ex parte basis for a limited period; notice of motion stood over to 13 October 2014.

Orders

  • ['The application for the order was made returnable immediately.' 'Time for service of the application, supporting affidavits and originating process was abridged, with service to be effected by 5pm on 9 October 2014.' 'The freezing order had effect up to and including 4.15pm on 13 October 2014, with a further...