El-Rihani v Hotait (No 4) [2023] FCA 1615

El-Rihani v Hotait (No 4) [2023] FCA 1615

Because there was evidence of an unpaid costs order, the defendant's failure to respond to attempts to agree costs, a contract for sale of real property in the defendant's name to his wife, and the defendant's disregard of previous orders, there was a danger that the costs order might not be met. The requirements for a freezing order limited to unpaid costs were met, enlivening r 7.33, and asset disclosure was appropriate to identify assets, prevent dissipation and facilitate execution once costs were quantified.

Jurisdiction
Australia
Judgment Date
14 December 2023
Procedural Posture
Interlocutory Application for Freezing Orders and Ancillary Orders / Ancillary Orders to Prospective Freezing Orders; Application Otherwise Stood Over for Case Management
Outcome
Ancillary asset disclosure orders made; interlocutory application otherwise stood over for case management; Registrar listing vacated.
Legal Topics
['freezing Orders' 'ancillary Orders' 'asset Disclosure' 'costs Orders']
['practice and Procedure'] ['freezing Orders' 'ancillary Orders' 'asset Disclosure' 'costs Orders']

Case Brief

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Procedural Posture

Interlocutory Application for Freezing Orders and Ancillary Orders / Ancillary Orders to Prospective Freezing Orders; Application Otherwise Stood Over for Case Management

Legal Issues

  1. 1 ["Whether the Court's power under r 7.33 of the Federal Court Rules 2011 to make ancillary orders in relation to a prospective freezing order was enlivened." 'Whether it was appropriate to order the defendant to disclose his assets by affidavit before determining the freezing order application.' "Whether there was a danger that the plaintiff's costs order may not be met in due course."]

Ratio Decidendi

Because there was evidence of an unpaid costs order, the defendant's failure to respond to attempts to agree costs, a contract for sale of real property in the defendant's name to his wife, and the defendant's disregard of previous orders, there was a danger that the costs order might not be met. The requirements for a freezing order limited to unpaid costs were met, enlivening r 7.33, and asset disclosure was appropriate to identify assets, prevent dissipation and facilitate execution once costs were quantified.

Court Disposition

Ancillary asset disclosure orders made; interlocutory application otherwise stood over for case management; Registrar listing vacated.

Orders

  • ["By noon on Friday 22 December 2023, the defendant serve on the plaintiff an affidavit disclosing all the defendant's assets world-wide, giving the value, location and details of those assets including any mortgages, charges or other encumbrances to which they are subject, and disclosing the extent of the...