Linney v Solomou [2020] NSWSC 499

Linney v Solomou [2020] NSWSC 499

The relief sought would operate as a freezing order, but the plaintiff did not provide sufficient evidence of a real risk that the defendant would dissipate assets so as to frustrate any judgment. The defendant's refusal to consent to retention of the balance of the Fund in a controlled moneys account was insufficient, the plaintiff's good arguable case was not clearly articulated on the application, and no undertaking as to damages was proffered. The notice of motion was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
06 May 2020
Procedural Posture
Notice of Motion for Interlocutory Relief in Equity Proceedings Concerning Rectification, Construction and Specific Performance of a Deed / Determined on the Papers
Outcome
Notice of motion dismissed with costs.
Legal Topics
['interim Preservation' 'freezing Orders' 'controlled Moneys Account' 'rectification of Deed' 'specific Performance' 'estate Funds']
['civil Procedure' 'equity' 'succession'] ['interim Preservation' 'freezing Orders' 'controlled Moneys Account' 'rectification of Deed' 'specific Performance' 'estate Funds']

Case Brief

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Procedural Posture

Notice of Motion for Interlocutory Relief in Equity Proceedings Concerning Rectification, Construction and Specific Performance of a Deed / Determined on the Papers

Legal Issues

  1. 1 ["Whether the plaintiff's proposed restraint on distribution of estate funds was tantamount to an application for a freezing order." 'Whether the plaintiff established a good arguable case and sufficient evidence of a danger that any judgment or prospective judgment would be wholly or partly unsatisfied.' 'Whether refusal by the defendant to consent to retention of funds in a controlled moneys account was sufficient to justify freezing order relief.' 'Whether the absence of an undertaking as to damages weighed against granting the relief sought.']

Ratio Decidendi

The relief sought would operate as a freezing order, but the plaintiff did not provide sufficient evidence of a real risk that the defendant would dissipate assets so as to frustrate any judgment. The defendant's refusal to consent to retention of the balance of the Fund in a controlled moneys account was insufficient, the plaintiff's good arguable case was not clearly articulated on the application, and no undertaking as to damages was proffered. The notice of motion was therefore dismissed with costs.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['Dismiss with costs the notice of motion filed on 2 March 2020 by the plaintiff.']