J.C. Storm Pty Ltd v 8 Baldwin Rise Pty Ltd [2023] NSWSC 1467

J.C. Storm Pty Ltd v 8 Baldwin Rise Pty Ltd [2023] NSWSC 1467

The undertakings to the Court offered by the defendant and associated parties (Rise SWR and Mr Pszczonka) are sufficient in the circumstances to give the plaintiff equivalent protection to that of a freezing order, obviating the need to grant such an order. As the defendant is a special purpose vehicle and Rise SWR has sufficient equity, and given the undertakings and representation as to their assets, combined with the personal liability undertaken by Mr Pszczonka, the balance of convenience favours dismissal of the freezing order application. The plaintiff did not bargain for security and the risk inherent in property development does not, on the evidence, justify Mareva relief.

Jurisdiction
Australia
Judgment Date
30 November 2023
Procedural Posture
Interlocutory Application / Summons / Decision on Application for Freezing Order; Decision on Notice of Motion to Strike Out/dismiss
Outcome
Plaintiff’s interlocutory application for a freezing order dismissed (subject to defendant and associated parties providing undertakings and a representation to the Court); Defendant’s notice of motion also dismissed.
Legal Topics
['freezing Orders' 'interlocutory Injunctions' 'real Estate Agency Commissions' 'procedural Competency' 'undertakings to Court']
['civil Procedure' 'equity'] ['freezing Orders' 'interlocutory Injunctions' 'real Estate Agency Commissions' 'procedural Competency' 'undertakings to Court']

Case Brief

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Procedural Posture

Interlocutory Application / Summons / Decision on Application for Freezing Order; Decision on Notice of Motion to Strike Out/dismiss

Legal Issues

  1. 1 ["Whether the defendant's undertakings to the Court provide adequate protection to the plaintiff in lieu of a freezing order" 'Whether a freezing order should be granted against the defendant to preserve assets pending resolution of the plaintiff’s commission claim' 'Whether proceedings are incompetent for lack of compliance with s 36 of the Property and Stock Agents Act 2002 (NSW)']

Ratio Decidendi

The undertakings to the Court offered by the defendant and associated parties (Rise SWR and Mr Pszczonka) are sufficient in the circumstances to give the plaintiff equivalent protection to that of a freezing order, obviating the need to grant such an order. As the defendant is a special purpose vehicle and Rise SWR has sufficient equity, and given the undertakings and representation as to their assets, combined with the personal liability undertaken by Mr Pszczonka, the balance of convenience favours dismissal of the freezing order application. The plaintiff did not bargain for security and the risk inherent in property development does not, on the evidence, justify Mareva relief.

Court Disposition

Plaintiff’s interlocutory application for a freezing order dismissed (subject to defendant and associated parties providing undertakings and a representation to the Court); Defendant’s notice of motion also dismissed.

Orders

  • ['Rise SWR undertakes to guarantee the defendant’s obligation to the plaintiff up to $1,959,728.62 less amounts paid since 25 September 2023, if not paid by defendant, within 30 days of plaintiff’s written demand.' 'Rise SWR undertakes not to dispose of or encumber its interest in the specified property so as to...