McLeary v Swift [2013] NSWSC 216

McLeary v Swift [2013] NSWSC 216

The plaintiff established grounds for freezing orders because the defendant had failed to comply with Windeyer AJ's order, transferred beneficially owned shares to Astbury Enterprises Pty Ltd as trustee of a discretionary trust without explanation, and did not attend or give evidence explaining those transactions. The Court's freezing order power was sufficiently broad to respond to conduct apparently directed to placing assets beyond effective enforcement, and the orders would not give the plaintiff security over the assets.

Jurisdiction
Australia
Judgment Date
22 March 2013
Procedural Posture
Notice of Motion Seeking Freezing Orders / Interlocutory Motion After Judgment Pending Appeal
Outcome
Freezing order made
Legal Topics
['freezing Orders' 'interlocutory Injunctions' 'discretionary Trusts' 'orders Against Third Parties' 'affidavit Evidence and Cross Examination']
['equity' 'practice and Procedure'] ['freezing Orders' 'interlocutory Injunctions' 'discretionary Trusts' 'orders Against Third Parties' 'affidavit Evidence and Cross Examination']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion Seeking Freezing Orders / Interlocutory Motion After Judgment Pending Appeal

Legal Issues

  1. 1 ["Whether freezing orders should be made to prevent the defendant from dealing with property pending appeal where the plaintiff feared the judgment might be nullified by the defendant's activities." 'Whether a freezing order was available where property had been transferred to the trustee of a discretionary trust and the defendant was appointor and contingent beneficiary.' 'Whether making the freezing orders would impermissibly give the plaintiff security for the judgment.' "Whether the defendant's affidavit should be read when the defendant was unavailable for cross-examination and no timely notice to attend for cross-examination had been given."]

Ratio Decidendi

The plaintiff established grounds for freezing orders because the defendant had failed to comply with Windeyer AJ's order, transferred beneficially owned shares to Astbury Enterprises Pty Ltd as trustee of a discretionary trust without explanation, and did not attend or give evidence explaining those transactions. The Court's freezing order power was sufficiently broad to respond to conduct apparently directed to placing assets beyond effective enforcement, and the orders would not give the plaintiff security over the assets.

Court Disposition

Freezing order made

Orders

  • ["As against Astbury Enterprises Pty Ltd, that it not permit any dealing with its shares nor any disposal of assets or rights other than in the ordinary course of its ordinary business pending the disposal of these proceedings in the Court of Appeal with liberty to apply on 5 days' notice." "As against the...