Shi v Cheng [2017] NSWSC 1004

Shi v Cheng [2017] NSWSC 1004

The plaintiff established a basis for an ex parte freezing order because the evidence showed a good arguable case on the Deed of Loan and a danger that proceeds connected with Apartment 306, the defendant's only known Australian asset, might be released to the defendant and dissipated before judgment. However, a personal freezing order against the defendant was unnecessary and potentially counterproductive because the stakeholder-held deposit was sufficient to preserve funds for any prospective judgment, so the appropriate order was limited to restraining Palmasgold Pty Ltd from paying remaining sale proceeds to the defendant until further order.

Jurisdiction
Australia
Judgment Date
28 July 2017
Procedural Posture
Civil Procedure Interlocutory Application for Freezing Orders / Ex Parte Application
Outcome
Freezing order granted against Palmasgold Pty Ltd until further order; personal freezing order against the defendant declined; costs reserved.
Legal Topics
['freezing Orders' 'ex Parte Applications' 'loan Deed' 'dissipation of Assets' 'stakeholder Held Sale Proceeds']
['civil Procedure' 'contract'] ['freezing Orders' 'ex Parte Applications' 'loan Deed' 'dissipation of Assets' 'stakeholder Held Sale Proceeds']

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Procedural Posture

Civil Procedure Interlocutory Application for Freezing Orders / Ex Parte Application

Legal Issues

  1. 1 ['Whether the application for freezing orders should be heard ex parte.' 'Whether the plaintiff had a good arguable case that the defendant was in breach of the Deed of Loan.' 'Whether there was a danger that assets would be disposed of or dealt with so that any judgment would not be satisfied.' 'Whether the balance of convenience supported making a freezing order and the scope of any such order.']

Ratio Decidendi

The plaintiff established a basis for an ex parte freezing order because the evidence showed a good arguable case on the Deed of Loan and a danger that proceeds connected with Apartment 306, the defendant's only known Australian asset, might be released to the defendant and dissipated before judgment. However, a personal freezing order against the defendant was unnecessary and potentially counterproductive because the stakeholder-held deposit was sufficient to preserve funds for any prospective judgment, so the appropriate order was limited to restraining Palmasgold Pty Ltd from paying remaining sale proceeds to the defendant until further order.

Court Disposition

Freezing order granted against Palmasgold Pty Ltd until further order; personal freezing order against the defendant declined; costs reserved.

Orders

  • ['Until further order, and upon the Plaintiff by its counsel giving to the Court the usual undertaking as to damages, Palmasgold Pty Ltd (ACN 096 307 470) be restrained from paying to the Defendant, his servant or agent, any proceeds which remain after agent fees and other expenses have been paid from the sale of...