Sivonen v Smith [2019] NSWSC 1794

Sivonen v Smith [2019] NSWSC 1794

Although the plaintiff had an arguable damages claim and might recover a significant sum, the evidence did not establish that the defendant sold property, or was likely to dispose of assets, for the purpose of frustrating the Court's processes or defeating enforcement of any prospective judgment. The evidence was that negotiations for the sale to the nephew commenced before notification of any claim and that the sale was not motivated by the plaintiff's potential claim. Mere concern or assertion that the defendant might dispose of assets was insufficient to justify the extraordinary interference of a freezing order.

Jurisdiction
Australia
Judgment Date
05 December 2019
Procedural Posture
Application by Summons for a Freezing Order Under R 25.11 of the Uniform Civil Procedure Rules 2005 (nsw) / Summons Heard on Notice; Proceedings for Damages Against the Defendant Had Not Yet Been Commenced
Outcome
Summons dismissed; plaintiff ordered to pay the defendant's costs.
Legal Topics
['freezing Orders' 'interim Preservation' 'risk of Dissipation of Assets' 'prospective Judgment' 'costs']
['civil Procedure' 'interim Remedies' 'personal Injury'] ['freezing Orders' 'interim Preservation' 'risk of Dissipation of Assets' 'prospective Judgment' 'costs']

Case Brief

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Procedural Posture

Application by Summons for a Freezing Order Under R 25.11 of the Uniform Civil Procedure Rules 2005 (nsw) / Summons Heard on Notice; Proceedings for Damages Against the Defendant Had Not Yet Been Commenced

Legal Issues

  1. 1 ['Whether the plaintiff should be granted a freezing order restraining the defendant from removing from Australia, disposing of, dealing with or diminishing the value of assets up to the unencumbered value of $1 million.' "Whether the plaintiff established by evidence that there was a real danger that any prospective judgment would be wholly or partially unsatisfied because the defendant might dispose of assets or otherwise frustrate the Court's process." "Whether the defendant's sale of the Hancocks Creek Road property to his nephew supported an inference that he was attempting to put assets beyond the plaintiff's reach."]

Ratio Decidendi

Although the plaintiff had an arguable damages claim and might recover a significant sum, the evidence did not establish that the defendant sold property, or was likely to dispose of assets, for the purpose of frustrating the Court's processes or defeating enforcement of any prospective judgment. The evidence was that negotiations for the sale to the nephew commenced before notification of any claim and that the sale was not motivated by the plaintiff's potential claim. Mere concern or assertion that the defendant might dispose of assets was insufficient to justify the extraordinary interference of a freezing order.

Court Disposition

Summons dismissed; plaintiff ordered to pay the defendant's costs.

Orders

  • ['The summons is dismissed.' "The plaintiff pay the defendant's costs."]