Mohana-Reslan v Halvajieff [2012] NSWDC 124

Mohana-Reslan v Halvajieff [2012] NSWDC 124

The listing of the defendant's property for auction, together with the failure to respond to the plaintiff's correspondence or advise of the auction, indicated that the defendant was dealing with his assets either in an irregular way or with the intention of frustrating the orders of the court in the hearing of the claim. Given the urgency, interim freezing and cancellation orders were justified until the return date when the defendant could be heard.

Jurisdiction
Australia
Judgment Date
28 August 2012
Procedural Posture
Civil Negligence Proceedings; Interlocutory Application for Freezing Order / Interim Preservation Order / Urgent Ex Parte Notice of Motion Filed 27 August 2012, Heard 28 August 2012
Outcome
Interim freezing order and related urgent orders granted; proceedings stood over for further mention; costs reserved.
Legal Topics
['freezing Order Under Uniform Civil Procedure Rules 2005 (nsw)' 'interim Preservation of Assets' 'good Arguable Case' 'risk That Judgment or Prospective Judgment Will Be Unsatisfied' 'urgent Ex Parte Relief']
['civil Procedure' 'injunctions' 'asset Preservation Orders' 'negligence'] ['freezing Order Under Uniform Civil Procedure Rules 2005 (nsw)' 'interim Preservation of Assets' 'good Arguable Case' 'risk That Judgment or Prospective Judgment Will Be Unsatisfied' 'urgent Ex Parte Relief']

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Procedural Posture

Civil Negligence Proceedings; Interlocutory Application for Freezing Order / Interim Preservation Order / Urgent Ex Parte Notice of Motion Filed 27 August 2012, Heard 28 August 2012

Legal Issues

  1. 1 ['Whether the plaintiff should be granted an urgent interim freezing order restraining the defendant from selling or otherwise dealing with identified real property pending resolution of the proceedings.' 'Whether the circumstances of the defendant listing property for auction without notifying the plaintiff, and not responding to correspondence, indicated a danger that a judgment or prospective judgment would be wholly or partly unsatisfied.']

Ratio Decidendi

The listing of the defendant's property for auction, together with the failure to respond to the plaintiff's correspondence or advise of the auction, indicated that the defendant was dealing with his assets either in an irregular way or with the intention of frustrating the orders of the court in the hearing of the claim. Given the urgency, interim freezing and cancellation orders were justified until the return date when the defendant could be heard.

Court Disposition

Interim freezing order and related urgent orders granted; proceedings stood over for further mention; costs reserved.

Orders

  • ['The defendant called outside Court 13D three times at 2:06pm - no response.' 'Until 5:00pm Friday 31 August 2012, upon the plaintiff, by its legal representatives, giving the usual undertaking as to damages, the defendant, by himself, his servants and agents, be restrained pursuant to r 25.11(1) Uniform Civil...