France v Siekaup (No 3) [2021] NSWSC 497

France v Siekaup (No 3) [2021] NSWSC 497

The Court refused to limit the freezing order to assets held by Sieve-Storm Pty Ltd as trustee for the Affordable Property Trust. The words "your assets" were open to extend to all assets in respect of which Sieve-Storm Pty Ltd was registered proprietor and held legal title, including assets of the Sieve-Storm Trust. It was also seriously arguable that Sieve-Storm Pty Ltd incurred the judgment debt as trustee for the Sieve-Storm Trust and may have a right of indemnity over those trust assets, so excluding them from the freezing order would create a risk that the plaintiff's rights might be defeated. However, the freezing order was ambiguous as drafted.

Jurisdiction
Australia
Judgment Date
07 May 2021
Procedural Posture
Civil Procedure Interim Preservation Freezing Orders / Duty List Hearing About the Ambit and Extent of a Freezing Order After Judgment and Pending Appeal
Outcome
Limitation on freezing orders sought by the defendants refused; the Court found the freezing order ambiguous and indicated it would hear the parties on costs.
Legal Topics
['freezing Orders' 'trust Assets' 'misdescription of Trustee Capacity' 'judgment Enforcement' 'right of Indemnity of Trustee' 'ambiguity of Court Orders']
['civil Procedure' 'equity' 'trusts'] ['freezing Orders' 'trust Assets' 'misdescription of Trustee Capacity' 'judgment Enforcement' 'right of Indemnity of Trustee' 'ambiguity of Court Orders']

Case Brief

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Procedural Posture

Civil Procedure Interim Preservation Freezing Orders / Duty List Hearing About the Ambit and Extent of a Freezing Order After Judgment and Pending Appeal

Legal Issues

  1. 1 ['Whether the freezing order against Sieve-Storm Pty Ltd should be limited to assets held as trustee of the Affordable Property Trust and not extend to assets held as trustee of the Sieve-Storm Trust.' 'Whether property held by Sieve-Storm Pty Ltd as trustee for the Sieve-Storm Trust was caught by the freezing order despite the second defendant being misdescribed as trustee for the Affordable Property Trust.' 'Whether the freezing order as drafted was ambiguous.']

Ratio Decidendi

The Court refused to limit the freezing order to assets held by Sieve-Storm Pty Ltd as trustee for the Affordable Property Trust. The words "your assets" were open to extend to all assets in respect of which Sieve-Storm Pty Ltd was registered proprietor and held legal title, including assets of the Sieve-Storm Trust. It was also seriously arguable that Sieve-Storm Pty Ltd incurred the judgment debt as trustee for the Sieve-Storm Trust and may have a right of indemnity over those trust assets, so excluding them from the freezing order would create a risk that the plaintiff's rights might be defeated. However, the freezing order was ambiguous as drafted.

Court Disposition

Limitation on freezing orders sought by the defendants refused; the Court found the freezing order ambiguous and indicated it would hear the parties on costs.

Orders

  • ['The freezing order should not be limited to assets held by Sieve-Storm Pty Ltd as trustee for the Affordable Property Trust.' 'The Court would hear the parties on costs.']