Schein by his Tutor Francoise Bale v Kimberly Development and others [2019] NSWSC 19

Schein by his Tutor Francoise Bale v Kimberly Development and others [2019] NSWSC 19

The plaintiff established, at the preliminary level, a sufficient basis for freezing orders over the relevant bank account and real property because the first and second defendants controlled the property, the first defendant had mortgaged it, the first and fourth defendants had been validly served but had not appeared, there was evidence concerning the second defendant's service position and possible threats, and the short duration of the orders meant little likely prejudice; the plaintiff's inability to support the undertaking as to damages did not prevent relief in the circumstances.

Jurisdiction
Australia
Judgment Date
18 January 2019
Procedural Posture
Equity Proceedings Seeking Interim Freezing Orders / Ex Tempore Judgment on Interim Freezing Orders
Outcome
Orders in accordance with Short Minutes of Orders.
Legal Topics
['interim Freezing Orders' 'no Question Principle' 'undue Influence' 'unfair Contract' 'statutory Unconscionable Conduct' 'contracts Review Act Relief']
['civil Procedure' 'equity' 'consumer Law' 'contracts'] ['interim Freezing Orders' 'no Question Principle' 'undue Influence' 'unfair Contract' 'statutory Unconscionable Conduct' 'contracts Review Act Relief']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Interim Freezing Orders / Ex Tempore Judgment on Interim Freezing Orders

Legal Issues

  1. 1 ['Whether the plaintiff had made out a preliminary case for interim freezing orders over the bank account and real property.' 'Whether freezing orders should be made despite the plaintiff and tutor being unable to support the undertaking as to damages with assets or cash.']

Ratio Decidendi

The plaintiff established, at the preliminary level, a sufficient basis for freezing orders over the relevant bank account and real property because the first and second defendants controlled the property, the first defendant had mortgaged it, the first and fourth defendants had been validly served but had not appeared, there was evidence concerning the second defendant's service position and possible threats, and the short duration of the orders meant little likely prejudice; the plaintiff's inability to support the undertaking as to damages did not prevent relief in the circumstances.

Court Disposition

Orders in accordance with Short Minutes of Orders.

Orders

  • ['Freezing orders made in relation to the bank account and real property referred to in paragraphs 3 and 4 of the form of order handed up by counsel.' 'Matter proposed to return before the Duty Judge in Equity the following Wednesday to determine whether the orders ought to be continued.']