Wilden v Jennings (no 2) [2022] NSWDC 237

Wilden v Jennings (no 2) [2022] NSWDC 237

The Defendant failed to justify further variation of the Penal Notice because the need to encumber assets arose from his own prior transfers of substantial funds to Ms Harris, mostly without consideration, and the Court found that those transfers were made to dissipate or minimise assets in an attempt to avoid satisfying the Plaintiff's judgment. Ms Harris had financial capacity to return funds, the Defendant had not shown that funds were irrecoverable without security, and the proposed variation would substantially prejudice enforcement and conflict with the purpose of the freezing order.

Jurisdiction
Australia
Judgment Date
28 June 2022
Procedural Posture
Civil Application Concerning Variation of a Freezing Order Penal Notice / Defendant's Application to Further Vary the Penal Notice After Judgment and Pending Appeal
Outcome
Defendant's application to further vary the Penal Notice refused with costs payable to the Plaintiff.
Legal Topics
['variation of Penal Notice' 'encumbering Assets to Fund Legal Expenses' 'dissipation of Assets' 'stultification of Appeal' 'enforcement of Judgment']
['civil Procedure' 'freezing Orders' 'costs'] ['variation of Penal Notice' 'encumbering Assets to Fund Legal Expenses' 'dissipation of Assets' 'stultification of Appeal' 'enforcement of Judgment']

Case Brief

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Procedural Posture

Civil Application Concerning Variation of a Freezing Order Penal Notice / Defendant's Application to Further Vary the Penal Notice After Judgment and Pending Appeal

Legal Issues

  1. 1 ['Whether the Defendant should be permitted to further vary the Penal Notice to encumber real property assets to secure funds for legal expenses in prosecuting an appeal.' "Whether refusal of the variation would stultify the Defendant's appeal." "Whether the Defendant's prior transfers of substantial funds to Ms Harris justified refusing access to frozen assets." "Whether the proposed variation would prejudice the Plaintiff's ability to enforce the judgment."]

Ratio Decidendi

The Defendant failed to justify further variation of the Penal Notice because the need to encumber assets arose from his own prior transfers of substantial funds to Ms Harris, mostly without consideration, and the Court found that those transfers were made to dissipate or minimise assets in an attempt to avoid satisfying the Plaintiff's judgment. Ms Harris had financial capacity to return funds, the Defendant had not shown that funds were irrecoverable without security, and the proposed variation would substantially prejudice enforcement and conflict with the purpose of the freezing order.

Court Disposition

Defendant's application to further vary the Penal Notice refused with costs payable to the Plaintiff.

Orders

  • ["The Defendant's application to further vary the Penal Notice is refused." "The Defendant is to pay the Plaintiff's costs of this application." "In the event that the Defendant wishes to be heard against the order concerning costs, his solicitor is to notify my Associate and the Plaintiff's solicitor within 48...