NJS v NSW Department of Education & Anor (No 2) [2018] NSWSC 2009

NJS v NSW Department of Education & Anor (No 2) [2018] NSWSC 2009

The freezing order was refused because the evidence did not establish a risk that the second defendant's assets would be dissipated. The recent sale of property was explained by obvious and legitimate reasons, including funding the defence of criminal proceedings, and alleged delay or lack of diligence did not establish any risk of dissipation. Costs followed the event because the plaintiff proceeded with the motion and failed.

Jurisdiction
Australia
Judgment Date
06 December 2018
Procedural Posture
Civil Procedure Application for Freezing Order / Notice of Motion Filed by the Plaintiff on 26 October 2018
Outcome
The plaintiff's notice of motion was dismissed, with costs payable to the second defendant.
Legal Topics
['freezing Orders' 'interlocutory Remedies' 'risk of Dissipation of Assets' 'costs of Motion']
['civil Procedure'] ['freezing Orders' 'interlocutory Remedies' 'risk of Dissipation of Assets' 'costs of Motion']

Case Brief

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Procedural Posture

Civil Procedure Application for Freezing Order / Notice of Motion Filed by the Plaintiff on 26 October 2018

Legal Issues

  1. 1 ["Whether the plaintiff had established by evidence a real risk that the second defendant's assets would be dissipated if a freezing order was not made." 'Whether delay or lack of diligence by the second defendant, and his recent sale of property, justified a freezing order.' 'Whether costs of the motion should follow the event.']

Ratio Decidendi

The freezing order was refused because the evidence did not establish a risk that the second defendant's assets would be dissipated. The recent sale of property was explained by obvious and legitimate reasons, including funding the defence of criminal proceedings, and alleged delay or lack of diligence did not establish any risk of dissipation. Costs followed the event because the plaintiff proceeded with the motion and failed.

Court Disposition

The plaintiff's notice of motion was dismissed, with costs payable to the second defendant.

Orders

  • ["The plaintiff's notice of motion filed on 26 October 2018 is dismissed." "The plaintiff is to pay the second defendant's costs of the motion as agreed or assessed."]