Miller v LMG Building Pty Ltd [2023] NSWSC 1613

Miller v LMG Building Pty Ltd [2023] NSWSC 1613

The plaintiff had a good arguable case because Ball J had ordered repayment of the garnisheed funds and there was evidence of building defects. There was also a real risk that judgment would go unsatisfied because the evidence indicated a classic case of phoenixing: LMG Building's assets and business appeared to have been transferred to NCC Group for nil consideration, in timing connected with the plaintiff's efforts to recover the garnisheed funds, and NCC Group was run by Luke Glazenburg and his brother. It was therefore appropriate to continue the freezing order against NCC Group to prevent further asset dealings frustrating recovery.

Jurisdiction
Australia
Judgment Date
05 December 2023
Procedural Posture
Application to Continue Freezing Orders in the Equity Technology and Construction List / Inter Partes Hearing Following Ex Parte Freezing Orders Made on 30 November 2023
Outcome
Freezing order extended.
Legal Topics
['freezing Orders' 'phoenixing' 'asset Disposal to Frustrate Judgment' 'adjudication Determination' 'building Defects']
['civil Procedure' 'equity' 'building and Construction' 'insolvency'] ['freezing Orders' 'phoenixing' 'asset Disposal to Frustrate Judgment' 'adjudication Determination' 'building Defects']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application to Continue Freezing Orders in the Equity Technology and Construction List / Inter Partes Hearing Following Ex Parte Freezing Orders Made on 30 November 2023

Legal Issues

  1. 1 ['Whether the freezing order against NCC Group AU Pty Ltd should be extended notwithstanding its non-appearance.' 'Whether the plaintiff had established a good arguable case.' "Whether there was a risk that any judgment would go unsatisfied because assets may be disposed of or dealt with to put them beyond the plaintiff's reach."]

Ratio Decidendi

The plaintiff had a good arguable case because Ball J had ordered repayment of the garnisheed funds and there was evidence of building defects. There was also a real risk that judgment would go unsatisfied because the evidence indicated a classic case of phoenixing: LMG Building's assets and business appeared to have been transferred to NCC Group for nil consideration, in timing connected with the plaintiff's efforts to recover the garnisheed funds, and NCC Group was run by Luke Glazenburg and his brother. It was therefore appropriate to continue the freezing order against NCC Group to prevent further asset dealings frustrating recovery.

Court Disposition

Freezing order extended.

Orders

  • ['By consent, the freezing order against Luke Glazenburg was extended until 5pm on 9 February 2024.' 'Extend Order 3 made by Ball J on 30 November 2023 until further order.']