Stanizzo v Badarne (No 2) [2018] NSWSC 1908

Stanizzo v Badarne (No 2) [2018] NSWSC 1908

The Court dismissed the motion because the plaintiff failed to establish an adequate or proper basis for the freezing orders. The evidence did not show a good arguable malicious prosecution case against Muhammad Badarne, did not establish that the respondents' conduct created a danger that any prospective judgment would be unsatisfied, and did not establish a good arguable case that the property transfer was made with intent to defraud creditors. The serious allegations against the respondents were largely unsupported by evidence, while their affidavit evidence explaining the property transfer was uncontested.

Jurisdiction
Australia
Judgment Date
11 December 2018
Procedural Posture
Civil Proceedings; Interlocutory Application for Freezing Order in Malicious Prosecution Proceedings / Notice of Motion Filed 10 April 2018 Seeking a Freezing Order; Interim Application Previously Refused by Bellew J; Motion Heard for Final Orders
Outcome
The notice of motion was dismissed, with costs orders against the plaintiff.
Legal Topics
['freezing Order' 'good Arguable Case' 'malicious Prosecution' 'frustration of Court Process' 'voluntary Alienation to Defraud Creditors' 'costs']
['practice and Procedure' 'civil Procedure' 'torts'] ['freezing Order' 'good Arguable Case' 'malicious Prosecution' 'frustration of Court Process' 'voluntary Alienation to Defraud Creditors' 'costs']

Case Brief

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Procedural Posture

Civil Proceedings; Interlocutory Application for Freezing Order in Malicious Prosecution Proceedings / Notice of Motion Filed 10 April 2018 Seeking a Freezing Order; Interim Application Previously Refused by Bellew J; Motion Heard for Final Orders

Legal Issues

  1. 1 ['Whether the plaintiff had a good arguable case in the substantive malicious prosecution proceedings against Muhammad Badarne.' 'Whether there was a danger that a judgment or prospective judgment would be wholly or partly unsatisfied because assets might be removed, disposed of, dealt with or diminished in value.' 'Whether the conduct of Muhammad Badarne or Rowan Badarne revealed an intention to frustrate the processes of the Court.' 'Whether there was a good arguable basis for relief under s 37A of the Conveyancing Act 1919 (NSW) concerning the transfer of the Fairy Meadow property.' 'What costs orders should be made on dismissal of the notice of motion.']

Ratio Decidendi

The Court dismissed the motion because the plaintiff failed to establish an adequate or proper basis for the freezing orders. The evidence did not show a good arguable malicious prosecution case against Muhammad Badarne, did not establish that the respondents' conduct created a danger that any prospective judgment would be unsatisfied, and did not establish a good arguable case that the property transfer was made with intent to defraud creditors. The serious allegations against the respondents were largely unsupported by evidence, while their affidavit evidence explaining the property transfer was uncontested.

Court Disposition

The notice of motion was dismissed, with costs orders against the plaintiff.

Orders

  • ['The notice of motion is dismissed.' "The plaintiff is to pay the first respondent's costs." "The plaintiff is to pay the second respondent's costs. Those costs are payable forthwith."]