Tomasetti v Brailey

[2012] NSWCA 6

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Interlocutory orders
3. › Freezing orders (Mareva injunctions)
4. › Appellate jurisdiction
5. › Power of Court of Appeal to grant freezing order
6. › Application by unsuccessful appellant pending appeal
7. › Whether appellate court has jurisdiction
8. › Uniform Civil Procedure Rules 2005 (NSW), r 25.14
9. › Supreme Court Act 1970 (NSW), ss 25, 38
1. Practice and Procedure
2. › Interlocutory orders
3. › Freezing orders (Mareva injunctions)
4. › Risk of dissipation of assets
5. › Whether refusal to give undertaking not to dispose of assets is in itself sufficient evidence of risk of dissipation
6. › Uniform Civil Procedure Rules 2005 (NSW), r 25.14
1. Practice and Procedure
2. › Interlocutory orders
3. › Freezing orders (Mareva injunctions)
4. › Good arguable case requirement
5. › How requirement applies where appellant has failed at trial
6. › Whether court should assess prospects of appeal

Quick Take

An appellate court has jurisdiction to grant a freezing order on the application of an appellant who has failed at trial, but the requirements of UCPR 25.14 must be independently established. A respondent's refusal to give an undertaking not to dispose of assets is not, standing alone, sufficient evidence of a risk of dissipation to warrant a freezing order; there must be additional evidence going to the prospect of dissipation. The question of how the good arguable case requirement applies where the applicant has been unsuccessful at trial was expressly left open.