The Owners – Strata Plan No 98970 v Capitol Property Services Pty Ltd [2021] NSWSC 950

Supreme Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan No 98970 v Capitol Property Services Pty Ltd [2021] NSWSC 950 Hearing dates: 30 July 2021 Date of orders: 2 August 2021 Decision date: 02 August 2021 Jurisdiction: Equity - Commercial List Before: Williams J Decision: See orders at [54]. Catchwords: ASSET PRESERVATION ORDER – no issue of principle. Legislation Cited: Conveyancing Act 1919 (NSW), s 37A Home Building Act 1989 (NSW), Part 2C Strata Schemes Management Act 2015 (NSW), s 8 Uniform Civil Procedure Rules 2005 (NSW), rr 25.11 to 25.14 Cases Cited: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Category: Procedural rulings Parties: The Owners – Strata Plan No 98970 (Plaintiff) Capitol Property Services Pty Ltd (ACN 140 517 362) (First Defendant) Lotus Fund No 9 Pty Ltd (CAN 608 721 820) (Second Defendant) Representation: Counsel: Mr J Knackstredt (Plaintiff) N/A (First Defendant) Mr F Hicks SC with Ms B Anderson (Second Defendant)

Solicitors: Bannermans Lawyers (Plaintiff) N/A (First Defendant) Project Lawyers (Second Defendant) File Number(s): 2021/97602 Publication restriction: N/A

Judgment

Introduction 1. The plaintiff applies for the continuation of a freezing order made ex parte on 1 June 2021 against the second defendant and Mr Kunyi Qui (who is also known as Edward Qiu). Mr Qiu is a respondent to the plaintiff's application for the freezing order but is not otherwise a party to these proceedings. 2. The second defendant and Mr Qiu do not oppose the continuation of a freezing order, but contend that the value of the second defendant's assets to which the order applies should be reduced to $800,000 and that the order should be discharged insofar as it relates to Mr Qiu provided that the second defendant pays into a solicitor's trust account a further sum of $200,000 and on Mr Qiu undertaking to the Court that he will give the plaintiff seven days' prior notice of any dealing with specified real property. 3. As I will refer to in more detail below, the issue concerning the value of the assets to which the freezing order should apply arises in circumstances where the plaintiff is not yet in a position to provide anything more than a preliminary estimate of the quantum of its claims in these proceedings. 4. The decision I have come to is that, on the usual undertaking as to damages and on the plaintiff's undertaking to commence as soon as reasonably practicable proceedings under s 37A of the Conveyancing Act 1919 (NSW) in relation to the transaction that triggered the plaintiff's application for the freezing order, the order should continue in its present form for a period of four months. It will be open to the plaintiff to apply to have the order extended beyond that period. 5. In order to explain the reasons for my decision, it is necessary to set out a brief description of the nature of the proceedings and the role of the parties and Mr Qiu in the events that are the subject of the proceedings and in the transaction that gave rise to the plaintiff's application for the freezing order on 1 June 2021.