In the matter of The Summit Hotel Bondi Beach Pty Ltd (No 2) [2023] NSWSC 487

Supreme Court New South Wales

Medium Neutral Citation: In the matter of The Summit Hotel Bondi Beach Pty Ltd (No 2) [2023] NSWSC 487 Hearing dates: 10 and 15 March 2023, 5 April 2023 Decision date: 09 May 2023 Jurisdiction: Equity - Corporations List Before: Robb J Decision: The Court will make orders substantially in the form of the offer made by the second, fourth and fifth defendants in the revised short minutes of order that they provided to the Court, including that the order sought in prayer 1 of the interlocutory process contain a $10 million carveout: see [82]-[84] below. See [187]-[202] below for issues that must be addressed that are relevant to the formulation of the orders to be made by the Court to give effect to these reasons. See [208] below as to the costs of the application on the interlocutory process. The parties are invited to confer for the purpose of agreeing short minutes of order to give effect to these reasons, and in the absence of agreement to request the Associate to Robb J to relist the matter for further submissions. Catchwords: CIVIL PROCEDURE — interim preservation — freezing orders — against third parties — where shareholder seeks freezing order against third party company — where defendants consent subject to a carveout to pay company's liabilities — where secured undertaking offered Legislation Cited: Civil Procedure Act 2005 (NSW), s 3(1) Corporations Act 2001 (Cth), ss 232, 233, 234(a), 461(1), Part 2F.1A Limitation Act 1969 (NSW), s 54 Supreme Court Act 1970 (NSW), s 66 Uniform Civil Procedure Rules 2005 (NSW), rr 25.3, 25.11, 25.14 Cases Cited: Apostolidis v Kalenik (2011) 35 VR 563; [2011] VSCA 307 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Australian Securities and Investments Corporation v Letten (No 10) [2011] FCA 498 BCI Finances Pty Ltd (in liq) v Binetter (No 3) [2015] FCA 1336 Bloc (ACT) Pty Ltd v Crafted Capitol Pty Ltd [2021] ACTSC 81 Caboche v Southern Equities Corporation Ltd [2001] SASC 55 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 Davis v Turning Properties Pty Ltd [2005] NSWSC 742; (2005) 222 ALR 676 Deputy Commissioner of Taxation v Huang [2021] HCA 43; (2021) 395 ALR 616 Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672 Hylepin Pty Ltd v Doshay Pty Ltd [2020] FCA 1370; (2020) 148 ACSR 30 In the matter of Bicher & Son Pty Ltd [2020] NSWSC 711 In the matter of C & L Cameron Pty Ltd – GB Gazzana v Nadalan Enterprises Pty Ltd; AF Gazzana v Nadalan Enterprises Pty Ltd [2012] NSWSC 676 In the matter of HPack Investments Pty Ltd [2020] NSWSC 1638; (2020) 149 ACSR 303 In the matter of The Summit Hotel Bondi Beach Pty Ltd [2023] NSWSC 295 Lawfund Australia Pty Ltd v Lawfund Leasing Pty Ltd [2008] NSWSC 144; (2008) 66 ACSR 1 Myers v Design Inc (International) Ltd [2003] EWHC 103 (Ch); [2003] 1 WLR 1642 National Australia Bank Ltd v Human Group Pty Ltd (No 2) [2020] NSWSC 1900 Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR; [1998] HCA 30 Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; [2015] HCA 36 Ratul v Islam; In the matter of Australian Real Estate Relation Pty Ltd [2023] NSWSC 78 Sayed v Hemat [2011] WASC 183 Texts Cited: P Biscoe, Freezing and Search Orders (3rd ed, 2023, LexisNexis) Practice Note SC Gen 14 Practice Note SC Gen 16 RP Austin and AJ Black, Austin & Black's Annotations to the Corporations Act (LexisNexis) Category: Procedural rulings Parties: Efrem Harkham (First Plaintiff) 10-12 Campbell Parade Pty Ltd (Second Plaintiff) The Summit Hotel Bondi Beach Pty Ltd (First Defendant) HK Empire Pty Ltd (Second Defendant) Patglen Pty Ltd (Third Defendant) Terry Harkham (Fourth Defendant) Geraldine Harkham (Fifth Defendant) Representation: Counsel: GA Sirtes SC/PD Reynolds (Plaintiffs) DR Sulan SC/L Rich (Second, Fourth and Fifth Defendant) J Whealing (First and Third Defendant)