Antoun v Hanna (No 2) [2023] NSWSC 1096

Supreme Court New South Wales

Medium Neutral Citation: Antoun v Hanna (No 2) [2023] NSWSC 1096 Hearing dates: 11 July 2023 Date of orders: 08 September 2023 Decision date: 08 September 2023 Jurisdiction: Equity - Duty List Before: Robb J Decision: The Court will grant a freezing order against the respondent/fourth defendant without, at this stage of the proceedings, requiring the applicant/third defendant to give the usual undertaking as to damages for the reasons given. Catchwords: CIVIL PROCEDURE – interim preservation – freezing orders – ex parte applications – where the respondent has deprived a deceased estate of the value of a property in breach of orders of the then Federal Circuit Court of Australia – where the applicant seeks an ex parte freezing order to restrain the respondent from disposing of, dealing with or diminishing the value of her assets – where the applicant is not prepared to incur the risk involved in giving the usual undertaking as to damages as a condition of the Court making the freezing order sought – whether an ex parte freezing order should be made without requiring the applicant to offer the usual undertaking as to damages – consideration of the circumstances in which the Court may make ex parte freezing orders not supported by the usual undertaking as to damages – held that the circumstances of the present application are exceptional and justify the making of an ex parte freezing order without requiring the applicant to give the usual undertaking as to damages Legislation Cited: Succession Act 2006 (NSW), s 59, Pt 3.3 Uniform Civil Procedure Rules 2005 (NSW), rr 25.11(1), 25.14(1)(a), 25.14(6) Cases Cited: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [1981] HCA 75 Antoun v Antoun (No 3); Antoun v Hanna [2023] NSWSC 684 Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961 De Boer v Williams [2004] NSWSC 351 Frigo v Culhaci [1998] NSWCA 88 New Cap Reinsurance v Chase Manhattan (No 2) [1999] NSWSC 808 Southern Tableland Insurance Brokers Pty Ltd (in liq) v Schomberg (1986) 11 ACLR 337 Texts Cited: P Biscoe, Freezing & Search Orders: Mareva & Anton Piller Orders (2nd ed, 2008, LexisNexis Butterworths) Practice Note SC Gen 14 RP Meagher, JD Heydon and MJ Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4th ed, 2002, LexisNexis Butterworths) RP Meagher, JD Heydon and MJ Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths) Category: Procedural rulings Parties: Tarnya Antoun (First Plaintiff) Tamara Antoun (Second Plaintiff) Joseph Hanna (Third Defendant) Mary Antoun (Fourth Defendant) Representation: Counsel: R McCaw (Third Defendant)