Iconic Constructions Australia Pty Ltd v Tomaras [2023] NSWSC 1572

Supreme Court New South Wales

Medium Neutral Citation: Iconic Constructions Australia Pty Ltd v Tomaras [2023] NSWSC 1572 Hearing dates: 7 December 2023 Date of orders: 7 December 2023 Decision date: 07 December 2023 Jurisdiction: Equity - Duty List Before: McGrath J Decision: Application to extend the operation of the freezing order declined Catchwords: CIVIL PROCEDURE — interim preservation — application for extension of freezing order Cases Cited: Frigo v Culhaci [1998] NSWCA 88 Severstal Export Gmbh v Bhushan Steel Ltd [2013] NSWCA 102 Category: Principal judgment Parties: Iconic Constructions Australia Pty Ltd (First Plaintiff) Sepideh Miraki (Second Plaintiff) John Tomaras (First Defendant) Dianne Tomaras (Second Defendant) William Roberts Lawyers (Third Defendant) Representation: Counsel: M W Young SC (First and Second Plaintiffs) M Ashurst SC and J McEnaney (First and Second Defendants)

Solicitors: Kekatos Lawyers (First and Second Plaintiffs) Tzovaras Legal (First and Second Defendants) K&L Gates (Third Defendant) File Number(s): 2023/00430763 Publication restriction: Nil

EX TEMPORE JUDGMENT (Revised) 1. On 28 November 2023, these proceedings were commenced by the filing in court of a summons by the plaintiffs, Iconic Constructions Australia Pty Ltd and Sepideh Miraki, against the first, second and third defendants, respectively John Tomaras, Dianne Tomaras and William Roberts Lawyers. 2. The plaintiffs then proceeded ex-parte before the Duty Judge to obtain a freezing order against the second defendant, Dianne Tomaras, in the following form contained in paragraphs 4 and 5 of the Penal Notice attached to the summons: 4. You must not in any way dispose of, deal with or diminish the value of the land comprised in folio identifier 10761-50 and known as 33 Temple Street, Stanmore NSW 2048 ("the Stanmore Property") until further order of the Court. 5. This order does not, however, prevent you from dealing with the Stanmore Property for the purpose of completing the current contract for sale of the Stanmore Property, provided that from the residue of the proceeds of the sale of that property (after the payment-out of any mortgages or other encumbrances over the Stanmore Property and the costs of sale) you either pay into Court or cause to be retained in a joint bank account in the name of your solicitor and the Plaintiffs' solicitor the sum of $1,280,500 (or the entirety of that residue, if that entirety is less than $1,280,500). 1. The summons was made returnable on 30 November 2023 before the Duty Judge, at which time the plaintiffs and the defendants were all represented. On that occasion, without admissions of any kind by any party, paragraphs 4 and 5 of the Penal Notice attached to the summons were varied as follows: 4. You must not in any way dispose of, deal with or diminish the value of the land comprised in folio identifier 10761-50 and known as 33 Temple Street, Stanmore NSW 2048 ("the Stanmore Property") until 5pm on Thursday, 7 December 2023. 5. This order does not, however, prevent you from dealing with the Stanmore Property for the purpose of completing the current contract for sale of the Stanmore Property, provided that from the residue of the proceeds of the sale of that property (after the payment-out of any mortgages or other encumbrances over the Stanmore Property and the costs of sale) you cause to be retained in a trust account in the name of your solicitor the sum of $1,280,500 with the sum of $1,280,500 not to be diminished. 1. As the varied form of the freezing order against the second defendant expires at 5pm today, the matter has come before me on an urgent basis. 2. Mr MW Young SC instructed by Kekatos Lawyers appeared for the plaintiffs. 3. Mr M Ashurst SC with Mr J McEnaney instructed by Tzovaras Legal appeared for the first and second defendants. 4. Mr M Thornell of K&L Gates appeared for the third defendant. 5. I was favoured with a significant amount of affidavit and documentary evidence, the vast majority of which I was not taken to by any party. The critical issue for me to determine is whether there should be an extension beyond 5pm today of the form of limited freezing order which is currently in place. 6. The plaintiffs bear the onus of establishing that, by reason of the defendants absconding or removing assets out of the jurisdiction, or disposing of assets within the jurisdiction, the plaintiffs will not be able to have the judgment satisfied if successful in the proceedings: see Frigo v Culhaci [1998] NSWCA 88 applied in Severstal Export Gmbh v Bhushan Steel Ltd [2013] NSWCA 102 at [57]. 7. Although much of the hearing before me concentrated on the nature of the claims which have been brought by the plaintiffs, I consider that it can be determined at the threshold issue that the plaintiffs have failed to prove to the requisite degree that there is a real danger of the second defendant disposing of assets within the jurisdiction that would leave any judgment in favour of the plaintiffs unsatisfied. 8. The only evidence on which the plaintiffs relied to meet their onus was that the Stanmore Property had recently been sold and that Mr John Tomaras had made an alleged threat during a conversation with the Navid Miraki-Ardestani (the ex-husband of the second plaintiff) sometime in the past 6 months where he referred to selling the Stanmore Property and said the words "I am going to make sure that you and Sepideh never see a cent of the money from the sale". 9. Mr Tomaras hotly disputes ever making such a statement. Whether or not that statement was made is not something that I can resolve in an interlocutory hearing of this sort. 10. The matter, to my mind, is put to rest by other evidence given by Mr Tomaras that the reason why the Stanmore Property was sold was that he and Mrs Tomaras had intended to do renovations to that property but decided not to do so when Mrs Tomaras was diagnosed with breast cancer on 10 August 2023 and they considered that the stress of the proposed development would be too much during her lengthy period of treatment and recovery. Mr Tomaras indicated that the funds from the Stanmore Property sale (due to complete on about 22 December 2023) are to be used by Mrs Tomaras to purchase a three-bedroom unit at Breakfast Point which they contracted to do on 12 October 2023 with anticipated settlement of late February 2024. 11. Save for the grave and unfortunate position in which Mrs Tomaras has found herself, the sale of the Stanmore Property and the purchase of the Breakfast Point property appear to be nothing other than one family home being sold and another family home being purchased. 12. There is no evidence before me, even by inference, that what has been done by Mrs Tomaras indicates a real danger of asset dissipation by her, whatever may or may not have been said by Mr Tomaras about ensuring that there will not be a cent of the money from the sale of the Stanmore Property available to satisfy any judgment that the plaintiffs may obtain against the defendants following a final hearing. In my judgment, the actual actions of Mrs Tomaras speak much louder than the alleged words of Mr Tomaras. 13. Freezing orders should not be lightly made or lightly extended. I am not satisfied that the one that has been made in this case should remain in place. 14. In those circumstances, I do not propose to grant any extension of the form of freezing order made on 30 November 2023.