William Property Pty Ltd v Baserite Constructions Pty Ltd [2023] NSWSC 1605

Supreme Court New South Wales

Medium Neutral Citation: William Property Pty Ltd v Baserite Constructions Pty Ltd [2023] NSWSC 1605 Hearing dates: 23 November 2023 Date of orders: 23 November 2023 Decision date: 23 November 2023 Jurisdiction: Equity - Technology and Construction List Before: Rees J Decision: Refuse application to vary freezing orders and interlocutory injunction Catchwords: CIVIL PROCEDURE — Interim preservation — Freezing orders — Injunction — Variation of — Whether serious question to be tried — Where transfers made to family members while proceedings on foot — Where evidence of undervaluation — Serious question to be tried Legislation Cited: Conveyancing Act 1919 (NSW), s 37A Category: Procedural rulings Parties: William Property Pty Ltd (Plaintiff) Baserite Constructions Pty Ltd (First Defendant) Milad Ayoub (Second Defendant) Sharon Ayoub (Third Defendant) Joseph Ayoub (Sixth Defendant) Nicholas Ayoub (Seventh Defendant) Sarah Ayoub (Eighth Defendant) Representation: Counsel: Mr M Ashhurst SC/Mr MT Keene (Plaintiff) Mr D Ratnam (Defendants)

Solicitors: BCP Lawyers & Consultants (Plaintiff) HWL Ebsworth Lawyers (Defendants) File Number(s): 2021/290814

Ex tempore JUDGMENT 1. HER HONOUR: This is an application by defendants affected by a freezing order and interlocutory injunction to vary those orders.

Substantive proceedings 1. The plaintiff engaged the first defendant, Baserite Constructions Pty Ltd, to construct two developments: one in Beaconsfield and the other in Alexandria. Both developments are said to have building defects. These proceedings were commenced in October 2021. The plaintiff seeks judgment against Baserite Constructions for $2,194,500 on account of liquidated damages under the Alexandria construction contract. 2. The second defendant, Milad Ayoub, is the sole director and shareholder of Baserite Constructions. The third defendant, Sharon Ayoub, is the secretary of Baserite Constructions and the wife of Mr Ayoub. The plaintiff also seeks damages from Mr and Mrs Ayoub under a guarantee and indemnity given in respect of the Alexandria construction contract, together with damages against Mr Ayoub under a guarantee and indemnity given in respect of the Beaconsfield project. 3. Other contractors were joined as the fourth and fifth defendants, but are not relevant for present purposes. In this judgment, I will refer to the first to third defendants as "the defendants". The claim against these defendants presently stands at some $13 million. 4. In May 2022, the defendants filed a Technology and Construction List Response, together with various cross-claims. In June 2022, the defendants filed an Amended Technology and Construction List Response and a further cross-claim. In August 2022, directions were made for the defendants to file their evidence. In December 2022, directions were made for the plaintiff to file reply evidence. 5. On 7 March 2023, the defendants' solicitors file notices of ceasing to act. The matter was listed for directions on 14 April 2023, 5 May 2023 and 2 June 2023. There was no appearance for the defendants.