Hewitt v McClymont (No 2) [2024] NSWSC 1453

Supreme Court New South Wales

Medium Neutral Citation: Hewitt v McClymont (No 2) [2024] NSWSC 1453 Hearing dates: 1 November 2024; last submissions 12 November 2024 Date of orders: 18 November 2024 Decision date: 18 November 2024 Jurisdiction: Equity - Expedition List Before: Rees J Decision: Dismiss application to discharge freezing order; vary freezing order. Catchwords: MAREVA ORDER – application to discharge or vary – principles at [77]-[78] – uncontested freezing order made against trustee of superannuation fund given $770,000 in "unexplained withdrawals" – defendant then participates in proceedings and gives an account – defendant alleges that withdrawals have now been explained by his account – plaintiff challenges account – whether freezing order should be reduced to balance of unpaid costs order – discharge does not accord with dictates of justice where plaintiff continues to have good arguable case and risk of asset disposal remains. EQUITY – common form of account – procedure at [81]-[83] – proceedings not concluded – the defendant having given an account, the Court must still take an account having regard to the plaintiff's challenge to that account. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98(4)(c), 107 Uniform Civil Procedure Rules 2005 (NSW), rr 15.3, 25.11, 36.16(2)(b), 46.9 Cases Cited: Break Fast Investments Pty Ltd v Gravity Ventures Pty Ltd [2013] VSC 89 Deputy Commissioner of Taxation v Huang (No 4) [2022] FCA 618 Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95 Frigo v Culhaci [1998] NSWCA 88 Grace v Grace [2012] NSWSC 976 Juul v Northey [2010] NSWCA 211 Reeves v Reeves [2024] NSWSC 134 Russo v Russo [2015] NSWSC 17 SRG Civil Pty Ltd v Brolton Group Pty Ltd [2018] NSWSC 618 Torlonia v Wright [2016] NSWSC 1139 Texts Cited: James Watson, The Duty to Account: Developments and Principles (2016, Federation Press) page 104 Category: Procedural rulings Parties: Geoffrey Hewitt (Plaintiff) Scott McClymont (Defendant) Representation: Counsel: R Quickenden (Plaintiff) SJ Burchett (Defendant)