FRIGO V CULHACI [1998] NSWCA 88

FRIGO V CULHACI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER JA and SHEPPARD AJA 29 June 1998, 17 July 1998 [1998] NSWCA 88

Error of law — failure to give reasons for decision Mareva injunctions — requirement for undertaking as to damages — grounds for — proper form Legal Practitioners — barristers — duty to court

Appeal and new trial — error of law — failure to give reasons for decision — dismissal of motion that mareva injunction be set aside

Evidence — inadmissibility — communication made in connection with an attempt to negotiate a settlement of the dispute — Evidence Act 1995, s131

Injunctions — mareva injunctions — requirement for undertaking as to damages — grounds for — standard of proof

Injunctions — mareva injunctions — proper form — provision for living expenses, payment of debts, legal expenses — maximum sum limit — qualification that injunction did not apply 'in the ordinary course of business"

Legal Practitioners — barristers — duty to court — undertaking as to damages — interlocutory injunction — order made ex parte — duty of full disclosure — dissolution of injunction

Mr Culhaci (plaintiff/respondent) contracted with Mr Frigo (appellant) and Mr Sica for them to construct six units on a property owned by Mr Culhaci. By early 1998 the parties were in dispute and the plaintiff terminated the contract on 17 February 1998. By Statement of Claim filed in the District Court on 20 May 1998 the plaintiff sued the appellant and Mr Sica for $162,803 damages, interest and costs. On the day of commencing proceedings the plaintiff moved ex parte for mareva injunctions against the defendants.

In the proceedings before his Honour Judge Christie QC, two affidavits were tendered by counsel for the plaintiff. The first affidavit was sworn by the solicitor for the plaintiff which proved that a home unit was transferred to the appellant in 1995 for $60,000 subject to a mortgage in favour of Westpac Banking Corporation. It was later transferred to the appellant's sister for $62,000, the transfer and fresh mortgage registered sometime before 25 March 1998.