Industrial Relations Commission of New South Wales in Court Session CITATION: Neil Brooks v Peter Giddings Pty Limited and anor and Neil Brooks v Peter Giddings Pty Limited and ors [2007] NSWIRComm 277 APPLICANT (in both matters) Neil Brooks RESPONDENTS (in 1313 of 2005) PARTIES: Peter Giddings Pty Limited Peter Giddings RESPONDENTS (in 1314 of 2005) Peter Giddings Pty Limited Ealico Pty Limited Peter Giddings FILE NUMBER(S): 1313; 1314 of 2005 CORAM: Marks J CATCHWORDS: Unfair contract s106 proceedings - interlocutory proceedings - motion for Mareva orders - consideration of relevant principles of preservation orders - need to establish prima facie cause of action and danger of disposal of assets - applicant must establish entitlement to maintain substantive proceedings and satisfy court that it has jurisdiction to deal with claim as formulated - applicant has arguable case - serious question to be tried in context of proceedings - must be something of a definite nature that is indicative that dissipation of assets is a real possibility - respondents failed to honour a promise re availability of information re dissipation of assets - orders granted LEGISLATION CITED: Industrial Relations Act 1996 s106 ACCC v Chaste Corporation Pty Ltd [2003] FCA 180 Brown v Rezitis (1970) 127 CLR 157 BWK Elders (Aust) Pty Ltd v Westgate Wool Co Pty Ltd (No 2) [2001] FCA 1844 Cardile v LED Builders Pty Ltd [1999] HCA 18 Hadid v Lenfest Communications Inc (1996) FCR 446 CASES CITED: Jackson v Sterling Industries (1987) 162 CLR 612 National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990)169 CLR 271 Patrick Stevedores v Maritime Union of Australia (1998) 195 CLR 1 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Perth Mint v Mickelberg (No 2) [1985] WAR 117 Sydney City Council v Zegarac (1998) 43 NSWLR 195 Todd v Novotny and anor [2001] WASC 171 HEARING DATES: 30 October and 1 November 2007 DATE OF JUDGMENT: 14 November 2007 APPLICANT Mr A Britt of counsel Solicitor: Toomey Pegg Drevikovsky Mr R Pegg LEGAL REPRESENTATIVES: RESPONDENTS (in both matters) Mr P Moorhouse of counsel Solicitor: Yardy Legal Mr K Yardy JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Wednesday 14 November 2007 Matter No IRC 1313 of 2005 Neil Brooks v Peter Giddings Pty Limited and anor Application under s 106 of the Industrial Relations Act 1996 Matter No IRC 1314 of 2005 Neil Brooks v Peter Giddings Pty Limited and ors Application under s 106 of the Industrial Relations Act 1996 JUDGMENT ON APPLICATION FOR ASSET PRESERVATION ORDERS [2007] NSWIRComm 277 1 The applicant, Neil Brooks, has commenced two sets of proceedings in this Court claiming certain relief under s 106 of the Industrial Relations Act 1996 ("the Act"). In each of the proceedings, he has sought by motion to have asset preservation orders (commonly known as Mareva orders) made against certain of the respondents in each of the proceedings. The motions were heard together, with evidence in one being evidence in the other. The applicant submitted that he had a prima facie cause of action against the respondents in each of the proceedings and that there was a danger of the respondents, the subject of these interlocutory proceedings, disposing of assets within the jurisdiction or otherwise dealing with them in some fashion such that if he were to succeed in the substantive proceedings, he would not be able to have any payment of compensation satisfied. This judgment deals with both notices of motion. The substantive proceedings 2 It is first necessary to describe briefly the nature of each of the proceedings brought by the applicant. In matter no 1313 of 2005, the applicant Neil Brooks seeks relief against the first respondent Peter Giddings Pty Limited and the second respondent, Peter Giddings. The summons alleges that the first respondent operated a car rental business and that the second respondent was the sole director of the first respondent and, relevantly, all of the dealings which the applicant had with the first respondent are said to have occurred through the second respondent. The summons alleges that the applicant was employed as group general manager of the respondents' business, that he performed certain work accordingly, that following financial difficulties he agreed to a reduction in salary on a temporary basis, that he performed additional work as required by the first respondent and that when his employment was ultimately terminated the first respondent failed to pay him monies which in fairness should have been paid to him both during the subsistence of the contract and upon termination. The contractual arrangements subsisted from 28 August 2000 until 26 October 2004. The summons claims a payment of monetary compensation of an amount of approximately $450,000. The second respondent was said to be amenable to an order for the payment of money pursuant to the well known principles encapsulated in the decision of the High Court of Australia in Brown v Rezitis (1970) 127 CLR 157. 3 In matter no 1314 of 2005, the applicant also seeks relief under s 106 of the Act. There are three respondents, the first being Peter Giddings Pty Limited, the second Ealico Pty Limited ("Ealico") and the third Peter Giddings. These proceedings are based on alleged consultancy agreements made between the applicant and the third respondent, Peter Giddings, in his capacity as the sole director of and on behalf of the first and second respondents. The first consultancy agreement was said to have been made in about June 2001 with respect to the management of a property development project for a tavern and drive-in liquor store at 164 - 168 Parramatta Road, Ashfield, which was jointly owned by each of the three respondents. The summons alleges that the applicant was to be paid "the going rate" for project management consultancy and additional monies if the project was successful. The summons says that the consultancy agreement was extended in July 2001 whereby the applicant agreed to provide consultancy services regarding the management of a property development project for a house and townhouses on a site owned by Ealico at 186 - 190 Fairfield Street, Fairfield. It was said that this project was successfully completed in June 2004. The summons further alleges that in about April 2003, the consultancy agreement was further extended whereby the applicant agreed to provide consultancy services regarding the acquisition and management of a hotel at 191 Pitt Street, Redfern owned by Ealico. The agreement was terminated on 22 June 2004 on completion of the earlier project at Fairfield. The summons alleges that the applicant was not paid any project management fee for each of the three projects and that the contracts were unfair because their provisions allowed them to operate in a manner which created unfairness, particularly with respect to the failure to pay remuneration as allegedly agreed. The summons claims payment of about $305,000. The orders sought in the notices of motion. 4 In matter no 1313 of 2005, the applicant seeks orders restraining only the second respondent Peter Giddings by himself, his servants or agents from alienating, transferring, encumbering etc or otherwise adversely dealing with his interest in a property at 166 Parramatta Road, Ashfield. In matter no 1314 of 2005, the motion is directed to, firstly, the second respondent, Ealico and, secondly, the third respondent, Peter Giddings. As against Ealico, the motion seeks an order in the same form with respect to two properties, one at 191 Pitt Street, Redfern and the other at 168 Parramatta Road, Ashfield. With respect to the third respondent, Peter Giddings, the order sought is in identical terms, directed to the property at 166 Parramatta Road, Ashfield. The course of the interlocutory proceedings 5 The applicant tendered certain evidence for the purpose of these interlocutory proceedings. The respondents appeared through counsel to defend the proceedings but did not tender any evidence. The evidence is to the following effect: a) The respondent, Peter Giddings, is the sole director and secretary of Peter Giddings Pty Limited. He holds one share in that company, 9,999 shares being held by Hahudu Pty Ltd. b) Peter Giddings is the sole director and secretary of Hahudu Pty Ltd. The shares in Hahudu Pty Ltd are owned as to one each by Mr Giddings and Ealico. c) Peter Giddings is the sole director and secretary of Ealico. The shares in Ealico are owned as to one by Hahudu Pty Ltd and as to nine by Peter Giddings. d) Ealico does not appear to have filed an annual return since 31 January 2003. e) Peter Giddings Pty Limited does not appear to have filed an annual return since 31 January 2003. f) The only real property owned by Peter Giddings is the Ashfield property. By transfer dated 22 December 2006, Mr Giddings assigned a 39% share in that property to two persons, retaining a 61% share with them as tenants in common. The property is subject to a mortgage to the Uniting Church (NSW) Trust Association Limited. g) Peter Giddings Pty Limited had owned property at 164 Parramatta Road, Ashfield. That property was sold for $1,810,000. The memorandum of transfer does not bear any date but it was stamped by the Office of State Revenue on 22 December 2006. h) Ealico is the proprietor of two pieces of real estate. The first is at 191 Pitt Street, Redfern. As at 24 October 2007, that property is listed for sale through Laing + Simmons of Surry Hills for $1.5 million. Ealico also owns property at 168 Parramatta Road, Ashfield. i) Information provided by the Licensing Court of New South Wales is to the effect that Ealico is the owner of premises at 191 Pitt Street, Redfern and the owner of a business conducted at those premises. Up until 7 June 2007, Ealico had poker machine licences for 15 poker machines on those premises but had no such entitlements after 8 June 2007. j) By letter dated 30 August 2007, the applicant's solicitors wrote to the respondents' solicitor referring to the substantive proceedings and stating that they were instructed that since the proceedings had been commenced that Peter Giddings Pty Limited had disposed of its interest in the Parramatta Road, Ashfield property, that Peter Giddings had disposed of an interest in the Ashfield property and that Ealico had disposed of 15 poker machine licences attached to the Pitt Street, Redfern property and had that property on the market for sale and sought a response. k) The respondents' solicitor replied on 27 September 2007 referring to a conference with the applicant's solicitors on 6 September 2007. That letter pointed out that the respondents collectively owned six properties, only three of which had been sold. The letter also stated that the respondents were in the business of property development and that the purchase and sale of real estate was, in effect, an intricate part of that business. The letter stated that both corporate entities had shown a trading history of over 30 years. Furthermore, Mr Peter Giddings was said to hold property interests in relation to the property at Ashfield and "….Even though Mr Giddings does spend a substantial part of his time overseas, he continually returns to Australia for business matters and all his family are in Sydney…." The letter stated that any undertaking not to deal with the assets of the company or the personal assets of Mr Giddings may impact upon the ability of the companies to trade. The letter also suggested that the amounts claimed by the applicant constituted "a fraction of the value of the assets that the respondents currently hold. Your client's claim is such that is (sic) out of proportion of the assets sought to be frozen." l) Relevantly, the letter referred to the solicitors seeking instructions and, "….Following these instructions, we expect to have completed further detailed analysis of records from our client's accountant thereby being able to satisfy your client that our client is not systematically disposing of his assets." m) By letter dated 8 October 2007, the respondents' solicitor wrote to the applicant's solicitors referring to their letter of 27 September 2007 and stating, "We again note our client's instructions to liaise with his accountant with a view of (sic) further satisfying your client our client is not systematically disposing of his assets." The letter then went on to note that Mr Giddings' accountant was currently on annual leave and expected to return on Monday 15 October 2007. They expected a response "early next week". n) The applicant's notices of motion were filed on 26 October 2007. Asset preservation orders - relevant principles 6 There was no contention that this Court as a superior court of record, albeit of limited jurisdiction circumscribed by statute, has an inherent power to make orders for the preservation of assets designed to ensure that its proceedings are not frustrated by a respondent disposing of assets and thus depriving an applicant of the benefit of any compensation order. 7 The relevant principles have been the subject of consideration in the High Court of Australia. In Jackson v Sterling Industries (1987) 162 CLR 612, Wilson and Dawson JJ emphasised that orders of this kind "must be necessary to prevent the abuse of the process of the court. Difficulty, however, is in ascertaining the circumstances in which such an order should be made." 8 These circumstances were discussed by the New South Wales Court of Appeal in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319. In discussing the availability of such orders, Gleeson CJ (as his Honour then was) said: "The remedy is discretionary, but it has been held that, in addition to any other considerations that may be relevant in the circumstances of a particular case, as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant's absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied." (At 321-2) 9 I now turn to a consideration and application of the relevant principles. Prima facie cause of action against the respondents 10 The only material before the Court with respect to this aspect is the summonses, the nature of which I have summarised above. Each of the summonses is verified on oath, as required by the Rules of this Court. 11 In essence, in matter no 1313 of 2005, there is an allegation of a contract that, prima facie, is one which satisfies the provisions of s 106. The claim is based on allegations of unfairness, which are within the jurisprudence of this Court. On its face, therefore, the summons contains reference to factual material, assertions of unfairness and claims for consequential relief that are, on a prima facie basis, within the jurisdiction and power of this Court under s 106. The same comment may be made with respect to the proceedings in matter no 1314 of 2005. 12 I have not proceeded to deal with these matters in any greater detail because the respondents' submissions on this aspect centred around the extent of the relief sought. In particular, the respondents emphasised that the work that was said to be performed in matter no 1314 was allegedly undertaken concurrently with the full time work that the applicant asserted that he performed in matter no 1313. The respondents emphasised that the claims in both matters arose out of work performed during the same discrete periods. 13 Whilst the potential quantum of any claim might arguably assume some significance in terms of the refinement of any orders to be made as sought by the applicant in these interlocutory proceedings, such an argument does not currently impact upon a consideration as to whether the applicant has a prima facie case. 14 The respondents did not submit that I was precluded from considering this aspect of the matter by reason only of reliance by the applicant on the material contained in each of the summonses. I was informed by counsel that in each of the proceedings all of the relevant affidavit material has been filed. Neither counsel for the applicant or for the respondents took me to any of that material. 15 There does not seem to be any particular approach demonstrated by decided cases as to the nature and extent of evidentiary material that should be put before the court in determining whether to make orders of the kind sought in these interlocutory proceedings. In some cases, the court will look at documentary material that obviously forms the basis for the substantive proceedings (see, for example, ACCC v Chaste Corporation Pty Ltd [2003] FCA 180, Spender J in Federal Court of Australia). In others the court has been taken to what appears to be evidentiary material filed in the substantive proceedings (See BWK Elders (Aust) Pty Ltd v Westgate Wool Co Pty Ltd (No 2) [2001] FCA 1844, Mansfield J in the Federal Court of Australia, and Todd v Novotny and anor [2001] WASC 171, Parker J in the Supreme Court of Western Australia). 16 Having regard to the assertions of fact contained within the summons, as verified, and having been taken to no other material by any of the parties, and having regard to the approach taken on behalf of the respondents during the conduct of these interlocutory proceedings, I intend, therefore, to approach the matter by reference only to the material in the summons. 17 I should add for completeness that although I have approached this matter on the basis of whether there is a prima facie cause of action, adopting the words used by Gleeson CJ in Patterson, I acknowledge that there have been other formulations of the strength of a plaintiff or applicant's case, in terms of the assessment that needs to be made when considering making an order of this kind pre-judgment. In Patterson, Rogers AJA dealt briefly with the history of the orders and the approach adopted in the English courts. His Honour identified an emerging standard of "a good arguable case" although there is a reference to a plaintiff having "an accrued and vested cause of action in equity, or at law…." (At 329). The judgment of Rogers AJA also contains an extract of the judgment of Burt CJ in the Western Australian Supreme Court in Perth Mint v Mickelberg (No 2) [1985] WAR 117, which is extracted at p 330 of the report in Patterson. There is reference in that extract to tests being formulated as a prima facie case, a good arguable case and "a sufficiently strong case to justify the grant of the interlocutory remedy." 18 A majority of the High Court of Australia (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) in Patrick Stevedores v Maritime Union of Australia (1998) 195 CLR 1, endorsed with approval an approach taken by a judge at first instance in making an order of this kind on the basis of the "existence of a serious question" concerning an action alleging conspiracy by unlawful means. 19 Whatever formulation of the approach is adopted, it is clear that the applicant needs to establish at the least an entitlement to maintain the substantive proceedings before the court and to satisfy the court that it has jurisdiction and power to deal with the claim as formulated. In circumstances where it would clearly be inappropriate to endeavour to make any assessment of the relevant strengths and weaknesses of the cases of the respective parties, the court would appear to be confined to a consideration of the respective pleadings. For my part, I am content to apply the test as formulated by Gleeson CJ in Patterson and in doing so I conclude on the basis of such material as is before the Court that the applicant has, at the least, an arguable case and that there is a serious question to be tried in the context of the proceedings. A danger of disposal of assets within the jurisdiction 20 This is the second limb of the principle referred to by Gleeson CJ in Patterson. His Honour considered in some detail the formulation of this second limb and referred to a number of authorities both in England and in Australia. His Honour referred to some of the formulations expressed in terms of "danger of money being taken out of jurisdiction", "a danger of default if assets are removed from the jurisdiction", "a real cause to apprehend" that a person may be deprived of a remedy, "risk, real risk", "risk demonstrated by solid evidence" and the like. Ultimately his Honour agreed with English authority "that it would be undesirable for courts to endeavour to be more precise in relation to the question now in issue. There is no shortage of forms of language, all having more or less the same meaning, in available and decided cases for the guidance of judges…." (At 324). His Honour referred also to the "important guidance" which consists in a consideration "of the nature and purpose of the remedy in question." (At 324). 21 Gleeson CJ completed his discussion by referring to the need for caution in considering the second limb because of the impact on the assets of a person that would follow the grant of an order. His Honour rejected as appropriate tests that sought to impose some form of burden or onus of proof in the nature of "more than usual likelihood" that assets were to be dissipated. Likewise, Gleeson CJ rejected any test as to whether the likelihood of dissipation of assets had been established "upon the balance of probabilities", for reasons which are discussed at 325. 22 Meagher JA, in Patterson, expressed this limb as being whether there was "some risk of a dispersal by the defendant of his assets so as to defeat the value of the plaintiff's victory if he ultimately wins." 23 Lest there be any doubt, arising out of the formulation of the second limb as requiring any proof of intention to dissipate assets which may be derived indirectly from a consideration of the language used by Meagher JA and Rogers AJA in Patterson, I refer for completeness to the joint judgment of Gaudron, McHugh, Gummow and Callinan JJ in the High Court of Australia in Cardile v LED Builders Pty Ltd [1999] HCA 18, which endorsed the opinion expressed by Mason CJ, Brennan and Deane JJ in the High Court of Australia in National Australia Bank Limited v Bond Brewing Holdings Ltd (1990) 169 CLR 271, which "described as mistaken any proposition that Mareva relief could only be obtained against the defendant to an action if there was a positive intention to frustrate any judgment." (At [26] of Cardile). I proceed on the basis that there is no necessity to demonstrate an intention on the part of the respondents in these proceedings to deprive the applicant of access to assets, but only that such a result would occur from their disposal. 24 Having observed that the courts "have struggled with the question of what the requisite degree of risk is" Lehane J in the Federal Court of Australia in Hadid v Lenfest Communications Inc (1996) FCR 446 observed that, "In my view, whatever precisely a real risk may be in this context, it is something greater than a risk which is in turn greater merely than de minimis. In a sense, of course, there is always a real risk that a corporation which owns an asset will sell it and, if the owner is a foreigner, there must in a sense always be a real risk that the proceeds will be taken out of the jurisdiction; but it is perfectly clear that it is not in every case where a foreign respondent has assets within the jurisdiction that there will be held to be a real risk of disposal, removal and, I suppose, dissipation so as to enliven the jurisdiction to grant Mareva relief." (At 448). 25 Informed by these authorities, I propose to proceed on the basis of considering whether the applicant has demonstrated that there is a tangible risk or danger that the respondents' assets may be dissipated if the orders sought are not granted. Such a risk or danger must be contrasted with a mere concern or apprehension that such a consequence might occur. There must be something of a more definite nature that is indicative that such a result is a real possibility. The evidentiary material 26 In matter no 1313, an order is sought against the second respondent, Peter Giddings only. However, the first respondent, which on the evidence is ultimately controlled by Mr Giddings, has sold its property at Parramatta Road with the transfer completed on 22 December 2006. The second respondent has transferred a 39% interest in a property owned by him in Ashfield, which was effected on 29 December 2006, and retains a 61% share in that property, which is subject to a mortgage. 27 In matter no 1314 the circumstances of the first and third respondents are those that I have set out above. As to the second respondent, Ealico, it has disposed of its poker machine licences at 191 Pitt Street, Redfern and is currently seeking to sell that property. Admittedly, it continues to own another property at Parramatta Road, Ashfield, there being no evidence of any intention with respect of the disposal of that property. 28 However, overarching this evidence, which is indicative of a significant disposal of assets over a relatively short period of time, there remains the effect of the correspondence from the respondents' solicitors to which I have previously referred. Those solicitors endeavoured to suggest that the properties were being disposed of as part of some ordinary course of trading or dealing associated with the business activities of the respondents. However, there is nothing to suggest as one might reasonably anticipate that any other assets have been acquired to replace any of the assets sold or in the course of marketing for sale, which would be indicative of some business activity consisting of dealing in property. Certainly a failure to file annual returns by the two companies is not indicative of any current trading activity. 29 Furthermore, the correspondence contains a representation that the respondents would make available to the applicant information that would enable him to be satisfied that there was no relevant risk or danger of dissipation of assets which might have the effect of frustrating any order made for payment of compensation. Although a representation was made in clear terms that such information would be provided, the respondents have failed to communicate any such information of any kind, even after the commencement of these interlocutory proceedings. 30 The applicant submitted that the failure to adduce any such evidence may allow the Court to draw an inference unfavourable to the respondents concerning the existence of any relevant risk or danger and the consequences thereof. In making this submission, Mr Britt of counsel relied on the judgment of Mason P in the New South Wales Court of Appeal in Sydney City Council v Zegarac (1998) 43 NSWLR 195. The proceedings in the Court of Appeal concerned the exercise by a judge of a discretion created by statute to extend a limitation period for the commencement of certain proceedings. In determining whether to exercise such a discretion, the Court was compelled by the statute to have regard to any prejudice to the defendant by reason that evidence would have been available if the proceedings had been commenced within the limitation period and was no longer available. In dealing with this latter discrete issue, Mason P referred to "persuasive dicta" which his Honour said indicates "that it is for the party opposing the application to adduce evidence of facts suggesting particular prejudice if the discretion were exercised in the applicant's favour." His Honour then said, "Failure to adduce such evidence may draw the unfavourable inference that specific prejudice is absent, due to the fact that it is very much in that party's camp to know of the existence, impact and 'extent' of such prejudice." (At 197). 31 The difficulty that I have with reliance on this part of the judgment of Mason P is that his Honour was discussing the construction of a statutory provision that enabled a discretion to be exercised in circumstances that required a consideration of prejudice to a defendant. Obviously in those circumstances, the prejudice to the defendant could only be asserted by the defendant. The circumstances of these proceedings are, in my opinion, different. In these proceedings, it is for the applicant to satisfy the Court that the relevant risk or danger exists. The principles do not talk of taking into account the intentions or impact upon the defendant as a matter of primary concern. Obviously, the impact of an order on the respondents will be a matter that this Court would take into account in determining whether to exercise the discretion to grant the orders sought, but it is not an essential ingredient in the context of the primary consideration which is whether the relevant risk or danger exists. I reject, therefore, any approach to the matter that would involve drawing an inference unfavourable to the respondents as to the existence of a relevant risk or danger because the respondents failed to adduce any evidence about this matter. 32 However, a different approach may be taken, in my opinion, by reason of the failure of the respondents to make good the promise to provide information concerning the assets of the respondents and in confirmation of their rejection that the disposal of assets would result in a relevant dissipation of assets. The failure of the respondents to provide the promised information may be taken into account as a factor within the general factual milieu to determine whether or not the relevant risk or danger has been demonstrated. That is, the respondents undertook to seek to convince the applicant that the relevant risk or danger did not exist. They then failed to make good that promise. In the absence of any explanation concerning this failure, I infer that the respondents were unable to provide any relevant comfort to the applicant. In the context of such a promise, I do not infer that the respondents were merely unwilling to provide such an explanation. 33 Having regard to the extent of the disposition of assets to date, and taking into account those assets that remain as described, coupled with the failure of the respondents to honour a promise to make relevant information available, I am persuaded that it is appropriate to grant the orders sought by the applicant. In so ordering, I shall grant leave to the respondents to approach the Court on motion to seek a variation or discharge of the orders in the event that any appropriate basis can be established. 34 As the applicant has been successful in the applications, there seems no reason why costs, as sought, should not follow the event and I propose to order costs accordingly. 35 Finally, for completeness, I note that the applicant has given the usual undertaking as to damages through his counsel. Orders 36 Matter No 1313 of 2005: 1) The second respondent Peter Giddings is restrained pending final determination of the proceedings or until further order of this Court by himself, his servants or agents from alienating, transferring, encumbering, further encumbering or otherwise adversely dealing with any of his respective rights, title or interest in and to the property situated at, and known as 166 Parramatta Road, Ashfield, being land comprised in Lot 10 of Section 14 in Deposited Plan 439 in Folio 10/14/439. 2) The second respondent Peter Giddings is to pay the applicant's costs of the notice of motion, assessed in default of agreement. 3) Liberty to apply on short notice. Matter No 1314 of 2005 1) The second respondent Ealico is restrained pending final determination of the proceedings or until further order of this Court by itself, its servants or agents from alienating, transferring, encumbering, further encumbering or otherwise adversely dealing with any of its respective rights, title or interest in and to the following properties: (a) situated at, and known as 191 Pitt Street, Redfern, being building land comprised in Lot 5 of Deposited Plan 83073 in Folio 5/83073 (b) situated at, and known as 168 Parramatta Road, Ashfield, being land comprised in Lot 11 of Section 14 in Deposited Plan 439 in Folio 11/14/439. 2) The third respondent Peter Giddings is restrained pending final determination of the proceedings or until further order of this Court by himself, his servants or agents from alienating, transferring, encumbering, further encumbering or otherwise adversely dealing with any of his respective rights, title or interest in and to the property situated at, and known as 166 Parramatta Road, Ashfield, being land comprised in Lot 10 of Section 14 in Deposited Plan 439 in Folio 10/14/439. 3) The second and third respondents are to pay the applicant's costs of the notice of motion, assessed in default of agreement. 4) Liberty to apply on short notice. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.