ASSAF v SKALKOS [2002] NSWSC 1255

New South Wales Supreme Court

CITATION : ASSAF v SKALKOS [2002] NSWSC 1255 FILE NUMBER(S) : SC 18374 OF 1993 HEARING DATE(S) : 17 December 2002 JUDGMENT DATE : 17 December 2002

JOSEPH ASSAF (First Plaintiff)

ETHNIC COMMUNICATIONS PTY LTD (ACN 001 445 889) (Second Plaintiff) PARTIES : v

THEODORE SKALKOS (First Defendant)

FOREIGN LANGUAGE PUBLICATIONS PTY LTD (Second Defendant) JUDGMENT OF : Levine J

K Rees (Plaintiffs) COUNSEL : T Molomby SC (Defendants) Mallesons Stephen Jacques (Plaintiffs) SOLICITORS : T Lazaropoulos (Defendants) CATCHWORDS : Mareva orders - concluded litigation Bax Global (Australia) Proprietary Limited v Evans (1999) 47 NSWLR 538 CASES CITED : Cardile v LED Builders Proprietary Limited (1999) 198 CLR 380, 73 ALJR 657 Frigo v Culhaci, (NSW Court of Appeal, unreported, 17 July 1998) DECISION : See paragraph 16

Ex tempore - revised IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUSTICE DAVID LEVINE

TUESDAY 17 DECEMBER 2002

18374 OF 1993 JOSEPH ASSAF (First Plaintiff)

ETHNIC COMMUNICATIONS PTY LTD (ACN 001 445 889) (Second Plaintiff)

v

THEODORE SKALKOS (First Defendant)

FOREIGN LANGUAGE PUBLICATIONS PTY LTD (Second Defendant)

JUDGMENT (Mareva orders - concluded litigation) 1 By an amended notice of motion, the plaintiffs seek Mareva type orders. 2 The evidence in support of the motion was made up of the following affidavits read without objection: Three affidavits of Justine Melissa Munsie sworn 12 November, 18 November and 17 December 2002, to the first of which is exhibited the folder JMN1. The other affidavit was that of Edward John Santow sworn 17 December 2002. The exhibits before Sperling J on 18 November 2002 A to D regarding, in short form, the sale of the Marrickville and Glebe Point Road properties also became exhibits before me. 3 The history of this action is set out in a chronology handed up by Ms Rees, MFI 1. Save for one matter relating to the entry for 18 November 2002, it is in general terms non-contentious. 4 There is no issue as to the relevant legal principles to be applied in an application of this kind. (See Cardile v LED Builders Proprietary Limited (1999) 198 CLR 380, 73 ALJR 657; Bax Global (Australia) Proprietary Limited v Evans (1999) 47 NSWLR 538 and Frigo v Culhaci, (NSW Court of Appeal, unreported, 17 July 1998). 5 This action for defamation has been characterised by defeat for the defendants all the way. Most recently, in the High Court on Friday, 13 December 2002, leave to appeal was refused with an order for costs being made against the applicants/defendants. On 13 February 2002 the Court of Appeal dismissed the appeal and on 23 July 2002 the Court of Appeal ordered the defendants to pay costs of that appeal on an indemnity basis. I accept for the purposes of this application that presently the total costs involved, including an allowance of a rough figure of $40,000 for the appeal to the High Court, is in the vicinity of $1.16 million. The judgment awarded to the plaintiffs at trial by Carruthers AJ has been paid. The orders sought are by way of protection to the plaintiffs for those costs, one component of which will be the subject of an appeal judgment by Master Malpass this Friday. 6 The case for the plaintiffs in the light of the historical matters deposed to and taking into account the judgment finality from 13 December is clear in terms of where power exists over assets, in whom it lies, disposition of assets hitherto and the likely disposition by or on behalf of the defendants. 7 A critical document in these proceedings is an undertaking signed on 9 July 2001. It is in the following terms: "1 I, Theodore Skalkos in my personal capacity and as director of Foreign Language Publications Pty Limited of 5 – 13 Garners Road, Marrickville, New South Wales: undertake to the Court that, pending the determination of this matter on appeal , the defendants will not sell, give or otherwise dispose of any asset in which they have a legal or beneficial interest, except: (a) in the ordinary course of their day to day business; or (b) in the ordinary course of my day to day living expenses, including those living expenses of my dependents or spouse; or (c) for the purpose of discharging or servicing their debts, liabilities, including liabilities under guarantees, present or contingent; or (d) for the purpose of any legal expenses: (i) incidental to this action; or (ii) in relation to an appeal of this action including, but not limited to, any cross appeal or ground of contention. 2 The defendants reserve a right to seek a variation of this undertaking by agreement between the parties, such agreement not to be unreasonably withheld, or failing agreement by application to the court." (emphasis added) 8 The critical phase according to the position taken by the defendants on this motion is "pending the determination of this matter on appeal".