Tomasetti v Brailey [2012] NSWCA 6

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tomasetti v Brailey [2012] NSWCA 6 Hearing dates: 30 January 2012 Decision date: 30 January 2012 Before: Campbell JA Decision: Notice of Motion filed 23 January 2012 dismissed. Applicants to pay costs of Respondents of Notice of Motion. Costs of application made 22 and 23 December 2011 to be paid by Applicants. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - interlocutory issues - Mareva order - appellate jurisdiction - freezing order granted at first instance to now appellant - appellant unsuccessful at trial - appellant seeking new freezing order pending hearing of appeal - power of Court of Appeal to grant Mareva orders under UCPR 25.14 - considerations in granting Mareva order to appellant unsuccessful in court below - refusal to give undertaking not in itself evidence of actual or threatened diminution of assets - orders refused Legislation Cited: Corporations Act 2001 (Cth) Fair Trading Act 1987 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Aspermont Ltd v Lechmere Financial Corporation [2002] WASCA 52; (2002) 27 WAR 1 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Commissioner of State Taxation (WA) v Mechold Pty Ltd (1995) 95 ATC 4053 Frigo v Culhaci [1998] NSWCA 88 Ghoth v Ghoth [1992] 2 All ER 920 Ketchum International PLC v Group Public Relations Holdings Ltd [1996] 4 All ER 374 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Tomasetti v Brailey [2011] NSWSC 1446 Category: Interlocutory applications Parties: Peter Charles Tomasetti (First Applicant) Sandra Joyce Cordony (Second Applicant) Tomasetti Investments Pty Ltd ATF Tomasetti Superannuation Fund (Third Applicant) Edmund Francis Brailey (First Respondent) John Clifford Fenton (Second Respondent) Christopher Campbell Lane (Third Respondent) TJC Financial Planning Pty Ltd (Fourth Respondent) Representation: Counsel A Maroya (Applicants) C Carroll (Respondents) Solicitors Heckenberg & Koops (Applicants) Holman Webb (Respondents) File Number(s): 2009/297599