Moustapha v Nelson [2018] NSWSC 1816

Supreme Court New South Wales

Medium Neutral Citation: Moustapha v Nelson [2018] NSWSC 1816 Hearing dates: 16 November 2018 Date of orders: 26 November 2018 Decision date: 26 November 2018 Jurisdiction: Equity - Applications List Before: Parker J Decision: The First and Second Plaintiffs' Notice of Motion dated 25 October 2018 is dismissed. Catchwords: EQUITY – injunctions – interlocutory injunction – prima facie case – constructive trust claim based on the failure of a joint endeavour – where parties to the joint endeavour agree to share the proceeds of the sale of property – strength of proprietary claim

EQUITY – injunctions – interlocutory injunctions – balance of convenience – impact of delay in seeking injunctive relief – where proprietary relief sought at late stage in the proceedings – where the plaintiff failed to defend an earlier opportunity to assert their proprietary claim by application to extend caveat over the property

PRACTICE AND PROCEDURE – applications – freezing orders – whether purchasing expensive assets using money from a disputed fund is a relevant consideration in awarding a freezing order – no basis for order identified Legislation Cited: Home Building Act 1989 (NSW), ss 7 and 7AAA Uniform Civil Procedure Rules 2005 (NSW), rr 25.3, 25.11 Cases Cited: Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 Category: Procedural and other rulings Parties: Fouad Ahmad Moustapha (First Plaintiff/First Applicant) Overlook Tiles Pty Ltd (Second Plaintiff/Second Applicant) Katie Nelson (Defendant/Respondent) Representation: Counsel: N Obrart / A Strik (First and Second Plaintiffs/First and Second Applicants) J Giles SC / S Hartford-Davis (Defendant/Respondent)