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Take Care When Applying for a Freezing Order

In the recent decision of Care A2 Plus Pty Ltd v Pichardo [2023] NSWCA 156, the NSW Court of Appeal dismissed the applicants’ (Care A2 Plus Pty Ltd and Care A2 Australia Pty Ltd) notice of motion seeking a freezing order against the respondent (Karla Pichardo) to restrain her from disposing of her assets in Australia pending the outcome of an appeal.

The freezing order was requested under UCPR 25.11, which aims to prevent the frustration or inhibition of the Court’s process and ensure that a judgment or prospective judgment is satisfied. UCPR 25.14 sets out the conditions for granting a freezing order, including the requirement of a “good arguable case” and a danger that a judgment will be unsatisfied.

The Court considered the complexity of the case and provided a summary of the background. The respondent was the Chief Financial Officer of DCA Enterprises Pty Ltd (DCA) and held a shareholding in the company. Disputes arose between the applicants and the Azzopardi brothers, including allegations of misleading and deceptive conduct regarding the acquisition of broadcast and streaming rights to the Rugby League World Cup. The applicants claimed damages against the Azzopardi brothers and the respondent, alleging their involvement in the deceptive conduct.

The primary judge delivered a judgment in favour of the applicants against Dylan Azzopardi but dismissed the claims against Justin Azzopardi, Chloe Azzopardi, and the respondent. The applicants appealed the decision, raising grounds challenging the factual findings of the primary judge. To obtain a freezing order pending the appeal, the applicants needed to establish a “good arguable case” and a danger that a judgment would be unsatisfied.

The Court of Appeal assessed the evidence presented by the applicants, including email communications from the respondent, which they argued indicated her involvement in the deceptive activities. However, the Court found that the applicants failed to demonstrate a “good arguable case” that would warrant disturbing the primary judge’s factual findings.

Regarding the danger of an unsatisfied judgment, the Court noted that there was no evidence of the respondent disposing of assets or any positive conduct suggesting such behaviour. The respondent owned a property, but there was no indication of it being listed for sale. Consequently, the Court concluded that the applicants had not established a danger of the judgment being unsatisfied.

As a result, the Court dismissed the notice of motion and ordered the applicants to pay the respondent’s costs.

For more information about Freezing Orders, please contact our commercial litigation lawyers David Collins or Kristy Nunn from our dispute resolution and litigation team.

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