Trademark Dispute Over ‘Pe’ Settled Between Phone Pe and Bharat Pe  ||  Centre Starts Granting Citizenship Under CAA in West Bengal, Haryana and Uttarakhand  ||  Circular Regarding Prioritizing Cases of Litigants/Advocates with Disability, Issued by Delhi HC  ||  Del. HC: Free Wi-fi Facility Launched by Delhi High Court for Lawyers, General Public  ||  Ker. HC: Construction of Illegal Religious Structures Cannot be Permitted on Government Land  ||  Kar. HC: De-Nomination of Chairman of Minorities Commission by Govt. Before Term is Not Arbitrary  ||  Delhi High Court: Question of Property Title Can’t be Decided by Forums Under Senior Citizens Act  ||  Jh. HC: Can’t Cancel Bail Unless There is Violation of Bail Conditions or Accused Impedes Fair Trial  ||  Guidelines Issued by Delhi High Court for Trial Court Judges to Decide Transfer Applications  ||  P&H HC: Presence of Magistrate Mandatory to Prove Compliance With Section 52A of the NDPS Act    

Woodley v. Woodley - (22 Aug 2019)

A freezing order should not be made unless risk of dissipation is established


The Applicants are the brother and sister-in-law of the late Terry Ray Woodley (the deceased). They are also creditors of his estate. The first Respondent is the widow of the deceased and the executrix of the deceased's will. The Applicants applied for a freezing order restraining the first Respondent from dealing with four properties that form part of the estate without the applicants' written consent.

It is not sufficient for the Court to conclude that, one or more of the events described in Order 52A Rule 5(4)(a) or (b) of Rules of the Supreme Court, 1971 might occur. The court must be satisfied that the identified danger (that the prospective judgment will be unsatisfied) arises because one or more of those events might occur. The court must be satisfied that there is a causal connection between the event and the danger. The risk or danger must be real or substantial, as opposed to a remote, speculative or a theoretical possibility. The applicant must prove facts from which the Court can infer the existence of a real or substantial risk or danger that the respondent will dispose of or otherwise deal with its assets in a way such that the applicant will not be able to satisfy any judgment obtained against the respondent.

The facts from which the risk or danger is to be inferred must be proved on the balance of probabilities. The fact that assets within the jurisdiction are moveable, and that the Respondent is incorporated outside the jurisdiction is not enough to warrant an inferential finding of danger of dissipation. No matter how strong the applicant's claim appears to be and how inconsequential the prejudice to the respondent by the ordering of security, a freezing order should not be made unless the risk of dissipation is established.

Present Court is not satisfied that, a risk of dissipation may be inferred from the facts. Over the past eight years the first Respondent has established a life in Western Australia. This is her children's home and it is her home. The first Respondent's life has been disrupted by the death of the deceased. It is a very sad event but not one that has destroyed the prospect of a happy life for the first Respondent and her children in Western Australia. The applicants' submissions underestimate the difficulties that would be involved in the first Respondent 'absconding' from Western Australia with two young children and establishing a new life in Russia. Reduced to its essence the premise upon which there is a risk of dissipation involves three matters: the first respondent is from Russia; assets in Russia are beyond the reach of the Court's enforcement processes; and the darker side of human nature. A risk of dissipation cannot be inferred from the facts in this case.

There is no evidence of any dishonesty or subterfuge on the first Respondent's part and no evidence that, she is not dealing with the Estate in an entirely proper manner. The applicants are owed a substantial sum of money by the estate and although their concern (no doubt heightened by years of stressful litigation) to ensure that, they are paid is readily understandable, they have not established that they are entitled to the drastic remedy of a freezing order.


Share :        

Disclaimer | Copyright 2024 - All Rights Reserved