Kee Management Pty. Ltd. Vs. Casey - (13 Jul 2023)

Inability to quantify a claim at early stage is not necessarily a bar to the grant of a freezing order

Civil

The Plaintiff has commenced proceedings by writ filed claiming that the defendant has breached contractual and fiduciary duties arising out of his contract of employment with the Plaintiff and as a result the Plaintiff has suffered loss and damage. The writ has been served on the Defendant. By the present application, the Plaintiff has sought urgent relief pursuant to Order 52A of the Rules of the Supreme Court, 1971, by way of a freezing order over the Defendant's assets, to prevent him disposing of or dissipating any proceeds of his alleged breaches of duty.

The Plaintiff has a good arguable case in respect of the claims set out in the indorsement to the writ. The evidence is capable of demonstrating the defendant was a party to a contract which had conditions which, among other things, prevented him from engaging in business in conflict with that of his employer. On the face of it, the defendant has both generally and specifically admitted engaging in conduct which may constitute a breach of contract. The inability to quantify a claim at this early stage is not necessarily a bar to the grant of a freezing order.

The evidence establishes that the defendant has no real property. There is no evidence suggesting that, he has any other substantial assets. The plaintiff has been unable, at this stage, to quantify the potential losses which have arisen in this case as a result of the defendant's conduct. The plaintiff has sought information from the defendant as to his assets and, in particular, his bank records, which he has presently declined to provide. He has also declined to voluntarily sign an undertaking not to deal with moneys received as a result of alleged breaches. Finally, the absence of evidence as to the defendant's assets is not evidence that he does not have any.

An interim freezing order should be made in the terms proposed. The order enables the defendant to pay for his ordinary living and legal expenses, and to produce evidence of his assets and banking records. In possession of this information, the Plaintiff will be in a position to more readily assess the quantum of its claim, and thereafter the duration of the order can be re-evaluated.

Tags : CONTRACT FREEZING ORDER GRANT