[2024] NSWSC 440
Telstra Ltd v Sulaiman
Plaintiff’s Notice of Motion dismissed; costs of the plaintiff’s Notice of Motion be the defendants’ costs in the cause
Catchwords
CIVIL PROCEDURE – interim preservation – freezing orders – whether orders should be varied to decrease amounts allowed for living expenses
Cases cited
- Barnes v Addy (1874) LR 9 Ch App 244
- Black v S Freedman & Co (1910) 12 CLR 105;[1910] HCA 58
- Heperu Pty Ltd v Belle[2011] NSWSC 1151
Judgment
- [1]
These proceedings were commenced on 11 December 2023.
- [2]
The allegations that the plaintiff makes are summarised in the Commercial List Statement that it filed later on 23 February 2024 as follows:
- [3]
On 11 December 2023 McGrath J, as duty judge, made freezing orders against each defendant. That freezing order was in the usual form and contained a statement that the order “does not prohibit you from paying up to $2,000 a week on your ordinary living expenses”. On 15 December 2023 Ball J varied that order so that the figure was $1,000 per week, rather than $2,000 per week.
- [4]
By Notice of Motion filed on 20 March 2024, the plaintiff seeks to vary the freezing order so that the figure of $1,000 is replaced with a figure of $500.
- [5]
The plaintiff’s evidence in support of that application is from its solicitor. It comprises largely indirect evidence as to the defendants’ alleged income, evidence that the second defendant owns two properties, and the plaintiff’s solicitor’s observations based on his “review” of affidavits that the defendants have filed as to the payment of rent.
- [6]
The defendants have also made an affidavit setting out various assertions concerning their living expenses.
- [7]
The plaintiff’s submissions in support of its motion focus on the alleged fact that the defendants have a weekly income together of some $3,700 comprising primarily of Centrelink payments but also rent evidently received by the second defendant from one of his properties.
- [8]
The evidence also shows that each of the defendants and the first and second defendants’ wives and children are living together in a property owned by the second defendant.
- [9]
As I say, the plaintiff’s submissions focus on the level of income of the defendants. However, the question on the application is how much of that income each defendant reasonably needs to spend on his or her own living expenses; as opposed to the living expenses of others, particularly the wives of the first and second defendants, the three children of the first defendant, and the four children of the second defendant.
- [10]
It is for the plaintiff to show that each defendant reasonably only requires $500 per week to cover their own living expenses.
- [11]
The plaintiff has not shown that this figure is $500, as opposed to any other figure.
- [12]
For those reasons, I make the following orders:
- (1)
The plaintiff’s Notice of Motion filed 21 March 2024 is dismissed;
- (2)
Order that costs of the plaintiff’s Notice of Motion filed 21 March 2024 be the defendants’ costs in the cause.
- (1)