Lien Hoa Women Buddhist Meditation Centre Incorporated v KL Aussie Pty Ltd

1. [1]

   A short time ago I granted the defendants’ application to vacate the undefended hearing and have set down the proceedings between the parties as a defended hearing on 17 February 2025.

2. [2]

   The plaintiffs now seek the following orders:

3. [3]

   It is submitted by Ms Cohen, on behalf of the plaintiff, that what is being sought is not a freezing order or an order in the nature of a Mareva order. Ms Cohen submits that the plaintiff is seeking to restrain, until the hearing, the defendants from taking any money overseas so that they would not be in a position to satisfy any judgment.

4. [4]

   Mr Mirzai who appears for the defendants opposes the making of the orders sought.

5. [5]

   The plaintiff relies on the affidavit of Ying Zhang, solicitor for the plaintiff, who expresses the following concern at paragraph 12:

6. [6]

   It is put by Ms Cohen that the defendants did not appear at the various hearings before the Registrar. In effect, the submission is that the defendants disappeared for a period of time. They have recently emerged after the sale of the property referred to in Ms Pham's affidavit, who states that the defendants’ equity from the sale of that property is about $300,000. Ms Cohen submits that the defendants are now selling other properties.

7. [7]

   On behalf of the defendants, Mr Mirzai points out that these proceedings have been on foot for some time, and if the defendants had intended to remove the proceeds from sales overseas they would have done so well before today. He argues that what the defendants have done after receiving $300,000 from the sale of the property, is to engage their solicitors and counsel. They are now ready to put on affidavit evidence in answer to the plaintiff's claim. Mr Mirzai submits there is no evidence to justify the orders sought.

8. [8]

   Mr Mirzai has handed up to me a judgment of Brereton J (as he then was) of Finn v Carelli [2007] NSWSC 261 (“Carelli”). Whilst the application made is not in the strict sense for a freezing order, it is my view that the principles expressed in Carelli apply to the present application.

9. [9]

   As Brereton J said at [2]:

10. [10]

    Further on, at [4]:

11. [11]

    Further, at [5]:

12. [12]

    The plaintiff has established a prima facie cause of action.

13. [13]

    On the material before me, the plaintiff has not established by evidence, but merely has asserted a concern, that there is a real danger the defendants will deal with their assets in a way that the plaintiff will not be able to have its judgment satisfied.

14. [14]

    There was reference made by Ms Cohen to the affidavit of Ms Pham, to her statement that the defendants’ equity amounted to $300,000 and to a title search showing that the mortgage on the Mildura property had not been discharged. Quite frankly, on the material before me, I am unable to ascertain whether Ms Pham’s statement is correct. Unfortunately, none of the parties have been available for cross-examination.

15. [15]

    Accordingly, I am not satisfied that it is appropriate for the Court to make the orders sought. Costs should follow the event.

Orders

1. [16]

   The notice of motion is dismissed.

2. [17]

   The plaintiff should pay the defendants’ cost of the notice of motion.