France v Siekaup

Judgment

1. These reasons deal with the issue of costs following a dispute between the parties as to the ambit and extent of freezing orders made by the Court on 26 March 2021 which is the subject of my judgment in France v Siekaup (No 3) [2021] NSWSC 497. These reasons assume familiarity with that judgment.
2. The Court has received and considered written submissions on the issue of costs from the parties who are content for that issue to be dealt with on the papers.
3. In the judgment, I concluded that the freezing orders could be construed as extending to the assets held by Sieve-Storm Pty Ltd as trustee of the Sieve-Storm Trust, as contended by the plaintiff, and should not be limited in the manner sought by the defendants to the trust assets held by Sieve-Storm Pty Ltd as trustee of the Affordable Property Trust. However, I considered that there was ambiguity in the freezing orders as drafted.
4. The plaintiff seeks an order that the second defendant pay her costs of 22 April 2021 and thereafter or, alternatively, that the costs be the plaintiff's costs in the cause.
5. The plaintiff submits that the second defendant should be ordered to pay her costs as it did not exercise liberty to apply to vary or discharge the freezing orders after they were initially made and consented to those orders being extended in their current form on 1 and 8 April 2021. She points to the fact that the defendants did not make any effort to liaise with her to clarify the terms of the freezing orders prior to and during the directions hearing before Slattery J on 22 April 2021 when the issue of the ambit and scope of the orders was first raised. She submits that this is contrary to the requirements of ss 56 and 59 of the Civil Procedure Act 2005 (NSW) (CPA), referring to the Kunc J's comments in Tugrul v Tarrants Financial Consultants Pty Ltd (No 5) [2014] NSWSC 437 at [71]-[74].
6. The plaintiff also submits that the second defendant should be ordered to pay her costs as it did not succeed where the Court construed the freezing orders in the manner contended for by the plaintiff. To the extent that the freezing orders were found to be ambiguous, the plaintiff says that the proper course is for the second defendant to exercise liberty to restore and seek to vary them.