Mort v Woolf [2002] VSC 503

8. In 1995 the plaintiffs purchased the property at 40 Cecil Street, Kew. For some years the defendant has been the occupier of the adjoining property at 38 Cecil Street. Following the death of the defendant's father in October 2000 the defendant and his sister inherited the property.

11. In 1998 the plaintiffs determined to renovate and extend the home on their property. To enable them to do so they secured a loan from Westpac of $280,000. In late 2001 the renovations and rebuilding of the plaintiffs' property commenced.

14. Initially relations between the plaintiffs and the defendant were quite cordial. However, as time passed, that relationship deteriorated to the stage where the plaintiffs allege the defendant became very aggressive towards them. In that regard it is perhaps relevant to note that the defendant has a long criminal history (see Exhibit J to the affidavit of Detective Senior Constable Richard Coates sworn 11 November 2002), is unemployed, and would appear to drink quite heavily, causing him to become very aggressive.

17. At all events, in the early hours of Sunday morning 21 July 2002, and at a time when the plaintiffs and their children were absent from their home, the home burnt down.

20. There is evidence that by 5.30 p.m. on the Saturday afternoon, that is, 20 July, the defendant was quite intoxicated. The plaintiffs allege that on an occasion prior to the fire and in a telephone conversation he had with the first plaintiff, the defendant made a comment to the effect that "I hope your insurance is good".

23. The subsequent investigation of the fire by the police has satisfied them that the fire at the plaintiffs' home was deliberately lit and that it was the defendant who lit it. Perhaps the strongest evidence in that regard is that of the forensic experts who studied the ruins of the house and the evidence of an as-yet-unidentified witness who has made a written statement to the police to the effect that shortly prior to the fire the defendant made a specific statement to the witness that he intended to burn down the plaintiffs' house, and shortly after the fire admitted to the witness having caused the fire. The Director of Public Prosecutions now intends to charge the defendant with arson.

26. The defendant's counsel was very critical of the fact that the identity of the witness to whom I just referred, had not been disclosed. One can understand his attitude in that regard. However, the investigating police fear for the safety of the witness if the witness's identity is revealed at this early stage of the criminal proceedings to be taken against the defendant. In that situation I was not prepared to require the police to do so. Nevertheless I have taken heed of the defendant's counsel's criticism and have not attached that degree of weight to the witness's evidence I might otherwise have done.

29. On 17 August 2002 the defendant and his sister auctioned the property at 38 Cecil Street and sold it for $591,000.

32. On 3 September 2002 an urgent ex parte application was made to me by counsel for the plaintiff seeking to restrain the defendant from disposing of his assets. I acceded to the application and made the order sought. On 6 September I varied my order of 3 September to enable settlement of the sale of 38 Cecil Street to take place and to order that the net proceeds of the sale be paid to the Senior Master for investment by him and to abide the further order of the court. Those orders were not opposed by the defendant.

35. On 7 October Bongiorno, J. extended my orders of 6 September to 21 October, and on 21 October Balmford, J. extended my orders to 11 November. On 11 November I extended them to 14 November and on 14 November to today.

38. I now have an application on behalf of the plaintiffs to extend my orders to the trial and determination of the proceeding.

41. In his affidavit of 1 October 2002 the defendant has sworn that he was at home on the night of the fire, was asleep when the fire started and was woken up by the fire. He has at all times denied any responsibility for the fire.

44. The defendant has also relied upon an affidavit of a friend named William Francis Prideux. In his affidavit Prideux has sworn that he was present at the defendant's home somewhere around 10 or 11 a.m. on the morning of Saturday 20 July 2002 when he heard the plaintiffs' builder, Mark Miller, say to the defendant words to the effect, "I'm going to lose money on this. I wish it would f'ing burn down." I should add that the defendant himself has sworn that as the plaintiffs' builder, Mark Miller, was leaving his place on 20 July he claimed that he was not happy with how long it was taking to finish the plaintiffs' house and that "a bloke should burn the place down".

47. The inference the defendant seeks to have the court draw from the evidence relating to Miller is that it may have in fact been Miller who set fire to the plaintiffs' home. However, in an affidavit sworn by him on 16 October 2002 and filed by the plaintiff, Miller has stated that he was not present at the home of the defendant until about 5.30 p.m. on 20 July, that he saw no other person present at the defendant's home, and that no such conversation took place between him and the defendant.

50. Whilst it is usually impossible to determine the credibility to be attached to a witness's evidence when one is dealing with an interlocutory application, I do note that Prideux has an extensive criminal history including serious convictions for armed robbery, theft, drug-related offences and making a false statement. I am not persuaded of the veracity of the defendant's and Prideux's statements concerning Miller. Miller had brought the home to lock-up stage by the time of the fire. In that situation I think it highly unlikely that he would then burn it down.

53. In view of the evidence gathered by the police in relation to this matter, I think that it is strongly arguable that the defendant did set fire to the plaintiffs' home in the early hours of Sunday morning 21 July 2002.

56. The evidence establishes that, apart from a few personal assets, the defendant has no other asset than his share of the proceeds of sale of 38 Cecil Street. Having regard to the criminal behaviour of the defendant in the past to which I earlier referred, I consider that there are strong grounds for fearing that if his share of the proceeds of sale of the house is not frozen it will be dissipated by the defendant in such a way as to deprive the plaintiffs of the benefit of any judgment they may later recover against him. In that regard I note what Meagher, J.A. said in Patterson v. BTR Engineering (Aust) Ltd & Ors.[1]:

"I agree that after the decision of the High Court in Jackson v. Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612, the jurisdiction to grant 'Mareva injunctions' must now be accepted. To obtain such an injunction a plaintiff must prove two ingredients: first, that he has a prima facie case against the defendant, and secondly, that there is some risk of a dispersal by the defendant of his assets so as to defeat the value of the plaintiff's victory if he ultimately wins. Normally proof of the first ingredient alone will not suffice; normally one cannot infer a risk of dissipation of assets from the mere fact that the plaintiff has a prima facie cause of action. In normal circumstances this is particularly so in cases like the present, where there is no evidence at all what the defendant's assets are. However, in exceptional cases (of which the present is unfortunately one) one can infer the existence of the latter ingredient partly or wholly from proof of the former. This may well be the situation in all cases where the plaintiff's prima facie case against the defendant involves proof of gross dishonesty. This was the view apparently taken by Vincent J in Pearce v. Waterhouse [1986] VicRp 57; [1986] VR 603."

60. The following are the orders I consider to be appropriate in the proceeding which I propose to make upon counsel for the plaintiffs repeating the undertaking as to damages on behalf of the plaintiffs which he previously gave to the court.

63. MR GUNST: We give that undertaking on behalf of the plaintiffs, Your Honour.

1. Until the trial of this proceeding or further order the defendant, whether by himself or by any servant or agent or howsoever otherwise, be restrained from disposing of, charging, diminishing or dealing in any way with any of his assets whatsoever, within or without the jurisdiction:

(b) save for the sum of $300 per week for ordinary living expenses;

(c) save for the sum of $10,000 for legal expenses in defence of this proceeding; and

(d) save in payment of any of the debts or fines referred to in paragraph 3.4(i) to (v) of the affidavit of the defendant sworn 4 September 2002.

2. Notwithstanding the generality of paragraph 1 hereof, the defendant and Geraldine Anne Gordon be at liberty to complete the sale of the property referred to in paragraphs 2, 10, 11 and 12 of the Statement of Claim herein, namely of the land and property situate at 38 Cecil Street Kew, being the land more particularly described in Certificate of Title Volume 8031 Folio 567, provided that:

(a) one-half of the net proceeds of such sale including any deposit, and after payment only of all reasonable selling agent's fees and commission and the legal costs of solicitors Weir & Stempel incurred by them in relation to the application for Probate of the will and estate of Vincent Eugene Woolf, such costs to be as certified by Weir & Stempel, shall be immediately paid to the Senior Master of the Court for investment by him and to abide this proceeding or further order; and

(b) one-half of the net proceeds of such sale including any deposit, and after payment only of all reasonable selling estate agent's fees and commission, shall be immediately paid to Geraldine Anne Gordon.

3. Each party herein have liberty to apply on the giving of 72 hours notice in writing to the other party.

If any further application is to be made by the defendant in relation to other expenditure incurred by him, then it will be necessary that he make a further application to the court upon appropriate evidentiary material.

The defendant has contended that he was in no way responsible for the adjournment of the application from 11 November to 14 November and that he should therefore have his costs of that day. The fact is that in my opinion the adjournment on 11 November occurred through no fault on the part of the plaintiffs or of the defendant.

4. The costs of this application be costs in the cause.

5. The requirement that this order be authenticated be dispensed with and that this order be signed by a judge.

[1] (1989) 18 N.S.W.L.R. 319 at 326.