Zahos v Michael

Judgment 1HIS HONOUR: This is an application for preliminary discovery from a person who is not a party to proceedings pursuant to r 5.4 of the Uniform Civil Procedure Rules 2005 (UCPR). 2The proceedings in respect of which the application is made were commenced with the filing of a statement of claim on 20 February 2012 in which Mr Terry Zahos is the plaintiff and Ms Poppy Michael, CKZIA Pty Ltd and Eatstablishment Pty Ltd are the defendants. To make sense of the relief that is claimed it is necessary to say something about the historical background. 3There has been a long running dispute between Mr Zahos on the one hand and Ms Michael and her brother, Mr Harry Hatzistergos on the other. Ms Michael and Mr Hatzistergos commenced proceedings against Mr Zahos and another man in the Industrial Relations Commission in 2002. It seems that this litigation was bitterly contested and protracted. One aspect of it was an attempt to draw in Mr Zahos' parents. That step culminated in proceedings being brought in the Court of Appeal in which Mr Zahos' parents were successful and their costs were ordered to be paid by Ms Michael and Mr Hatzistergos: Zahos v Industrial Relations Commission of NSW [2005] NSWCA 427. 4Ultimately, there was a by consent dismissal of the proceedings in the Industrial Relations Commission on 16 August 2007. Ms Michael and Mr Hatzistergos were ordered to pay the costs of Mr Zahos and the other defendant. Informal attempts to secure agreement as to quantum and payment were unsuccessful. Mr Zahos invoked the formal costs assessment processes under the Legal Profession Act 2004. Certificates as to the Determination of Costs and as to the Costs of the Costs Assessment were issued in May 2009. They were filed in this Court and a judgment was entered in the sum of $212,385 in favour of Mr Zahos against Ms Michael and Mr Hatzistergos on 20 August 2009 (file 2009/295027). Mr Zahos asserts that with interest, the sum presently due is in the order of $260,000 to $270,000. 5On 6 December 2011, Mr Zahos filed a Notice of Motion for the issue of a writ for the levy of property against Ms Michael. The property in question was a residential home in Bexley North. Mr Zahos then, apparently, became concerned about a possibility of Ms Michael alienating her interests in that property and as well as other interests. He filed a Notice of Motion on 20 December 2011 with four respondents, Ms Michael, The Eatstablishment Trust, The Hatzistergos Family Trust and The Michael Family Trust, and The TWH Trust and The TWM Trust. Mr Zahos sought orders including that Ms Michael be restrained from dealing with (et cetera) her interest in the Bexley North home, her shares in two restaurants in Newtown and her shares in The Eatstablishment Pty Ltd and CKZIA Pty Ltd. 6The Notice of Motion filed 20 December 2011 has been before the Court now on three occasions. There have been consent orders made on each occasion, without admissions, restraining Ms Michael from dealing with (et cetera) the specified interest/shares until the next Court date. 7That then brings me to the Statement of Claim filed by Mr Zahos on 20 February 2012. The relief that is claimed is: