Interim Order Restraining Disposal of Disputed Jewellery

The court granted an interim order restraining the defendant from dealing with jewellery until the dispute over its rightful ownership could be resolved.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v [NAME] [2015] NSWSC 154 Hearing dates: 04 March 2015 Date of orders: 04 March 2015 Decision date: 04 March 2015 Jurisdiction: Common Law Before: Wilson J Decision: Orders made as per paragraph 9 Catchwords: RESTRAINING

ORDER – dispute over ownership of property in defendant's possession - defendant restrained from dealing with engagement ring and earrings until further orders – no point of principle Category: Procedural and other rulings Parties: [NAME] (Plaintiff) [NAME] (Defendant) Representation: Counsel: [redacted] No appearance for the Defendant

Solicitors: [redacted] No appearance for the Defendant File Number(s): 2015/66272

EX TEMPORE Judgment 1. [NAME] makes application for an urgent interim order restraining the defendant, [NAME], from dealing with certain jewellery, being an engagement ring and a set of matching earrings, said to be valued at some $70,000, which Mr [NAME] alleges are owned by him but are in the current possession of [NAME].

2. Mr. [NAME] is represented by counsel; Ms. [NAME] was called outside the court three times but does not appear. I am satisfied that she has been given notice of today's proceedings.

3. It is unnecessary for the purposes of issuing an interim injunction to set out the facts in any detailed way. There is affidavit material before the court which sets out the facts as Mr [NAME] alleges them to be, but essentially the dispute is as to whether or not the jewellery was given to [NAME] by Mr. [NAME] as a gift without conditions, she thus being entitled to keep it; or, whether the jewellery was given as a conditional gift, the condition being to make the gift subject to a marriage taking place between Mr [NAME] and [NAME]. It was envisaged by Mr. [NAME] that a marriage would take place at the time the jewellery was given to Ms. [NAME].

4. The marriage did not in fact to take place, [NAME] having broken off her engagement to Mr. [NAME].

5. Exhibited before the court is a bundle of material annexed to the Mr [NAME]'s affidavit, the affidavit having been prepared for these proceedings. There appears to have been some significant short message or text message traffic, largely from Mr [NAME] to [NAME] it must be said, concerning the jewellery, together with some letters of demand sent by Mr [NAME]'s firm of solicitors on his behalf, seeking the return of the jewellery. Some of the material I note in passing does Mr [NAME], as a solicitor of this court, no credit in that he appears to suggest to [NAME] that it would be in his control to have [NAME] criminally charged by police over her retention of the jewellery, or made subject to orders against her for costs, made by this court in relation to these proceedings. Those are not things within Mr [NAME]'s control and it is not appropriate for a solicitor of this court to make such threats, presumably as a means of obtaining some leverage over Ms. [NAME].

6. Notwithstanding those comments there is sufficient evidence to establish that there is a potential cause of action as to rightful ownership of the disputed property. There is plainly a dispute over the ownership of the earrings and the ring. The items of jewellery have some significant value and plainly the dispute will have to be determined. The orders I intend to make will do no more than maintain the current position between the parties, and ensure that the jewellery is not disposed of before the Court can determine the dispute.

7. I am prepared to make order 1 as sought by the plaintiff today, that being an order which simply restrains [NAME] from dealing with the relevant jewellery subject to further order of this court.

8. Mr [NAME] did seek an order for [NAME] to deliver up the jewellery to the registrar of this court by 5 pm on Thursday 5 March of this year, but I see no reason to conclude that [NAME], once duly served with a copy of the court's orders, would breach them or would otherwise fail to abide by them.

9. Accordingly I make orders in these terms:

1. Until further order of this Court, the defendant, [NAME], is restrained from dealing with an engagement ring and matching engagement earrings which were given to her by [NAME].

2. A copy of the court's orders are to be served personally upon the defendant's mother, [NAME], at [ADDRESS], Double Bay, and also on the defendant's friend, [NAME], at [ADDRESS], Woollahra by 5 pm today. A copy of the orders is additionally to be served upon [NAME] by way of email and notified to her by text message at the email and text addresses evidenced to the court by affidavit.

3. This summons and the affidavits in support which have been filed in court today are to be served upon the defendant by 5 pm Thursday 5 March 2015.

4. The matter is listed at 9 am on 13 March 2015 before the duty registrar for directions.

5. Orders are to be entered forthwith.

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