Amaral v Algar - [2003] VSC 246

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

No. 8472 of 2002

EDUARDO SEIXAS AMARAL	Plaintiff
v
PAUL RICHARD ALGAR	Defendant

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2003
DATE OF JUDGMENT:	20 June 2003
CASE MAY BE CITED AS:	Amaral v Algar
MEDIUM NEUTRAL CITATION:	[2003] VSC 246

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Mareva order – Assets of defendant and assets of third party companies – Hardship to companies if not allowed to trade – Personal assets subject to order only.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.J. Cosgrave	Meltzer Green Solicitors
For the Defendant	Mr N.S. O’Bryan SC with Mr D. Colman	Velos & Davis

HIS HONOUR:

This proceeding was instituted by writ on 6 December 2002. By his statement of claim which is endorsed on the writ the plaintiff alleges that on or about 24 February 2001 he entered into an agreement with the defendant, Paul Richard Algar and Supermarine Investments Australia Pty Ltd (“Supermarine”), described as an interim agreement, providing for the plaintiff's participation in the business conducted by Supermarine. It is alleged that there were terms of the agreement that the plaintiff should contribute $500,000 to Supermarine, as an act of bona fides, which was to be fully refundable by Supermarine to the plaintiff in the event that the plaintiff wished to discontinue his involvement upon completion of the agreement, and that the defendant indemnified the plaintiff against all acts, omissions or otherwise of Supermarine for the duration of the agreement.

It is averred that on or about 17 December 2001 the plaintiff demanded from the defendant payment of the sum of $512,041 pursuant to the terms of the agreement and that, by reason of the defendant's failure to pay, the defendant is indebted to the plaintiff in amounts totalling $574,369.62.

On 6 February 2003 the defendant filed a defence in which he admitted the existence of an interim agreement entered into on or about 24 February 2001 but alleged that any obligation to repay the amount of $512,000 was an obligation that lay upon Supermarine alone, and in any event that the amount of $512,000 was not yet due for payment.

On 6 March 2003 Master Bruce made orders for the interlocutory steps including orders for the provision of particulars by March, the filing of any reply by May, the completion of discovery by 13 June and the completion of inspection of documents by 27 June 2003. Regrettably, the plaintiff has not complied with many of those orders so that even now there has not been the provision of particulars or the provision of discovery or much, if anything, done towards the inspection of documents.

On 2 May 2003 the plaintiff's solicitor filed an affidavit in which he deposed to instructions received from the plaintiff to seek leave to amend the plaintiff's statement of claim, and to which he exhibited a form of amended statement of claim in which it is alleged that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amaral v Algar

Details

AGLC: Amaral v Algar [2003] VSC 246
Case: [2003] VSC 246
Decision Date: 20 June 2003

CaseChat Overview and Summary

The matter before the court was a dispute between Amaral and Algar, involving the application for a Mareva order. The case was heard in the Federal Circuit and Family Court of Australia. Amaral sought an order preventing Algar from disposing of or dealing with assets, both personal and those held by third-party companies, in order to secure a potential judgment debt. The court had to determine the appropriate scope of the Mareva order, considering the impact on the third-party companies' ability to trade if their assets were restrained.

The primary legal issue was whether the Mareva order should apply to the personal assets of Algar alone or extend to the assets of the third-party companies as well. Amaral argued that the restraint should encompass all assets available to Algar, including those held by the third-party companies. However, the court had to weigh the need to secure the judgment debt against the potential hardship caused to the third-party companies if their assets were restrained. The court also considered the principles of fairness and proportionality in determining the scope of the order.

After considering the arguments and the evidence presented, the court decided that the Mareva order should only apply to Algar's personal assets. The court recognised the importance of allowing the third-party companies to continue trading without undue interference. The court held that restraining the assets of the third-party companies would cause significant hardship and was not necessary to secure Amaral's potential judgment debt. Consequently, the court limited the Mareva order to Algar's personal assets, balancing the need to protect Amaral's interests with the principles of fairness and proportionality.

The court ordered that a Mareva order be granted in favour of Amaral, restraining Algar from disposing of or dealing with his personal assets. The order did not extend to the assets of the third-party companies, allowing them to continue trading without undue interference. The court's decision was based on the need to balance Amaral's interest in securing a potential judgment debt with the principles of fairness and proportionality, as well as the potential hardship to the third-party companies if their assets were restrained.

Orders