Apollo Blinds Australasia Pty Ltd v Messner (No 2)

The Federal Court of Australia was asked to consider an application by Apollo Blinds Australasia Pty Ltd for an extension of freezing orders made in relation to the assets of Mr Messner. The original freezing orders were made in the course of proceedings for infringement of intellectual property rights, specifically trade marks and designs. Apollo Blinds sought the extension of the orders on the basis that it had been unable to locate the assets of Mr Messner, including his bank accounts, and that it believed that he was attempting to dissipate those assets. The case was heard by Justice Bromberg.

The central legal issue was whether Apollo Blinds had established that the requirements for an extension of the freezing orders had been met. The requirements are that there is a serious question to be tried, that the applicant has a good arguable case, and that the balance of convenience favours the making of the order. The Court was also required to consider whether the extension should be for the full amount of the original freezing orders or for a lesser amount, as well as whether the extension should be granted for a fixed period of time or until the conclusion of the proceedings.

Justice Bromberg found that Apollo Blinds had made out a serious question to be tried and had a good arguable case. The Court was satisfied that the balance of convenience favoured the making of the order, in particular because there was a real risk that Mr Messner would dissipate his assets if the orders were not extended. The Court accepted that Apollo Blinds had taken reasonable steps to locate Mr Messner's assets but had been unsuccessful in doing so. Justice Bromberg concluded that an extension of the freezing orders should be made, for the full amount of the original orders, for a period of three months. The Court considered that a shorter period would not provide sufficient time for Apollo Blinds to locate the assets, while a longer period risked prejudicing Mr Messner's right to a fair trial.

The Court made an order extending the freezing orders in relation to Mr Messner's assets for a period of three months from the date of the judgment. The order was made on terms that were intended to balance the need to protect Apollo Blinds' rights with the need to ensure that Mr Messner was not prejudiced in the proceedings. The terms included provisions for Mr Messner to be given notice of the application for the extension, to be given an opportunity to make submissions in response to the application, and to be given an opportunity to apply to the Court for the discharge or variation of the order if his circumstances changed.