| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMERCIAL COURT COMMERCIAL LIST – DIGBY J | Not Restricted |
S ECI 2020 0604
| ARGYLE BUILDING SERVICES PTY LTD (ACN 151 322 520) | Plaintiff |
| v | |
| MARK FRANEK & ORS | Defendants |
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JUDGE: | Digby J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 and 13 March 2020 |
DATE OF JUDGMENT: | 17 April 2020 |
CASE MAY BE CITED AS: | Argyle Building Services v Franek |
MEDIUM NEUTRAL CITATION: | [2020] VSC 166 |
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EQUITY – Conspiracy – Equitable fraud – Claim under Barnes v Addy principles - Liability for knowing receipt – Liability for knowing assistance – Whether defendant received trust property – Whether defendant knew of dishonest and fraudulent design – Whether funds transferred in breach of fiduciary duty – Whether loss suffered – Exercise of Mortgagees rights - Barnes v Addy (1874) LR 9 Ch App 244 - Property Law Act 1958 (Vic), s 172.
PRACTICE AND PROCEDURE – Freezing order – arguable case - Risk of dissipation of assets – Ex parte application – Requirements of proper disclosure - Allegations involving alleged dishonesty – Supreme Court (General Civil Procedure) Rules 2015 r 37A.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Herskope with Mr S Freire | Kalus Kenny Intelex |
| For the First, Second and Fifth to Eighth Defendants | Mr M Clarke QC with Mr H Kirimov | NOH Legal Pty Ltd |
| For the Third and Fourth Defendants | Ms V Plain | Mark Halse |
| No appearance for the Ninth Defendant |
HIS HONOUR:
General background
These reasons relate to the return of the plaintiff’s Summons dated 7 February 2020 where the plaintiff, Argyle Building Services Pty Ltd, sought interim asset preservation orders (freezing order) against the first to eighth defendants’ assets up to the value of $1,085,156.37.
The Summons was heard ex parte on 11 February 2020 and orders were made substantially in the terms sought by the plaintiff on this date. Ancillary orders were also made requiring the first to eighth defendants to provide information to the plaintiff relating to the assets held by each of those defendants at or before the first return date of the Summons on 17 February 2020.[1]
[1]By order of 17 February 2020 the time for the provision of information was extended to 12:00pm on 24 February 2020.
The return of the Summons was heard on 12 March 2020 and the plaintiff sought the continuation of the freezing order. The first, second, and fifth to eighth defendants (the first defendant group) opposed the continuation of the freezing order and sought the discharge of the freezing order currently in place. The third and fourth defendants (the second defendant group) also opposed the continuation of the freezing order and sought the discharge of the current order. One Three Wilson Pty Ltd (in Liq) (the ninth defendant) did not attend the hearing of the matter and notified the parties that it did not intend to make any submissions in relation to the applications on foot.[2]
[2]By email sent 27 February 2020 the solicitor for the…
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- AGLC
- Argyle Building Services v Franek [2020] VSC 166
- Case
- [2020] VSC 166
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the defendant's knowledge of the dishonest and fraudulent design, whether the defendant received trust property, and whether the defendant exercised the mortgagee's rights in breach of fiduciary duties. Additionally, the court had to consider whether the plaintiff had suffered a loss as a result of the defendant's actions. The court also needed to assess the requirements for obtaining a freezing order under the Supreme Court (General Civil Procedure) Rules 2015 and whether an arguable case existed, considering the risk of dissipation of assets and the need for proper disclosure in the context of allegations involving alleged dishonesty.
The court found that the plaintiff had established an arguable case of knowing receipt and knowing assistance, given the evidence presented. The court determined that the defendant had indeed received trust property and was aware of the dishonest and fraudulent design. The court also held that the plaintiff had suffered a loss as a result of the defendant's actions. In exercising the mortgagee's rights, the defendant breached their fiduciary duties. Consequently, the court granted the plaintiff's application for a freezing order, considering the risk of dissipation of assets and the need for proper disclosure in light of the allegations of dishonesty. The court held that the plaintiff had met the requirements for an ex parte application under the Supreme Court (General Civil Procedure) Rules 2015 r 37A.
The court ordered that the defendant's assets be frozen to prevent dissipation and directed the defendant to provide proper disclosure as required. The court further directed the parties to proceed with the case, pending further orders. The court's decision highlighted the importance of the principles set out in Barnes v Addy and the need for fiduciaries to act in the best interests of the beneficiaries, as well as the significance of the court's role in protecting the interests of those affected by breaches of fiduciary duty.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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