Australian Competition and Consumer Commission v Top Snack Foods Pty Ltd
[1997] FCA 1547
•19 DECEMBER 1997
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 782 of 1996 |
BETWEEN: | AUSTRALIAN COMPETITION AND |
AND: | TOP SNACK FOODS PTY LIMITED GEORGE MANERA NICHOLAS KRITHARAS SELINA MANERA ADWAY HOLDINGS PTY LTD NICK KRITHARAS HOLDINGS PTY LTD |
JUDGE: | TAMBERLIN J |
DATE: | 19 DECEMBER 1997 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
(Ex-Tempore Judgment)
In this matter a Notice of Motion was filed on 16 December 1997 by the applicant seeking to restrain a third party to the proceedings, Gatsios Holdings Pty Ltd (“Gatsios”), from mortgaging certain properties and from withdrawing monies from a specified bank account.
A Mareva injunction was granted by this Court on 7 November 1997 against the assets of Gatsios. On 9 December 1997, the solicitors for Gatsios and the KN Trust, wrote to the solicitors for the applicant indicating that they proposed to apply to the Court to increase permissible withdrawals for the education, maintenance and support of the infant beneficiaries of the KN Trust account from $200 per week to $500 per week and to mortgage one of the two properties known as Lots 1 and 3 in Strata Plan 51691 to a maximum amount of $50,000 in order to pay for legal expenses.
I am not prepared to grant leave in this matter to vary the previous order so as to enable payment of the amount of $500 a week for the infant beneficiaries or to permit any mortgage being taken over the property for the purpose of paying legal fees. On the evidence, I am not satisfied that there is a need. I do not think it is appropriate that there should be any relaxation of the Mareva protection which has been imposed in the present case.
There has been a paucity of evidence on the part of Gatsios in relation to the KN Trust in order to justify any such variation. I am not persuaded that there should be any increase in payments from $200 per week to $500 per week for the infant beneficiaries of the trust, nor do I think it is appropriate that there should be a mortgage over the property as this will substantially diminish the efficacy of the Mareva relief previously granted.
I now turn to the orders sought on the Notice of Motion before me. To some extent par 2(b) of the Motion involves a technical variation in relation to the orders made earlier. This is because there is a reference to an amount of $200 per week, whereas the orders of 7 November 1997 refer to “amounts less than $200 from time to time”.However, it seems clear from the letter of 9 December 1997 from the solicitors for Gatsios to the solicitors for the applicant, that a limit of $200 per week was understood by those advising the respondents to be the effect of the earlier order. I think that the orders in the Notice of Motion ought be made and accordingly I make those orders. I reserve liberty to Gatsios to apply on 14 days notice. The costs of the Motion are to be costs in the cause.
Accordingly, I make orders 1, 2, 3 and 4 as in the Motion. However, I order that paragraph (b) shall replace the earlier form of the order. I also vary order 3 as framed in the Motion so that no notice to vary shall be given by Gatsios before 15 January 1998.
| I certify that this and the preceding two pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin |
Associate:
Dated: 19 December 1997
| Counsel for the Applicant: | Mr I Faulkner |
| Solicitor for the Applicant: | Australian Government Solicitor |
| Counsel for Gatsios Holdings Pty Ltd: | Mr M W Hadley |
| Solicitor for Gatsios Holdings Pty Ltd: | Conway O’Reilly |
| Date of Hearing: | 19 December 1997 |
| Date of Judgment: | 19 December 1997 |
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