Australian Competition & Consumer Commission v Giraffe World Pty Ltd

[1999] FCA 1476

ACCC v Giraffe World Pty Ltd [1999] FCA 1476

ACCC v Giraffe World Pty Ltd [1999] FCA 1476

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v GIRAFFE WORLD AUSTRALIA PTY LTD [ACN 078 012 521] (in Liquidation) & ORS

NG 421 of 1998

MOORE J

23 SEPTEMBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 421 OF 1998

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND:

GIRAFFE WORLD PTY LTD [ACN 078 012 521]

(in Liquidation)

Respondent

AKIHIKO MISUMA

Second Respondent

ROBIN HAN

Third Respondent

MARK SCOTTE

Fourth Respondent

LUCILLE ORR

Sixth Respondent

#DATE 23:09:1999

JUDGE:

MOORE J

DATE OF ORDER:

23 SEPTEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.       Upon the Applicant by its Counsel giving the usual undertaking as to damages the Second and Third Respondents and Yukari Misuma within fourteen days of the giving to them or any of them of notice of this Order deliver or cause to be delivered to the Applicant care of the Australian Government Solicitor, Level 23, 133 Castlereagh Street, Sydney, a full affidavit sworn by them setting out:-

(a)       the name and address of any bank, building society or other financial institution at which there is an account in the name or under the control, of the Second and Third Respondents or Yukari Misuma, or any of them, together with the number of such account and the balance therein at the date of service of notice of the Order upon them or either of them;

(b)       the name and address of any person or persons indebted to the Second and Third Respondents and Yukari Misuma or any of them, at the date of service of notice of this Order upon them or any of them, and the amount of the debt or debts owed by such person or persons;

(c)       an itemised inventory of any business assets owned by the Second and Third Respondents and Yukari Misuma, or any of them;

(d)       an itemised inventory of any other property, whether real or personal, owned by the Second and Third Respondents and Yukari Misuma or any of them, or in respect of which the Second and Third Respondents and Yukari Misuma or any of them have or has an interest;

(e)       in respect of any of the property referred to above, whether it has been given as security for any debt, and, if so, the nature of the security and the debt so secured.

The Court grants leave to the Applicant to give any bank, building society or other financial institution with which the Second and Third Respondents and Yukari Misuma or any of them conduct, or conducts any account or accounts, notice of this Order.

2.       Service of these orders may be effected on Akihiko Misuma and Yukari Misuma by delivery to Blessington Judd, Solicitors, Level 22, 133 Castlereagh Street, Sydney.

3.       Upon the Applicant by its Counsel giving the usual undertaking as the damages Order 12 made on 2 September 1999 continue until and including 12 November 1999, or until further order.

4.       The parties, including Yukari Misuma, have liberty to apply generally on 24 hours notice.

5.       The matter be listed for further directions at 9.30am on 12 November 1999

Note:       Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 421 OF 1998

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND:

GIRAFFE WORLD PTY LTD [ACN 078 012 521]

(in Liquidation)

First Respondent

AKIHIKO MISUMA

Second Respondent

ROBIN HAN

Third Respondent

MARK SCOTTE

Fourth Respondent

LUCILLE ORR

Sixth Respondent

JUDGE:	MOORE J
DATE:	23 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(delivered ex tempore)

MOORE J

1 This is an application by the Australian Competition and Consumer Commission ("the ACCC") for orders under s 87A of the Trade Practices Act 1974 (Cth)("the TP Act") and ancillary orders under s 23 of the Federal Court of Australia Act 1976 (Cth)("the FC Act"). The orders are sought in the context of anticipated proceedings under s 87(1A) and 87(1B) of the TP Act following upon a judgment and orders of Lindgren J. Reasons for judgment of His Honour were published on 26 August 1999 and the orders were made on 2 September 1999. His Honour made certain declaratory orders concerning the conduct of Giraffe World Australia Pty Limited ("Giraffe"), Mr Misuma and Mr Han.

2 The proceedings proposed under ss 87(1A) and 87(1B) of the TP Act may result in liability on the part of Giraffe and Mr Misuma and Mr Han. The orders that are sought under s 87A of the TP Act and s 23 of the FC Act are designed to preserve property that may be available in the event of those proceedings under ss 87(1A) and 87(1B) succeeding. The statutory test posited by s 87A is that it is necessary or desirable for the purpose of preserving money or other property held by or on behalf of the person who may be liable under the proceedings identified in paragraphs (a) to (d) in s 87A(1). In this case, as I noted earlier, that is, relevantly, Giraffe or Mr Misuma.

3 The Court has to be satisfied on the basis identified in paragraph (e) of s 87A(1) and also be satisfied that any order made will not unduly prejudice the rights and interests of any other person. In the present case the proceedings determined by Lindgren J were brought against a background where mareva injunctions had, by consent, issued in May 1998 and were varied from time to time. The central issue raised in these proceedings today is whether, as a matter of fact, Mrs Misuma holds property on behalf of one of the people against whom orders may be made in the proceedings under ss 87(1A) and 87(1B).

4       My attention was drawn to evidence that satisfies me that Mrs Misuma received payments from Giraffe in May 1998 totalling approximately $300,000. On behalf of Mrs Misuma it is submitted that there is evidence before the Court that establishes that at least in substantial part Mrs Misuma's liability to Giraffe arising from those transactions in May 1998 has now been satisfied. In particular, my attention has been drawn to material which, it is submitted, established that significant sums were paid by Mrs Misuma in satisfaction of Giraffe's liability arising from the purchase of a helicopter and also in satisfaction of a liability Giraffe had in relation to the lease of a motor vehicle.

5       However, that evidence is not in my opinion sufficiently persuasive to displace what appears to emerge from the evidence relied upon by the ACCC. My confidence in rejecting the evidence upon which Mrs Misuma bases her contention that the moneys advanced by Giraffe have, in substance, been repaid is fortified by the fact that she did not give evidence in these proceedings. It is true an affidavit sworn by her was filed, but leave was not given to read that affidavit because she was not prepared to make herself available for cross-examination. Accordingly, I am satisfied that the mareva injunction earlier made should be perpetuated and no variation should be made to the amount referred to in it.

6       It may well be that by the time the matter comes back before the Court on 12 November 1999 the position will be clearer as to the potential liability of Giraffe and Mr Misuma and the position may also be clearer about Mrs Misuma's liability to Giraffe depending on the course Mrs Misuma might take, on advice. In those circumstances the Court can, if invited, give consideration to varying the orders in so far as they relate to Mrs Misuma, or indeed revoking them. However, in my view, the appropriate course to be followed at this point is to make the orders in accordance with the short minutes, which include an order continuing order 12 made on 2 September to 12 November 1999, and giving the parties, to which I will add Mrs Yukari Misuma, liberty to apply on 24 hours notice.

7       I make the orders in accordance with the short minutes and I adjourn the matter for further directions at 9.30 on 12 November 1999. That date, as I indicated in the course of the hearing, is subject to the availability of Lindgren J to deal with the matter at that time on that day and it may be that some further order will be made varying the time at which the matter comes back before the court for further directions.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        23 September 1999

Solicitor / Advocate for the Applicant:	Mr R Cheung. Blessington Judd
Counsel for the Respondent:	Mr S White
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 September 1999
Date of Judgment:	23 September 1999