Australian Competition & Consumer Commission v Top Snack Foods Pty Ltd - [1997] FCA 380

CATCHWORDS

PRACTICE AND PROCEDURE - application for interlocutory relief - application for affidavit to be sworn by third respondent disclosing third respondent’s financial status - whether Court has power to grant such relief - information in affidavit relevant to any subsequent application for a Mareva injunction - consideration of principles to guide discretion to grant application for affidavit - whether there is a danger that the third respondent may dispose of assets in order to defeat any judgment that might be obtained - application granted

Federal Court of Australia Act 1976 (Cth), s 23

Jackson v Sterling Industries Ltd (1987) 162 CLR 612, cited
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, cited

AUSTRALIAN COMPETITION & CONSUMER COMMISSION - v -
TOP SNACK FOODS PTY LTD, GEORGE MANERA, NICHOLAS KRITHARAS
and SELINA MANERA

No NG 782 of 1996

Tamberlin J
Sydney
16 May 1997

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 782 of 1996
GENERAL DIVISION                 )

BETWEEN:          AUSTRALIAN COMPETITION
  & CONSUMER COMMISSION
  Applicant

AND:              TOP SNACK FOODS PTY LTD
  (ACN 064 180 801)
  First Respondent

GEORGE MANERA
   Second Respondent
NICHOLAS KRITHARAS
  Third Respondent
SELINA MANERA
  Fourth Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       16 MAY 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

A full affidavit be sworn and served by the third respondent on or before 23 May 1997 which sets out full details as at today's date, 16 May 1997, as to:

(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 third respondent, together with the number of such account and the balance therein;

(b)the name and address of any person or persons indebted to the third respondent and the amount of the debt or debts owed by such persons;

(c)an itemised inventory of any business assets owned by the third respondent;

(d)an itemised inventory of any other property, whether real or personal, owned by the third respondent or in respect of which the third respondent has an interest;

(e)in respect of any of the real or personal 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 third respondent pay the costs of the applicant of this application.

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

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 782 of 1996 GENERAL DIVISION )

BETWEEN:          AUSTRALIAN COMPETITION
  & CONSUMER COMMISSION
  Applicant

AND:              TOP SNACK FOODS PTY LTD
  (ACN 064 180 801)
  First Respondent

GEORGE MANERA
  Second Respondent
NICHOLAS KRITHARAS
  Third Respondent
SELINA MANERA
  Fourth Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       16 MAY 1997

REASONS FOR JUDGMENT

TAMBERLIN J:
The applicant by Notice of Motion filed…

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.

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Details

AGLC: Australian Competition & Consumer Commission v Top Snack Foods Pty Ltd [1997] FCA 380
Case: [1997] FCA 380
Decision Date: 16 MAY 1997

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Competition & Consumer Commission (ACCC) filed a case against Top Snack Foods Pty Ltd, George Manera, Nicholas Kritharas, and Selina Manera, seeking various reliefs, including an affidavit from Nicholas Kritharas disclosing his financial status. The court was required to decide whether it had the power to grant such relief and if the information in the affidavit was relevant to any subsequent application for a Mareva injunction. The principles guiding the discretion to grant such an application were also considered, along with whether there was a danger that the third respondent might dispose of assets to defeat any judgment obtained against him.

The court granted the application, finding that the Federal Court has the power to issue a Mareva injunction and that the information in the affidavit was relevant to any subsequent application for such an injunction. The court also determined that there was a danger that the third respondent might dispose of assets to defeat any judgment obtained against him, as evidenced by the unusual circumstances surrounding a mortgage agreement and the timing of the sale of certain properties. Therefore, the court ordered that Nicholas Kritharas must swear and serve a full affidavit detailing his financial status by a specified date. Additionally, Nicholas Kritharas was ordered to pay the applicant's costs of the application.

Orders