Auto Group Ltd (Receivers and Managers Appointed) v England

[2006] NSWSC 141

CITATION:	Auto Group Ltd (Receivers & Managers Appointed) v England [2006] NSWSC 141
HEARING DATE(S):	10 March 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	03/10/2006
DECISION:	Freezing order extended. Asset disclosure order made.
CATCHWORDS:	PRACTICE - Mareva orders - asset disclosure order sought on return date of Notice of Motion - defendant served, but does not appear - appropriateness of making asset disclosure order - terms of asset disclosure order
CASES CITED:	Macquarie Bank v Riley Street Nominees [2005] NSWSC 162
PARTIES:	Auto Group Ltd (Receivers & Managers Appointed) - First Plaintiff Andrew John Love & 2 Ors (in their capacity as Receivers & Managers of Auto Group Ltd & Auto Group Dandenong Pty Ltd) - Second Plaintiff Auto Group Dandenong Pty Ltd (Receivers & Managers Appointed) - Third Plaintiff Mark England - Defendant
FILE NUMBER(S):	SC 1646/06
COUNSEL:	D R Pritchard; E C Muston - Plaintiffs No Appearance - Defendant
SOLICITORS:	Henry Davis York - Plaintiffs No Appearance - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

FRIDAY 10 MARCH 2006

1646/06 AUTO GROUP LTD (RECEIVERS & MANAGERS APPOINTED) & ORS v MARK ENGLAND

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is a matter in which a Mareva order has previously been granted by the Court against the defendant, in the nature of a freezing order. The matter was returnable today. The defendant was personally served on 3 March 2006, in a Sydney suburb.

2 At the commencement of the hearing today, the defendant was called and did not appear. I made available to Mr Pritchard, counsel for the plaintiffs, two facsimiles apparently sent by the defendant, one to Bergin J (who had originally been listed to hear this matter today) on 8 March 2006 and another to my chambers on 9 March 2006. In each of those facsimiles the defendant sought an adjournment for some weeks to enable him to obtain legal representation, or perhaps dispose of the matter outside the Court system. In the facsimile to Bergin J of 8 March 2006 he said, “During that period I agree to comply with the terms and conditions of the Court order issued to me on March 3rd, 2006.” The defendant now lives, it seems, in Victoria.

3 The order which was served on 3 March 2006 appears, on its face, to be one which restrains the defendant until further order from disposing of various of his assets or dealing with them. Mr Pritchard accepts that it is inappropriate for such an order to be made on an ex parte application, and, today, himself seeks to vary that order so that it becomes an order which applies for a period of some weeks.

4 I invited Mr Pritchard, at the commencement of the hearing, to make such submissions as he wished concerning the defendant’s facsimiles. He submitted that it was appropriate for the matter to proceed, notwithstanding the defendant’s absence. So far as the freezing order was concerned, it appears from the defendant’s facsimile that he does not oppose it. Mr Pritchard also sought an asset disclosure order.

5 The defendant is a former senior executive of the plaintiff. It is inappropriate on an ex parte application to traverse in very much detail the evidence. However, I am satisfied that the evidence before me is evidence which, if it were the only evidence in the case at the end of day, could suffice to make out a case that the defendant has defrauded the plaintiff, of an amount in excess of $1.2 million. I recognise it is a real possibility that the evidence at the end of the day might differ from the evidence now before me, but today any decision can only be made on the basis of the evidence now put before me.

6 In Macquarie Bank v Riley Street Nominees [2005] NSWSC 162 I gave consideration to whether it was appropriate to make an asset disclosure order against a defendant who has been served with an application for a Mareva order, but who has failed to attend Court on the return date. I apply the same principles here. It is appropriate to proceed with today’s hearing even though the defendant is absent.

7 As explained in that case, it is necessary that any asset disclosure order be made in terms which protects the privilege against self-incrimination of the person against whom the order is made, if that person wishes to claim any such privilege. Mr Pritchard does not contest that it is appropriate for that protection to be built into the order.

8 The evidence satisfies me that it is appropriate not only to extend the freezing order which has been made, but also to make an asset disclosure order, subject to the same sort of qualification as I outlined in Macquarie Bank v Riley Street Nominees [2005] NSWSC 162 to protect any claim of a privilege against self-incrimination.

9 The order which the plaintiff seeks is one which permits the defendant not only to pay ordinary personal living expenses and legal fees reasonably incurred in these proceedings, but also legal costs and expenses reasonably incurred in relation to certain criminal charges which apparently have been brought against him, up to a limit of $20,000. In my view, it is appropriate to include that extra exception to the Mareva order. If the defendant wants to apply to the Court to vary any of these exceptions to the Mareva order, or to include any additional ones, he can always (on the basis of appropriate evidence) do so.

10 I make orders in accordance with short minutes of order which I initial and date today’s date. These orders may be entered forthwith. The exhibit may be returned.

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