Avery v Boston

[2004] VSC 459

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8876 of 2004

MAVIS TERESA AVERY	Plaintiff
v
ALANNA MARY BOSTON and ANOTHER	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 NOVEMBER 2004
DATE OF JUDGMENT:	1 NOVEMBER 2004
CASE MAY BE CITED AS:	AVERY v BOSTON & ANOR
MEDIUM NEUTRAL CITATION:	[2004] VSC 459

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Injunction – Mareva injunction – Ex parte application -Assets of conveyancing business – Injunction granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Clarke	Moores Legal
For the Defendant	No appearance

HIS HONOUR:

1. I have now looked at all the material, with a fairly quick assessment of the exhibits, but I am satisfied, on the basis of the material which has been placed before me, that this is a matter in which it is appropriate for a Mareva injunction to be granted.

1. It appears that the plaintiff left with the defendants the proceeds of the sale of her matrimonial home in Apollo Bay.  Those proceeds, or at least a substantial part of them, some being disbursed in accordance with the plaintiff's directions, were held by the defendants, who, on the material before me, operate a conveyancing business, because the plaintiff was in the course of purchasing a unit into which she would move on the completion of the sale of the matrimonial home.  A deposit was paid for the unit, then presently under construction, with the balance to be paid on settlement;  that was originally set down for 31 August this year.  Settlement did not take place on that day because the construction of the unit had not then been completed.  As the date for completion grew nearer, the plaintiff took steps to re-establish contact with the defendants, that contact not having been necessary following the settlement of the sale of the matrimonial home. 

1. The history of the plaintiff's attempts to ascertain her position in relation to the balance of the purchase price of the unit and the defendants' actions in retaining that sum for her indicate that there are grounds for concern about the future conduct of the conveyancing practice, and indeed about its conduct in the past.  There is reason to think that the defendants have ceased to practise and that the financial affairs of the conveyancing business may leave much to be desired.  In those circumstances, there is, it seems to me, a fear that, unless a Mareva injunction is granted, the defendants will dissipate whatever assets they currently hold and which would, if not dissipated, be available should a judgment be obtained by the plaintiff against them. 

1. I will accordingly order that a Mareva injunction be issued, on the giving of the undertakings that are set out in the draft orders which have been submitted to me this morning.  Mr Clarke, do you give those undertakings?

MR CLARKE:  Yes, sir.

HIS HONOUR: 

1. Those undertakings being given, I will make orders generally in the form of the orders submitted to me.  They will provide that the assets restrained pursuant to the order be those set out in paragraph 2(a) of the draft, and paragraph 2(b), with the substitution of the property referred to in paragraph 2(c) by a property the registered proprietor of which appears to be the first defendant, although there is a discrepancy between the first given name of the registered proprietor and the first given name of that defendant. 

1. The order will also provide that there be served on the defendants an amended statement of claim and the orders made by me today.  The orders will include an order that the summons be adjourned to Friday 12 November 2004.  I think that covers everything, does it not?

MR CLARKE:  Yes.  I should indicate, sir, that the paragraph 2, the assets have been listed, there is in fact an absolute injunction made by the present paragraph 1 with respect to assets, and then paragraph 2 gives a definition of what the assets are, in effect.

HIS HONOUR:  I understand that.  If what I have just said conflicts with that - I don't think it did, but if it did, then I did not intend that there be a conflict.

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