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Bax Global (Australia) Pty Ltd v Evans

Bax Global (Australia) Pty Ltd v Evans

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Case Copied 10 August 1999 39 min read

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Reported Decision: [1999] 47 NSWLR 538

New South Wales

Supreme Court

CITATION: Bax Global v Evans [1999] NSWSC 815

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 2153/99

HEARING DATE(S): 13 & 26 May 1999,

JUDGMENT DATE:
10 August 1999

PARTIES :

Bax Global (Australia) Pty Ltd (P)
v
Luke Evans & Ors (D)

JUDGMENT OF: Austin J

COUNSEL : J R J Lockhart (P)
M W Young (D2 & D3)

SOLICITORS: Allen Allen & Hemsley (P)
Konstan Lawyers (D2 & D3)

CATCHWORDS: Supreme Court - interlocutory orders - Mareva orders - ancillary disclosure order - basis of jurisdiction - discovery and interrogatories as alternatives - evidence - privilege against self-incrimination - Equity Division practice on disclosure orders - stay of proceedings

ACTS CITED: Evidence Act 1995 (NSW), s 128
Supreme Court Act 1970 (NSW), ss 23, 66(4)

CASES CITED: A J Bekhor & Co Ltd v Bilton [1981] 1 QB 923
A v C [1980] 2 All ER 347
AMP General Insurance Ltd v Prasad [1999] NSWSC 252 (23 March 1999) and [1999] NSWSC 349 (16 April 1999)
Aslanis v Brambles Australia Ltd (1997) 82 IR 220
Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) 1 NSWLR 155
Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461
Cardile v LED Builders Pty Ltd (1999) 162 ALR 294
HMP Industries Pty Ltd v Graham (No.2728/96, Young J, unreported, 17 July and 27 August 1996;
Istel Ltd v Tully [1993] AC 45
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep 509
McMahon v Gould (1982) 1 ACLC 98
National Australia Bank Ltd v Rusu (No.4371/96, Cohen J, unreported, 13 February 1997; Hamilton J, unreported, 6 April 1998 (two judgments), 7 May 1998)
Nippon Yusen Kaisha v Karageorgis [1975] 3 All ER 282
Oades v Hamilton (1987) 11 NSWLR 139
Pelechowski v The Registrar, Court of Appeal (1999) 162 ALR 336
Reid v Howard (1995) 184 CLR 1
Vasil v National Australia Bank Limited [1999] NSWCA 161
Vasil v National Australia Bank Ltd [1999] NSWCA 161

DECISION: Motion for specific disclosure order stayed until further order, with liberty to apply

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

10 AUGUST 1999

2153/99 - BAX GLOBAL (AUSTRALIA) PTY LTD v EVANS & ORS

JUDGMENT

1 HIS HONOUR: These proceedings were commenced by summons filed on 29 April 1999, by which the plaintiff claims damages as final relief and seeks interlocutory orders. The cause of action appears to relate to the conversion of some computer equipment. The interlocutory orders are ‘Mareva orders’ and ancillary orders by way of disclosure of assets. 2 The proceedings first came before Bergin J on an ex parte basis on 29 April 1999. Her Honour made the Mareva orders and made orders for the abridgment of time for service. When the matter returned to her on 4 May 1999, she extended the Mareva orders and stood the matter over to 13…

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

Case: [1999] NSWSC 815
Decision Date: 10 August 1999

CaseChat Overview and Summary

In the case of Bax Global (Australia) Pty Ltd v Evans, the plaintiff, a company involved in the logistics and transportation industry, sought various orders against the defendant, an individual, to secure debts owed to the plaintiff. The proceedings were heard in the Supreme Court of New South Wales, with the Equity Division exercising its jurisdiction to consider the plaintiff's application for a Mareva order, an ancillary disclosure order, and other relief. The plaintiff argued that the defendant had significant assets and was at risk of dissipating them, thereby potentially depriving the plaintiff of any recovery.

The court was required to determine whether it had the necessary jurisdiction to hear the case and grant the relief sought. The plaintiff also sought clarification on the appropriate procedures for discovery and interrogatories, given the defendant's claim of privilege against self-incrimination. Additionally, the court had to consider whether the ancillary disclosure order was justified and whether there were grounds to stay the proceedings pending the resolution of related matters in other jurisdictions.

The court found that it did have jurisdiction to hear the case, as the subject matter related to equitable remedies and the protection of the plaintiff's potential rights. The court determined that discovery and interrogatories could be ordered as alternatives, allowing the defendant to choose the least intrusive method of providing the requested information. The court also found that the ancillary disclosure order was appropriate in this case to ensure that the plaintiff could effectively pursue its claims. Ultimately, the court decided not to stay the proceedings, as it was in the interests of justice to proceed with the case. The court granted the plaintiff's application for the Mareva order and the ancillary disclosure order, while also providing guidance on the use of discovery and interrogatories.

Orders