BGC Australia Pty Ltd v Minspec Pty Ltd - [2015] WASC 134

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BGC AUSTRALIA PTY LTD -v- MINSPEC PTY LTD [2015] WASC 134

CORAM: MITCHELL J

HEARD: 27 MARCH 2015

DELIVERED : 27 MARCH 2015

PUBLISHED : 17 APRIL 2015

FILE NO/S: CIV 1305 of 2012
CIV 3058 of 2012

BETWEEN: BGC AUSTRALIA PTY LTD
Plaintiff
AND
MINSPEC PTY LTD
First Defendant
MELVYN GEORGE KING
Second Defendant
JOHN THORNTON BROWN
Third Defendant
BYAMBEE PTY LTD as trustee for C BELLOTTI & CO UNIT TRUST trading as C BELLOTTI & CO
Third Party

Catchwords:

Practice and procedure - Application for orders ancillary to prospective freezing orders - Where plaintiff suspects that defendant's assets have been distributed to related parties - Orders against non-party - Orders to compel the production of financial statements - Confidentiality of information disclosed under orders ancillary to prospective freezing orders - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 52A r 3

Result:

Orders ancillary to prospective freezing orders made
Second and third defendants and non-party required to file affidavits

Category: B

Representation:

Counsel:

Plaintiff:     Mr L A Warnick & Ms L J Michelmore
First Defendant            :     Ms R L Bunney
Second Defendant        :     Mr D W Thompson
Third Defendant           :     Ms S P J Tan
Third Party                  :     No appearance

Solicitors:

Plaintiff:     Hotchkin Hanly
First Defendant            :     Cullen Macleod
Second Defendant        :     Thompson Downey Cooper
Third Defendant           :     HopgoodGanim
Third Party                  :     HWL Ebsworth Lawyers

Case(s) referred to in judgment(s):

Nil

MITCHELL J:
(This judgment was delivered extemporaneously on 27 March 2015 and has been edited from the transcript.)

The plaintiff applies for orders under O 52A r 3 of the Rules of the Supreme Court 1971 (WA) or, alternatively, the inherent jurisdiction of the court, for orders requiring the defendants and the wife of the third defendant (Mrs Brown) to swear affidavits providing information about assets which it is alleged they control. The order is sought to enable the plaintiff to obtain information about assets relevant to a prospective freezing order for which the plaintiff anticipates applying.

Legislation

Order 52A r 2(1) empowers the court to make a freezing order for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a judgment or prospective judgment of the court would be wholly or partially unsatisfied. Order 52A r 3(1) empowers the court to make an order ancillary to a freezing order or a prospective freezing order as the court considers appropriate. Order 52A r 3(2) provides:
Without limiting the generality of subrule (1), an ancillary order may be made for either or both of the following purposes:
(a)eliciting information relating to assets relevant to the freezing order or prospective freezing order;
(b)determining whether the freezing order should be made.

Procedural background

The plaintiff operates a quarry situated in the Darling Ranges east of Perth. The plaintiff claims that, in 2009 and 2010, it engaged the first defendant to design, manufacture and supply…

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: [2015] WASC 134
Decision Date: 17 APRIL 2015

CaseChat Overview and Summary

The case between BGC Australia Pty Ltd and Minspec Pty Ltd involved an application for orders ancillary to prospective freezing orders. BGC Australia suspected that Minspec Pty Ltd had distributed its assets to related parties. The court had to determine if it could issue orders against non-parties, compel the production of financial statements, and address the confidentiality of information disclosed under these orders.

The court identified that it could issue orders against non-parties if it was necessary to prevent the dissipation of assets or to ensure the effectiveness of the freezing orders. It also considered whether compelling the production of financial statements was appropriate to ascertain the distribution of assets. Furthermore, the court examined the confidentiality of the information disclosed under these orders, ensuring that sensitive data was protected.

The court ruled that it could indeed issue orders against non-parties to prevent the dissipation of assets. It also found that compelling the production of financial statements was necessary to achieve the objectives of the freezing orders. The court concluded that information disclosed under these orders should be treated with confidentiality, but it could be shared with necessary parties to enforce the orders.

The final orders included the issuance of ancillary orders against non-parties, the compulsion of financial statements, and a confidentiality clause to protect sensitive information.

Orders