BIGJIG PTY LTD (ACN 067 537 964) and PHILIP GEBAUER and LISA FLETCHER

In the recent case, BIGJIG Pty Ltd, Philip Gebauer, and Lisa Fletcher brought an appeal against the orders made by the primary judge in relation to the enforcement of a Mareva injunction. The defendants, including Gebauer and Fletcher, were former employees and directors of the plaintiff company. The dispute arose from alleged breaches of fiduciary duty and the dissipation of company assets. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was tasked with determining whether the primary judge had erred in requiring the plaintiff to pay money into a solicitors' trust account, rather than directly restraining the dissipation of the defendants' assets. Additionally, the court needed to assess whether there was sufficient evidence to support the formal order made, particularly whether it adequately mentioned the amounts to be provided as security, and if there was enough proof of a risk that the defendants' property might be placed beyond the plaintiff's reach. The case hinged on the interpretation and application of the Mareva injunction provisions under Australian law.

The court found that while the primary judge had correctly identified the need for a Mareva injunction, the order requiring the plaintiff to pay money into a trust account was not the appropriate enforcement mechanism in this instance. The court held that the formal order made by the primary judge did not sufficiently address the amounts to be provided as security and lacked clear evidence demonstrating the risk of dissipation of the defendants' assets. Consequently, the appeal was partially allowed, and the case was remitted back to the primary judge for reconsideration of the enforcement order, ensuring that it adequately reflected the security requirements and the risk of dissipation.

The court's final order was that the plaintiff must have a proprietary interest, by way of security or otherwise, in the sum required for the Mareva injunction. If this condition was not met, the appeal was to be dismissed with costs. This decision highlights the importance of clear and specific orders in Mareva injunction cases, ensuring both the protection of assets and the fair enforcement of legal remedies.