Bostik (Australia) Pty Ltd v Gorgevski (No 1)

[1992] FCA 209

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE	) No. NB963 of 1985
STATE OF NEW SOUTH WALES	1

RE :	TEDROS NADER
EX PARTE:	THE OFFICIAL TRUSTEE IN BANKRUPTCY
Applicant
GADENS RIDGEWAY 1st Cross-Applicant
GEORGE WAKIM 1st Cross-Respondent
KARIME WAKIM 2nd Cross-Applicant
GADENS RIDGEWAY 2nd Cross-Respondent
GEORGE WAKIM 3rd Cross-Respondent

CORAM : HILL J

U: SYDNEY

DATED :  24 APRIL 1992

REASONS FOR JUDGMENT

The present matter comes before the court by way of an application by the Official Trustee in Bankruptcy ("the Trustee"), the Trustee of the bankrupt estate of Mr Ted Nader ("the bankrupt"), for directions.

given to them of the application for directions, Gadens moved the

The need to make such an application arose from a claim by a firm of solicitors, Gadens Ridgeway ( "Gadens") to be entitled to a lien over moneys held by the Trustee on behalf of a creditor in the bankrupt estate, Mr Wakim. Upon notice being

court for orders that they and M r Wakim be joined as parties to the proceedings. By the same motion Gadens sought orders, inter alia, that moneys payable by the Trustee be paid into an interest bearing account in the joint names of Gadens and a solicitor nominated by Mr Wakim pending the determination of certain Supreme Court proceedings, or alternatively, an injunction restraining Mr Wakim from dealing in any way with the moneys he would receive from the Trustee.

The documentary evidence adduced was voluminous, although at the end of the day the facts can be reduced to a relatively small compass. Except in respect of Mr Wakim, no issue of credit was raised and indeed there is little dispute as to the relevant facts.

The saga of Mr Wakim's litigation begins in 1980. On
26 March of that year he was injured whilst working at the Amoco

Lakemba Service Station. The building on which the service

commenced proceedings against Mr Nader. In these proceedings he

station was constructed was owned by Mr and Mrs Nader. Mr Wakim

was advised by a number of solicitors, including Ebsworth & Ebsworth ( " E b s w o r t h s " ) . Ultimately, judgment in the sum of $786,801 was obtained by him against Mr Nader. Apparently only a small part of this amount was covered by insurance. On 18 October 1985, Mr Nader became bankrupt upon his own petition and the Trustee became the Trustee of the bankrupt estate. Mr Wakim proved for the unpaid part of the judgment debt in the bankruptcy.

Mr Wakim formed the view that ~bsworths, as the

solicitors ultimately acting for him in the proceedings against Mr Nader, had been negligent in not bringing proceedings against Mrs Nader as it appeared that Mrs Nader had conducted the service station business in partnership with her husband. In the result, proceedings were initiated by Mr Wakim against Ebsworths for damages alleging negligence on the part of the solicitors in acting for him in the claim against Mr Nader. These proceedings were numbered 10985 of 1988 in the Supreme Court of NSW. Having regard to a possible defence of failure to mitigate damages, Mr Wakim also commenced, two years previously, proceedings against Mrs Nader. Those proceedings were numbered 11681 of 1986 in the Supreme Court of New South Wales.

In the two Supreme Court proceedings Mr Wakim had a

succession of solicitors acting for him. Ultimately, he turned

well as in respect of matters arising out of the estate of the	to Gadens who acted for him in respect of these two matters, as	bankrupt in the period February 1989 to September 1989 and from
2 February 1990 to 16 March 1990. In between these periods Mr
Wakim instructed another firm of solicitors.
To enable M r Wakim to fund the Supreme Court litigation, an arrangement was entered into by him with the State Bank of New South Wales for a "litigation loan facility" having a limit at the time it was initially negotiated of $15,000. At the time it was arranged, Mr Wakim was represented by the firm MCCaw Johnson. The initial facility, save for approximately $500, was utilised in paying costs of that firm. When Mr Wakim came to instruct Gadens that firm negotiated, with Law Society approval, an extension of the facility to $30,000. By the time it had done so it estimated that it had incurred costs and disbursements of approximately $8,700. The facilitywas extended by the bank, it being a term of the extension that Gadens guarantee the bank repayment of the total facility. This Gadens did, with the result that it effectively became liable to pay to the bank approximately $15,000 which had been expended by M r Wakim on legal costs to another firm of solicitor. The balance of the facility was used to pay costs or disbursements due to Gadens. In the result, the facility had grown to a debit balance of $36,384.81 as at 4 July 1991. Under the terms of the facility and guarantee, once the facility exceeded the limit of $30,000 it became in total due and payable and Gadens became liable to
pay the amount to the bank.
The two Supreme Court proceedings ultimately came on for hearing and occupied a large amount of court time. In the meantime Gadens had been instructed to act for Mr Wakim in respect of three matters concerning, more directly, the administration of the bankrupt estate. The first was to persuade the Trustee to bring an action against Mrs Nader for contribution in respect of the damages arising out of M r Wakim's acsident. The second was to encourage the Trustee to bring proceedings under s.88G of the Convevancina Act 1991 (NSW) for the appointment of a Trustee for sale of two properties (the one the service station, the other the family home) owned by the bankrupt jointly with his wife. In respect of these proceedings, Mr Wakim agreed to indemnify the Trustee for his expenses. The third matter concerned the possible removal of the Trustee as Trustee of the bankrupt estate presumably for maladministration.
In respect of these three matters, including, of course, obtaining instructions and conferences, according to the computer kept ledger records of Gadens, 541 units of time, each equalling 6 minutes were involved. Bills were apparently sent to Mr Wakim in May 1989 and April 1990 for this work for professional time which, together with disbursements, totalled respectively $4,161.45 and $9,945.96, making a total of $14,107.41. Despite a succession of what must be assumed to have been reminder letters, no payment was made of the total amount
or any part of it. The amount was subsequently written off by Gadens in its accounting records. In oral evidence, a partner
in Gadens estimatedthat approximately one quarter of this amount related to the removal of the Trustee, and one half to the proceedings contemplated by the Trustee to have a Trustee for
sale appointed. In roundterms, therefore, approximately $10,000 is the maximum amount of professional costs relating directly to
the recovery of moneys in the bankruptcy administration.
After a number of days of hearing of the two Supreme Court actions (the proceedings against Ebsworth & Ebsworth
occupied 10 days of hearing, those against Mrs Nader, 12 days of hearing), a compromise of each was negotiated. The proceedings against Ebsworths were compromised upon terms that the compromise be confidential to the parties. In those circumstances I forbear to avert to the terms of it. As a result of a compromise between
Mr Wakim and Gadens, the amount to be paid was paid into a joint
interest bearing account in the names of a solicitor for Mr Wakim and a partner in Gadens. The parties to the ultimate settlement of the claim against Mrs Nader were Mr and Mrs Nader and Mr Wakim
and a company T & N Nader Pty Limited, and the terms of it were
embodied in a deed dated 13 March 1990. The deed, in addition to reciting the matters to which I have already referred, recited:

"In respect of the administration of the bankrupt estate of Tedros Nader negotiations have taken place between the parties and the Official Receiver with respect to the

possible sale of the interest held by the	Official Receiver in the property known as
740 Hume Highway, Yagoona ('the service station property') and the property known as 20 Browning Avenue, Lakemba ('the residential property'). "

The operative part of the deed contained a release of claims between the parties in consideration of the payment by Mr and Mrs Nader of $10,000. For her part, Mrs Nader covenanted in consideration of the execution by Mr Wakim of the terms of settlement that she would offer to purchase the two properties,

together with a share in T & N Nader Pty Limited for $400,000 and on terms and conditions thereafter set out. There is no suggestion that the amount offered (it was ultimately accepted by the Trustee) was other than a proper figure having regard to the fair market value of the property. Mr Wakim covenanted to use his voting entitlement at meetings of creditors to ensure the offer was accepted. A term of the deed was a covenant by Mr Wakim to also withdraw proceedings commenced by him in Lebanon against, inter alia, Mr and Mrs Nader. For some reason not explained, Mr Wakim has not, despite his covenant to do so, in fact discontinued these proceedings and no money has been paid under the settlement deed.

It seems that even prior to the execution of this deed Mrs Wakim had made an offer to purchase the properties. The initial offer, the quantum of which was not in evidence, was inadequate in the view of the Trustee. The Trustee asked that the amended offer be made on or before 15 January 1990. On 7

February 1990, solicitors for Mrs Nader offered to pay $400,000

for the right title and interest of the Trustee in the two properties, together with the Trustee's interest in a share in T & N Nader Pty Limited. This sum was the amount which ultimately was incorporated in the settlement of March 1990.

Following upon the settlement of the claim against Mrs Nader, Gadens requested that the amount payable to Mr Wakim be paid into the joint account containing the moneys derived from the Ebsworth & Ebsworth settlement as additional security for the costs and disbursements owing to Gadens. When this proposal was rejected application was made to the Supreme Court by Gadens effectively to enforce the lien which they alleged for costs. Mr Wakim subsequently sought orders for payment to him of moneys from the Ebsworth & Ebsworth settlement and for delivery of a proper bill of costs by Gadens in relation to all proceedings, including what were referred to as "Federal Court proceedings", being work done by Gadens in respect of the estate of the bankrupt. These matters ultimately came before Smart J and are the subject of an unreported judgment dated 27 August 1990.

In that judgment his Honour noted that Gadens had claimed to be entitled to approximately $120,000 for costs and disbursements, the disbursements including counsel's fees of $22,000 and other disbursements of $20,000. It was noted that there existed a dispute between Mr Wakim and Gadens as to whether the matter was the subject of legal aid, this being disputed by

Gadens who had a letter signed by Mr Wakim (under duress so he	apparently alleged) in which he acknowledged apparently that he
could be required to:

". . . reimburse costs to the Legal Aid

Commissioner out of my own funds."

Smart J held that Gadens had a strong case that the costs of the proceedings against Mrs Nader at least were not the subject of legal aid. His Honour noted the rendering of accounts by Gadens for profit costs of $79,593.05. His Honour held that Gadens were entitled to a lien over the proceeds of the action against Mrs Nader to the extent of the costs related to that action, but deferred making any order until the position in relation to the Ebsworth & Ebsworth moneys was finalised.

Subsequently, two bills of costs in itemised form were prepared by Gadens. Those bills are dated 26 June 1990. Profit costs under these bills are $79,748.00 in respect of the litigation against Ebsworth & Ebsworth and $46,493.00 in respect of the litigation against Mrs Nader. Disbursements are claimed in respect of each amounting to $45,559.69 and $4,568.00 respectively, bring the total of costs and disbursements claimed to $176,368.69. In August 1990, Mr Wakim brought proceedings in the common law division of the Supreme Court seeking, inter alia, declarations that the bills of cost were void, or alternatively that they be taxed. These proceedings are numbered 14491 of 1990. Gadens cross-claimed for the moneys owing to them for

bound to indemnify them in respect of the litigation loan. The	costs and disbursements, plus a declaration that Mr Wakim was
present situation of these proceedings is referred to later in the judgment.
In the meantime, the Trustee had virtually completed the administration of the bankrupt's estate. Mr Wakim, by this time, had instructed a law firm, Stacks, to act for him and had given the Trustee a direction to pay $130,000 to that firm on account of his entitlement in the bankrupt estate. That sum was paid without reference to Gadens. On 24 April 1991, Einfeld J made consent orders (it seems Gadens were unaware of them) that the sum of $250,000 less certain amounts, including the $130,000
already paid to Stacks, be paid to Mr Wakim. Prior to the making
of that order, Gadens had written to the Trustee on 11 April 1990 asserting that they were entitled to a lien over moneys payable to M r Wakim for costs and disbursement to the extent of $70,000. The claim was referred to Mr Wakim who disputed it. The Trustee refused to acknowledge the lien. In May 1991, Gadens sought confirmation from the Trustee that no moneys had been paid to Mr Wakim and an undertaking that no moneys would be paid without notice being given to Gadens. That letter brought the response that an order had been made by the court under s.109(10) of the Bankru~tcv Act that an interim dividend of $130,000 be paid to Mr Wakim, the payment having been made on 20 March 1991. The Trustee indicated that there was a substantial further amount payable to Mr Wakim as the final distribution in the estate. It
is that correspondence that led to the Trustee seeking direccions from the court and to Gadens seeking, by motion joining Mr VJakim,
a declaration as to the existence of the lien or alternatively a Mareva injunction restraining Mr Wakim from parting with $70,000 of the amount of dividend payable to him.
After evidence in the present proceedings had been completed and submissions advanced on behalf of the Trustee, Gadens and Mr Wakim sought the assistance of Counsel as to the appropriate form of orders in the event that I was prepared to find that a lien existed in respect of so much of Gaden's costs as related directly to the bankruptcy proceedings, and was further prepared to grant, in respect of the balance of costs claimed, a Mareva injunction. I adjourned the proceedings until the next day to permit argument on these matters. I also heard argument as to the appropriate orders as to costs if I were to be of that view.
On the matter coming before me the next day, Mrs Wakim senior, the mother of Mr Wakim, sought leave, through her solicitor, to be joined as a party to the proceedings. There was produced to me a photocopy (the original was said to be missing) of a deed appearing on its face to have been signed on 5 August 1986 pursuant to which Mr Wakim had assigned to his mother, inter alia, all the:

". . . rights shares and interest of the total

dividend to be received from the bankrupt estate

of Tedros Nader."

After hearing argument, I expressed the view that it was appropriate, if at this very late stage Mrs Wakim was to be joined as a party to the proceedings brought by Gadens by way of notice of motion, that, as a condition of leave, she give an undertaking as to damages. I did so because the effect of the intervention and consequent additional evidence and argument that would thereafter become necessary, was to grant a stay of the proceedings, particularly as I indicated that I was otherwise prepared to give judgment at an early date. Whatever the outcome of that judgment, there was a possibility that either Mr Wakim or Gadens would suffer loss by being out of pocket, particularly as the funds, while in the hands of the Trustee, were not earning any interest.

The suggestion that the moneys could be deposited in a joint account in the name of solicitors for each party became impracticable, having regard to a letter from a psychologist tendered by counsel for Mr Wakim which indicated that Mr Wakim's condition was such that in the opinion of the psychologist he was incapable of giving instructions to his legal representative. Mr Wakim purported indeed to withdraw the retainer of his solicitors and counsel; that withdrawal was accepted by both, but even assuming that Mr Wakim was fit to act so as to withdraw the retainer, he in any event refused to agree to the funds being deposited at interest in a way which would have protected the

parties and allowed the Trustee to proceed with the finalisation

of the bankrupt estate. Ultimately, the solicitors for Mrs Wakim

gave such an undertaking and I made orders joining Mr Wakim as a party to the present proceedings and directions for the subsequent disposition of the proceedings. I directed that Mrs Wakim file a separate notice of motion indicating the relief which she sought. The proceedings were then adjourned to a date to be fixed and directions given as to the further filing of affidavit evidence by Mrs Wakim. Ultimately, Mrs Wakim sought declaratory relief that the 1986 assignment was a valid assignment and that she was thus entitled to all the moneys to which otherwise her son would have been entitled from the estate of the bankrupt and an order that these be paid to her by the Trustee.

The Trustee gave an undertaking to the court that until those proceedings were disposed of he would retain the moneys owing to Mr Wakim in the bankrupt estate.

The matter finally came on for hearing on 22 April

1992. Counsel for Mr Wakim advised that it was not proposed to

rely upon the 1986 assignment but that there had in the meantime been a further assignment by Mr Wakim presumably to his mother on which he relied. There was no appearance by Mrs Wakim, who had in the meantime dispensed with the services of her solicitor, so it was said, on financial grounds. As a result of a change of dates allocated to the case, there was some doubt whether Mrs

Wakim was aware that the hearing was to take place. There was	no specific notification to her, although Mr Wakim lives with her
and was fully aware that the case was to proceed on that day. I adjourned that part of the case which concerned the claims of Mrs Wakim until the following Friday and ordered that Mrs Wakim be notified by telegram and by courier delivered document. I heard then further evidence on the question of the Mareva injunction and argument on that issue.
The claim for a lien
The case for Gadens was put on two alternative bases. First, it was said that the firm had a lien for all costs not already provided for that had been rendered in connection with the claim against Mrs Nader because the settlement of those proceedings was closely related to enabling the bankrupt estate to be finalised. This was so because it produced the offer of Mrs Nader to purchase the estate assets, thus providing a fund out of which the distribution could be made to Mr Wakim. Second, it was sald that Gadens had performed work of at least $10,000 directly related to the recovery of moneys in the estate and accordingly the firm was entitled to a lien in that amount.
The parties were in agreement that the law as to solicitor's liens was correctly set out in the unreparted judgment of Smart J, to which I have referred. His Honour, in that judgment, referred to the following passage from Corderv on
Solicitors, 8th Ed at 250-251 in the following terms:

"A sol ic i tor has a t common l a w a ' l ien ' over property recovered or preserved or the proceeds o f any judgment obtained by h i s work on his c l ient ' s behalf for the costs incurred thereby which have been authorised by h i s retainer... This common l a w l i en i s i n fact a right to ask for the equitable interference o f the court t o have the judgment held as a security for costs. This so-called ' l ien ' i s good as against the cl ient even although the property recovered or preserved' i s not i n h i s possession, e.g., i n the hands o f a defendant against whom h i s cl ient has obtained judgment;".

It seems to be the law that it is unnecessary that the matter proceed to judgment and a lien may extend to moneys received or paid as a compromise of litigation: v Buxton (1889) 42 Ch D 190, provided that the money so received is, to use the words of Smart J, "in truth and in substance the fruit of the action". However, a solicitor's particular lien does not extend to moneys recovered by the labours of the solicitor where no proceedings at all are instituted, but rather there are merely negotiations which culminate in payment: Meauerditchian v Liahtbound [l9171 2 KB 298. The principle upon which a solicitor's lien rests is not that a solicitor's costs are to be protected by the court in each case where, as a result of a solicitor's intervention, moneys are received by his client. The intervention of the courts to enforce a charge by a solicitor for costs was an intervention in the cause itself, and its existence depended on the power of the court to make the other party to the litigation pay again if he paid direct to his adversary with notice of the attorney's claim: per Rowlatt J in Meauerditchian v Liahtbound [l9171 1 KB 297, citing by way of example Ormerod v (1801) 1 East 464.

However, the case before Smart J was, if I may say so, a classic case, since the claim for the lien was a claim for costs in obtaining the settlement with Mrs Nader, the costs being the costs of acting in respect of the claim against Mrs Nader. Here, however, what Gadens asserts in its widest claim is that where a settlement brings funds into a bankrupt estate in which the client has proved, the costs of the settlement can be seen to be costs associated with the dividend obtained in the bankrupt estate, notwithstanding that there is no litigation between the client and the Trustee in the bankrupt estate, or, for that matter, no litigation extant between the Trustee of the bankrupt estate and the person with whom the compromise has been reached (here Mrs Nader).

Counsel for Gadens was unable to point to any case where a lien was enforced in circumstances which were so indirect. Nor have my researches disclosed any. It is clear law that the common law lien sought to be invoked here is a particular lien, that is to say that the lien exists only in respect of the costs of the action itself and does not extend to other costs incurred by the client not immediately incidental to the action. Thus, in the case before Smart J, his Honour expressed the view (the matter was conceded by counsel for Gadens), in my respectful opinion correctly, that the lien

extend to cover the costs of the litigation against Ebsworth &	against the proceeds of the claim against Mrs Nader did not
Ebsworth. While there is a closer relationship here, that relationship is, in my opinion, too remote to allow Gadens to claim a lien against the moneys recovered by Mr Wakim as the fruits of his claim in proof merely because a term of the settlement agalnst Mrs Nader provided that she would offer to purchase the jointly held property in the bankrupt estate, thereby permitting the Trustee to be put in funds to pay a dividend in the estate. The costs incurred were neither the costs of recovery by action of the amount receivable by Mr Wakim from the Trustee, nor could it be said that they were immediately incidental thereto.
The alternative claim does not have the difficulty of remoteness, in the sense that the work performed by Gadens for Mr Wakim directly concerned the bankrupt estate. However, it suffers from another difficulty, namely, that at no time was any litigation embarked upon of which it could be said that the amount receivable by Mr Wakim from the Trustee represented the fruits of a judgment or fund recovered as a result of the exertions of the solicitor. The advice as to the removal of the Trustee no doubt concerned litigation in prospect, but as a result of the solicitors' advice, no doubt correct, it did not proceed. The costs incurred in pressing the Trustee to take proceedings for contribution against Mrs Nader, or to bring about a sale of the jointly held land, may well have had a relevance
to litigation of which Mr Wakim was a party. to the ultimate fund recovered by Mr Wakim, but did not proceed
Some assistance may be derived from Meauerditchian, to which I have already referred, notwithstanding that the case is more directly authority for the proposition that no lien exists on the fruits of a mere negotiation without litigation. In that case, a creditor commenced proceedings but after the proceedings were commenced bankruptcy of the defendant intervened. The receiver in bankruptcy continued the proceedings instructing the same firm of solicitors. It was said that no lien existed in respect of the costs incurred prior to bankruptcy. Cases such as Re Meter Cabs [l9111 2 Ch 557 are distinguishable. In that case, a solicitor had been employed to recover moneys in an arbitration and prior to the arbitration the client company went into liquidation. The claim was subsequently compromised with the sanction of the liquidators and it was held that the solicitor was entitled to a lien for his costs of recovery, including the costs prior to liquidation.
Accordingly, I am of the view that Gadens have not established a case for a common law lien, and to that extent their present motion must fail.
The claim for a Mareva iniunction
Since June 1991, the proceedings in the Supreme Court Wakim and claiming, among other things, that Gadens' bills be relating to costs between Mr Wakim and Gadens, initiated by Mr
taxed, have been disposed of. Sully J ultimately ordered the bills be taxed, but found in favour of Gadens that there had been a fee agreement and that it had not been entered into by Mr Wakim under undue influence from Gadens. His Honour's order was upon condition that there be paid out of the Ebsworth settlement moneys, funds to repay the litigation loan and a sum of $30,000 to Gadens on account of their costs. The bills still await The bills still await taxation. His Honour, during the course of the judgment, made some comments about Mr Wakim to which I was referred, but in my view it would be inappropriate to take these into account.
Counsel for Gadens submitted that the evidence before me supported the grant of a Mareva injunction. That evidence demonstrates that Mr Wakim changes solicitors often, that he would do much to avoid paying Gaden's, and that there is animosity between the parties. That, on its own, would be insufficient to base a Mareva injunction. The basis of relief is founded upon the risk that the defendant will:

". . . s o dea l w i t h h i s a s s e t s t h a t h e w i l l s t u l t i f y and r e n d e r i n e f f e c t i v e a n y judgment g iven by t h e Court i n t h e p l a i n t i f f ' s

a c t i o n , and t h u s i m p a i r t h e j u r i s d i c t i o n o f

t h e C o u r t . . . " .

Rilev McKav Ptv Ltd v McKav [l9821 1 NSWLR 264 at 276.

There are other matters which are more relevant. Among them are the fact that M r Wakim had attempted, in 1986, to assign his interest in the bankrupt estate to his mother, and his counsel said at the bar table this morning that there had, this year, been another assignment entered into between them. No evidence of the assignment has been tendered at this stage and no assessment can be made as to whether it was effective. The point is that a findlng of fact could be supported, sufficient to found interlocutory relief in the nature of a Mareva injunction, that there was a real fear, if he has not already done so, that Mr Wakim would dissipate, to the disadvantage of Gadens right to be paid the costs once they are taxed, moneys paid to him by the Trustee.

However, I do not think that it is appropriate for me to make findings of fact on the matter, because I have formed the view that the application for an injunction should be transferred to the Supreme Court for determination.

Jurisdiction to grant a Mareva injunction is based upon

the existence of a:

"... vested and accrued cause of action for which substantive relief can be immediately granted".

The Siskina [l9791 AC 210 at 254, at 277.

This is so because, as Wilson and Dawson JJ point out in Jackson v Sterlina Industries Ltd (1987) 162 CLR 612 at 617, the use of such an injunction "must be necessary to prevent the abuse of the process of the court". It is particularly so in a court such as the Federal Court, the jurisdiction of which is statutory.

There are proceedings commenced by Gadens in the Supreme Court against Mr Wakim seeking payment of their costs; there are no such proceedings in this court. Prima facie, therefore, this court would lack jurisdiction to grant the relief. Even if the jurisdiction of the court could be put on a wider basis, it would seem to me to be inappropriate for this court to exercise the jurisdiction when it would really be in aid of the proceedings pending in the Supreme Court. Accordingly, the appropriate course seems to me to be to make an order under s.5(4) of the Jurisdiction of Courts (Cross-Vestinal Act 1987 to transfer the proceeding, whereby a Mareva injunction is sought, to the Supreme Court of New South Wales. The prerequisites for the making of such an order are all satisfied. The proceeding for a Mareva injunction, if not arising out of, certainly is related to the proceeding for a cross-claim by Gadens against M r Wakim. Further, the case is one where, assuming that this court had jurisdiction to determine the matter, it would be more appropriate that it be heard and determined by the Supreme Court. In any event, it is clearly in the interests of justice that the proceeding be determined by that court, rather than that an order

be made by this court dismissing the application and that Gadens	be required to commence proceedings afresh in the Supreme Court.
I would accordingly order that the proceeding constituted by the application for a Mareva injunction be transferred to the Supreme Court of New South Wales. I direct the Registrar to make up a file dealing with that matter, retaining copies of affidavits filed in this court within the present Bankruptcy File, and remit the file so assembled to the Supreme Court. By arrangement with that court the matter will be listed at 9.15 on Monday next before the list judge, Badgery- Parker J. I would dismiss the motion of Gadens, other than in respect of the matter referred to in clauses 5 and 6 thereof. I will deal in a separate judgment with the remainder of the matters before me arising out of the Trustee's application for directions and will hear argument as to costs.
I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of his Honour
M r Justice Hill.

h/9 Associate:

Date: 24 April 1992

Counsel and Solicitors for	D. McGovern instructed by
G. Wakim, the 1st Cross-	Crichton Brownes
Respondent and 3rd Cross -Respondent:
Counsel and Solicitors for	F. Lever instructed by
Gadens Ridgeway, the 1st	Gadens Ridgway
Cross-Applicant and 2nd Cross-Respondent:

Counsel for the Official	B.J. Skinner instructed by
Trustee, the Applicant:	Lobban McNally & Harney
Dates of Hearing:	30 and 31 October 1991 and 22 April 1992
Date Judgment Delivered:	24 April 1992