Brew v Crouch

[1998] SASC 6633

BREW  v  CROUCH; DIONYSUS PTY LTD (RESPONDENT)

Chamber Application

Bleby J

The plaintiff and defendant had entered into negotiations to purchase between them the Finsbury Hotel.  The purchase was to be achieved by means of a company of which the plaintiff and defendant were to be equal shareholders.  Shortly before settlement was due on the contract for purchase, the defendant refused to proceed, claiming that there was no enforceable contract between the parties.  The purchase did not proceed.  The plaintiff then sued the defendant for damages for breach of contract.  The defendant joined as third parties the plaintiff’s parents, alleging that they had guaranteed certain monies which were said to have been payable by the plaintiff, and that they had failed to do so.

At the time that these arrangements were entered into, the plaintiff, although he had been studying in Melbourne, was assisting his parents to operate a hotel at Albury in New South Wales.  The defendant was at all material times and still is a resident of Victoria.

The dispute came on for hearing before Millhouse J on the question of liability only.  On 27 April 1997 (Judgment No S6131) the learned trial judge found that the plaintiff had proved the existence of the contract and of a breach thereof by the defendant.  He entered judgment against the defendant for damages to be assessed.  He dismissed the counterclaim against the third parties.  The third parties have therefore taken no further part in the proceedings.

Since April 1997 various interlocutory steps have been taken towards a hearing on the assessment of the plaintiff’s damages.  I will need to refer briefly to some of those events in due course.  It is sufficient to say for present purposes that the parties have not been able to reach agreement, and the claim for the assessment of the plaintiff’s damages is proceeding.  Since the hearing of the application to which I am about to refer, it has been set down for hearing in August of this year.

On 1 April 1998 the plaintiff filed an application seeking a Mareva injunction against the defendant and a company, Dionysus Pty Ltd (“Dionysus”), named in the proceedings as a “respondent”.  Dionysus had never been a party to the proceedings.  There had been no prior application seeking to join Dionysus as a party, and no such order had been obtained.

In the circumstances, it does not matter, but in my opinion the mere naming of a stranger to proceedings as a “respondent” and seeking an order in the nature of a Mareva injunction against it, is irregular, and would be insufficient in itself to result in any order binding on such a party.  As it happened, Mr Stratford, counsel for the defendant, was also retained on a somewhat limited basis to appear for Dionysus.

Where, as here, it was alleged in affidavits filed in support of the application for the injunction that there existed between Dionysus and the plaintiff a question or issue arising out of or relating to or connected with any relief or remedy sought in the proceedings against the defendant, which in the opinion of the court it would be just and convenient to determine as between Dionysus and the plaintiff as well as between the plaintiff and the defendant, application should have been made under r27.05 of the Supreme Court Rules 1987 for the joinder of Dionysus as a party, such application being brought in accordance with the procedure contemplated by r27.06. That need not necessarily result in any undue delay in the case of an urgent application such as this.

As it happened, on 2 April 1998 I refused the plaintiff’s application against both the defendant and Dionysus on other grounds.  I was unable to publish reasons at the time, and these are my reasons for refusing the application.

The application sought:

1. An injunction restraining the defendant and Dionysus from removing from the jurisdiction, disposing of, securing in any way or otherwise dealing with in any manner the assets of the Tattersalls Hotel of 17 Hindley Street, Adelaide or, in the alternative, restraining the defendant and Dionysus from removing from the jurisdiction, disposing of, securing in any way or otherwise dealing with in any manner the proceeds of sale of the Tattersalls Hotel.

1. That Dionysus be restrained from removing from the jurisdiction, disposing of, securing in any way or otherwise dealing with in any manner the proceeds of sale of the Tattersalls Hotel.

1. That the defendant be restrained from removing from the jurisdiction, disposing of, securing in any way or otherwise dealing with in any manner the defendant’s shareholding in Dionysus or any distributions made by that company from the proceeds of sale of the Tattersalls Hotel.

The defendant is the director and holder of 99 of the 100 issued shares in Dionysus.  Dionysus owns the leasehold of the Tattersalls Hotel.  Another company, Keith Crouch Holdings Pty Ltd and the South Australian Brewing Company Limited together own the freehold on which the hotel is situated.  The defendant is a director and holder of 99 of the 100 issued shares in Keith Crouch Holdings Pty Ltd.  I was told, and it was not disputed, that the defendant’s interest through those companies in the Tattersalls Hotel was acquired after the negotiations to acquire the Finsbury Hotel had collapsed.  There was evidence to suggest that the leasehold of the Tattersalls Hotel had recently been sold by Dionysus and that settlement thereon was imminent.  There was nothing to suggest that the sale was other than an arm’s length transaction for valuable consideration in the ordinary course of business.  The sole concern expressed by the plaintiff was that the defendant being a resident of Victoria, the net proceeds of sale would be removed from the jurisdiction, probably to Victoria.  There was no suggestion that the proceeds of sale would be removed offshore.

The plaintiff pointed to a number of factors which were said to justify his apprehension that assets would be removed from the jurisdiction.  He pointed to adverse findings as to the credibility of the defendant by the learned trial judge, and submitted that the learned trial judge’s findings on liability demonstrated an ability and willingness on the part of the defendant not to keep a bargain into which he had entered; that he was unreliable and dishonest.  He pointed to a number of actions during the interlocutory proceedings after the liability trial from which he sought to infer an attempt by the defendant to delay the hearing of the plaintiff’s assessment of damages.  It was said that the impending sale of the hotel, coupled with some alleged tardiness in applying to amend his defence and his seeking of further and better discovery from the plaintiff all pointed to a reasonable suspicion of disposal of assets for the purpose of avoiding the final judgment that the plaintiff would inevitably obtain.  I would not be prepared to infer such a suspicion from those events alone.  The defendant did not receive the plaintiff’s formulated claim for damages until 7 November 1997, having received the plaintiff’s experts’ reports on or about 3 October.  The latter prompted further contested applications for discovery and an amendment to the plaintiff’s statement of claim.  The defendant’s expert report was received by his solicitors on 4 March 1998.  It was considered by counsel, resulting in the application to amend the defence.  Those events in themselves have no sinister connotations, and I would not be prepared to draw any such inference without full knowledge of the nature and content of the various experts’ reports and advice from counsel. 

More importantly, however, the plaintiff relied on the fact that the plaintiff’s damages claim had been formulated, that experts’ reports had been exchanged, and on the proximity of the hearing on damages.  Given the earlier determination on liability, that was sufficient to infer that one of the purposes of the sale was to remove assets from the jurisdiction.

As to the principles which should guide the granting or refusal of the Mareva injunction, I take as my starting point what the New South Wales Court of Appeal (Street CJ, Hope JA and Rogers AJA) said in Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 at 276:

“The basis of jurisdiction is founded on the risk that the defendant will so deal with his assets that he will stultify and render ineffective any judgment given by the Court in the plaintiff’s action, and thus impair the jurisdiction of the Court and render it impotent properly and effectively to administer justice in New South Wales.  As has appeared, the jurisdiction to grant the injunction is not to be exercised simply to preclude a debtor from dealing with his assets, and in particular to prevent him from using them to pay his debts in the ordinary course of business.  It is directed to dispositions which do not fall within this category and which are intended to frustrate, or have the necessary effect of frustrating, the plaintiff in his attempt to seek through the court a remedy for the obligation to which he claims the defendant is subject...

A number of matters must be established in order to entitle the plaintiff to obtain a ‘Mareva’ injunction.  As with other interlocutory injunctions, the court will be concerned to evaluate whether the plaintiff has made out a sufficiently strong case to justify the grant of the interlocutory remedy; the court will be concerned to evaluate the balance of convenience; and the court will ultimately be concerned with general discretionary considerations.  These three aspects are inter‑related and overlap to a greater or lesser extent - particularly the first and the second.”

It is not always necessary to show risk of removal of assets from the jurisdiction.  Some form of transfer to other entities not parties to the action may be sufficient, provided that it can be inferred that there is a risk that such action is taken in order to stultify, or is likely to have the effect of stultifying, the plaintiff’s attempts to satisfy any judgment he may obtain.  Subject to any considerations of the balance of convenience, the plaintiff may then be entitled to an appropriate injunction.  This reflects what was said by Sir Robert Megarry VC in Barclay‑Johnson v Yuill [1980] 3 All ER 190 at 194:

“If the assets are likely to remain in the jurisdiction, then the plaintiff, like all others with claims against the defendant, must run the risk, common to all, that the defendant may dissipate his assets, or consume them in discharging other liabilities, and so leave nothing with which to satisfy any judgment.  On the other hand, if there is a real risk of the assets being removed from the jurisdiction, a Mareva injunction will prevent their removal.  It is not enough for such an injunction merely to forbid the defendant to remove them from the jurisdiction, for otherwise he might transfer them to some collaborator who would then remove them; accordingly, the injunction will restrain the defendant from disposing of them even within the jurisdiction.  But that does not mean that the assets will remain sterilised for the benefit of the plaintiff, for the court will permit the defendant to use them for paying debts as they fall due: see Iraqi Ministry of Defence v Arcepey Shipping Co SA [1980] 1 All ER 480 at 486, [1980] 1 WLR 488 at 494 per Robert Goff J.”

That disposal other than by removal from the jurisdiction may be prevented is now recognised in r68.03(1) of the Supreme Court Rules 1987, which contemplates an application for an injunction restraining a defendant “from removing the defendant’s assets from the jurisdiction or disposing of the same”.  One of the matters which a plaintiff must establish (subr(c)) is that there is a danger that the defendant’s assets “may be removed from the jurisdiction or disposed of”. (My emphasis)

In Jackson v Sterling Industries Ltd (1987) 162 CLR 612, Deane J, with whom Mason CJ, Wilson, Brennan and Dawson JJ agreed said at p623:

“As a general proposition, it should now be accepted in this country that ‘a Mareva injunction can be granted... if the circumstances are such that there is a danger of [the defendant’s] absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that the plaintiff, if he gets judgment, will not be able to get it satisfied’: per Lord Denning MR, Rahman (Prince Abdul) v. Abu‑Taha [1980] 1 WLR 1268, at p1273; [1980] 3 All ER 409, at p412 quoted with approval by Street CJ in Ballabil Holdings Pty Ltd v Hospital Products Ltd.”

There are limits to the remedy, however.  In Jackson v Sterling Industries Ltd (supra) the High Court was not prepared to extend the power to grant an injunction in order to require a defendant to provide security for the satisfaction of any judgment which might be entered against him.  Likewise, the right of innocent third parties will be protected: Galaxia Maritime SA v Mineralimportexport (the “Eleftherios”) [1982] 1 WLR 539. In that case Kerr LJ said at 542:

“A plaintiff seeking to secure an alleged debt or damages due from the defendant, by an order preventing the disposal of assets of the defendant, cannot possibly be entitled to obtain the advantage of such an order for himself at the expense of the business rights of an innocent third party, merely by proffering him an indemnity in whatever form.

In this connection, it is crucial to bear in mind not only the balance of convenience and justice as between plaintiffs and defendants, but above all also as between plaintiffs and third parties.  Where assets of a defendant are held by a third party incidentally to the general business of the third party - such as the accounts of the defendant held by a bank, or goods held by a bailee as custodian, for example in a warehouse - an effective indemnity in favour of the third party will adequately hold this balance, because service of the injunction will not lead to any major interference with the third party’s business.  But where the effect of service must lead to interference with the performance of a contract between the third party and the defendant which relates specifically to the assets in question, the right of the third party in relation to his contract must clearly prevail over the plaintiff’s desire to secure the defendant’s assets for himself against the day of judgment.”

Similar concern about the interference with the rights of innocent third parties was expressed by Robert Goff J in Searose Ltd v Seatrain UK Ltd [1981] 1 WLR 894 at 897.

Given that the sale of the Tattersalls Hotel appears to be to an innocent third party by way of an arm’s length transaction in the ordinary course of business, even if the plaintiff were prepared to offer an indemnity to that party for any losses which might be sustained, it would be quite inappropriate for this Court to interfere to the extent of preventing settlement on the sale from going ahead.  That would unduly interfere with the rights of a third party who has not even been heard on this application.  But even without hearing that party, there is nothing to suggest that the transaction is other than in the ordinary course of business.  Therefore that part of the application which seeks to prevent Dionysus from disposing of or dealing with the assets of the hotel must be rejected on that ground alone.

The questions remain as to the proceeds of sale of the hotel and the shares in Dionysus held by the defendant.  The first requires consideration as to whether and in what circumstances an order will be made against a party against whom the plaintiff has no cause of action, and who is only joined for the purpose of the Mareva injunction.  Mr Ross‑Smith, for the plaintiff, relied on a number of cases where that had occurred in order to justify an appropriate injunction being granted against Dionysus.

In Vereker v Choi (1985) 4 NSWLR 277 the fourth defendant, a company named Dominican, incorporated in Hong Kong, was sued for the return of monies deposited by an investor. The first and third defendants were directors of Dominican and they were sued on an alleged guarantee. The second defendant was the wife of the first defendant. The plaintiff claimed no cause of action against her. It was sought to extend a Mareva injunction to certain funds brought into Australia by the second defendant when she and her husband immigrated to Australia. She had deposited the money with various financial institutions in Australia, mainly in her name, but with one account in the name of her mother. An appropriate summary of the facts was provided by Clarke J at 281 as follows:

“In summary a Hong Kong businessman, with the indicia of, and claiming, considerable wealth, hurriedly departs Hong Kong upon the collapse of the company of which he was managing director.  He remains out of the clutches of the authorities, who are investigating the misappropriation of large sums of money from the company, until he immigrates to Australia.  His entry into this country is facilitated by his wife who arrives on the same day as he does.  She worked previously in Hong Kong as a teacher earning what I would infer is a reasonable salary.  On arrival he has only A$300, she has A$500,000.

They both resist the making of a Mareva injunction, but on different grounds.  He has no money and the making of an order would be futile.  She is not charged with any indebtedness to Vereker and the court has no power to enjoin a person against whom no cause of action is asserted.”

The Court accepted that there was a risk that the first defendant might endeavour to defeat the plaintiff’s claim by, if necessary, so organising his affairs as to stultify any judgment against him.  Clarke J considered that if the second defendant had established ownership for a lengthy period of time of the assets (valued in excess of $500,000) then her case may well have been invulnerable.  However, the evidence showed that she had acquired a large portion of the money within the previous six months.  The largest single contribution was from sale of a property jointly owned with her husband, the first defendant, and possibly funded by the first defendant, and much of the remainder of the money represented gifts from the second defendant’s sisters and family friends within the same period.  No evidence was led as to the source of funds from the sisters or family friends.  The Court extended the Mareva injunction to the assets in the name of the second defendant, saying (at p284):

“(Q)uestions are raised as to the original source of the moneys ‘given’ to Mrs Choi.  On the other hand I find it hard to categorise them as Mrs Choi’s independent moneys.  They were raised to facilitate the entry of the family into Australia, to fund the acquisition of family assets here and to help in the start of a business to be operated by Mr and Mrs Choi.  He is the experienced businessman and it is not hard to infer that he would be the leading light in the business set up with ‘her’ money.

These circumstances, and one other, persuade me that, in commercial reality, the money is family money and that he probably has at least as great an interest in it as she has.  The other matter is the deposit of A$150,000 in her mother’s name.  At best her mother donated less than A$3,000 and now she appears to the world as a person with substantial funds.  That money does not, and is not claimed to, belong to Mrs Choi’s mother and the circumstance that it is in her name supports the conclusion that all the moneys are simply treated as family moneys.

My final observation on this aspect is that there will, in my opinion, be a real question at the end of the day whether the plaintiff, if he obtains a verdict, should not be able to lay his hands on those moneys.

All these factors persuade me that this case is an exception to the general rule.”

It seems that the basis of that decision was that in commercial reality the assets were “family” assets in which the defendant arguably had an interest.

In Tomlinson v Cut Price Deli Pty Ltd (Unreported, Federal Court of Australia, Kiefel J, 23 June 1995) a Mareva injunction was granted against the respondent. During the currency of the proceedings the respondent’s assets had been assigned to a related company. A Mareva injunction was granted against that company, Kiefel J saying:

“Orders against third parties in aid of an injunction, where the third party has become mixed up in the transaction have been made: see eg Mercantile Group (Europe) AG v Aiyela [1994] 1 All ER 110, and would, I consider, be made where the third party has actively participated in the deliberate removal of assets, as here alleged. In effect the further injunction is simply recognising that a party such as (the respondent) and those associated with it effectively controls (the third party) (or the same people in any event control both entities) and makes clear that they are not to act through (the third party) to further deal with or encumber the assets.”

That decision was affirmed by a decision of the Full Court of the Federal Court in LED Builders Pty Ltd v Eagle Homes Pty Ltd (1997) 148 ALR 247. The Court had previously found that the respondent had infringed a copyright of the appellant, and the appellant had elected for an account of profits against the respondent. A Mareva injunction was sought and granted against the two individual shareholders of the respondent, who had been paid substantial dividends after the judgment, and against another company controlled by the same individuals, and to whom they were arranging for the transfer of the respondent’s business. It was feared that the two controllers of the companies would take steps to deprive the appellant of access to assets which would satisfy the judgment. The Court held that it was not necessary for the debtor to have a specific proprietary interest in the assets held by the third party. In their joint judgment, Beaumont and Branson JJ said, at p258:

“Having regard to his Honour’s finding as to the earlier involvement of Mr and Mrs Cardile in the disposition of assets by Eagle, we do not consider that it was open to his Honour to conclude, if he did so conclude, that there is no risk that assets will be disposed of by Ultra, at the direction of Mr and Mrs Cardile, with a view to abusing or frustrating the court’s process.  In those circumstances, the court should intervene to prevent any such abuse or frustration.  To that end, Ultra should be temporarily restrained from disposing of its assets, subject to the usual exceptions so that, for example, it may make a disposition in the ordinary course of its ordinary business.  Mr and Mrs Cardile should be similarly enjoined.  LED will, of course, be required to give the usual undertaking as to damages.

We must add that, with all respect, we cannot accept, as the primary judge appears to suggest, that it is an ingredient of the Mareva jurisdiction that the debtor has a specific proprietary interest in the third party’s assets: see eg, Mercedes Benz AG v Leiduck [1996] 1 AC 284 at 300 where Lord Mustill emphasises that Mareva relief takes effect in personam only and distinguishes tracing and other such remedies protecting proprietary rights. It is sufficient, for present purposes, that the assets of the defendant and the third parties are ‘mixed up’ and ‘controlled’, in the sense explained by Kiefel J in Tomlinson v Cut Price Deli Pty Ltd.”

Finally, in Australian Competition Consumer Commission v Top Snack Foods Pty Ltd (Unreported, Federal Court of Australia, Tamberlin J, 7 November 1997) the applicant sought leave to join three additional companies as respondents to the proceedings. Two of the companies were alleged to carry on business in partnership and were joined to the action under the Trade Practices Act as respondents.  One of those companies was the trustee of a family trust known as “the KN Trust”.  A director of that company was also a personal defendant in the action.  The applicant sought to join another company, Gatsios Holdings Pty Ltd, which had recently been appointed trustee of the KN Trust.  The assets of that trust were in the course of being transferred to the new trustee.  The applicant had no cause of action against Gatsios Holdings Pty Ltd.  A Mareva injunction was nevertheless granted against both the original trustee and the new trustee of the family trust upon the basis that there was a danger that the assets of the trust which might otherwise have been available to satisfy any judgment in favour of the applicant would be removed to the control of Gatsios Holdings Pty Ltd and might be diminished or dissipated.  Tamberlin J considered that there was power to grant relief against a non‑party in order to prevent that party from dissipating assets which would frustrate the process of the court by depriving the applicant of the fruits of any judgment obtained in the action.

It is therefore clear that it is not necessary to establish that the defendant to the action has any actual or possible proprietary interest in the assets the subject of the application.  There is, nevertheless, a common thread running through the cases.  Leaving aside any obvious proprietary interest of the defendant in the assets, in each case there was a transfer to a person or body over whom the immediate defendant had no apparent control, but who or which was related in some way to the defendant.  In other words, there was ultimately some common control or beneficial ownership, and the transaction could be seen as a device to transfer beneficial ownership or rights to indemnity away from the defendant in the proceedings.  In that way, if the defendant were made bankrupt or placed in liquidation by the plaintiff, the assets would not be available to the judgment creditor.  In Vereker v Choi (supra) the third party was a person to whom monies had been paid apparently on behalf of or for the benefit of one of the defendants; in LED Builders (supra) the third parties were persons or bodies to whom assets had been or were in the course of being transferred, and were entities over which the defendant had no control.  However, the transfer was instigated by persons who ultimately controlled both entities and who were themselves beneficiaries of some of the transactions.  In the Tomlinson and ACCC cases (supra) assets were transferred to another corporate entity, again at the instance of a person who controlled both, in order to effect a change in the legal ownership and to prevent recourse by the defendant (and hence the plaintiff) to the assets.  In the three cases involving corporate entities, in no case did the defendant transfer assets to a transferee over which it had effective control, such that the winding‑up of the transferor would necessarily give access to the assets of, or shares representing the assets of, the transferee.

In this case there is no suggestion that any of the assets of the defendant have been transferred to Dionysus in a similar manner in order to frustrate the plaintiff’s ability to recover a judgment against the defendant.  Similarly, there is no suggestion that Dionysus holds any such assets on trust for the defendant.  The arrangement seems to be a perfectly normal structure which one would expect to find in place for the ownership of a hotel licence.  It is not clear when the companies controlled by the defendant acquired their respective interests in the Tattersalls Hotel, but there has been no suggestion that it was done in order to frustrate the plaintiff’s remedy against the defendant.  Indeed, the corporate entities set up for this purpose remain wholly owned by the defendant.

The intended transfer of assets (as far as one can tell, the physical assets and goodwill of and the licence to operate the hotel) from Dionysus to another has all the hallmarks of an ordinary commercial transaction in the ordinary course of business, with nothing to suggest that it is being arranged by the defendant in order to frustrate the judgment.  There will be a transfer of assets away from interests controlled by the defendant, but that transfer is to a complete stranger and apparently for valuable consideration.

Just as there is nothing sinister about the ownership by Dionysus of the assets of the hotel, so this Court cannot, on present information, be concerned with the proceeds of sale of those assets.  There is nothing to suggest that they will not be held or dealt with by Dionysus in the ordinary course of its business.  There is certainly nothing to suggest a diminution in the value of the defendant’s shares in Dionysus.  There is therefore no justification, in my opinion, for any order being made against Dionysus under present circumstances.  It might well be different if there were evidence that Dionysus were disposing of its assets in such a way as significantly to reduce the value of the defendant’s shareholding in that company and away from the ultimate beneficial ownership of the defendant.  But there is no suggestion of any such activity.

What then of the defendant’s shareholding in Dionysus?  There is nothing to suggest that the defendant intends to transfer his shareholding to anyone else, or to deprive himself or the plaintiff of access to those shares to satisfy any judgment.  The plaintiff did not suggest that.  The plaintiff’s case was based on apprehended removal of the shares and proceeds of sale to a place outside the jurisdiction of this court.

There was no evidence as to the present “location” of the shares or that their “location” was about to change.  That in itself would be sufficient reason to refuse the injunction against the defendant in respect of the shares.  However, I am prepared to assume for present purposes that the shares are “located” within the jurisdiction.  I am also prepared to assume, for present purposes, that an inference can reasonably be drawn that, by virtue of his residence, there is a strong possibility that the defendant will transfer such assets to Victoria or some other State.  It is perhaps not unreasonable to assume also that the proceeds of sale of the hotel business might also be transferred out of the jurisdiction to another State.

I am not aware of any case in which a Mareva injunction has been granted merely to prevent the assets of or under the control of the defendant from being transferred from one State or Territory to another within Australia.  It is not difficult to realise why that might be.  The enforcement of a judgment of one Court in the Court of another State or Territory is a relatively simple process under s105 of the Service and Execution of Process Act 1992.  Enforcement proceedings can be commenced in one court on the same day that judgment is entered in another.  That is far different from trying to enforce a judgment in a foreign country.  There may possibly be circumstances where an injunction is warranted to prevent such transfer, but I think they will be very rare cases.  Indeed, it seems to me that the ability to enforce a judgment of this Court relating to the payment of a sum of money is a much simpler process under the Service and Execution of Process Act than the enforcement of an injunction in the nature of that now being sought against a personal defendant who is not resident in the State.  On that basis the balance of convenience is very much against the granting of the injunction.

Likewise, and for similar reasons, this Court cannot be concerned, in most cases, if a company controlled by a defendant, whether the defendant is a resident of this State or not, proceeds to transfer its assets to another State or Territory. The assets available for enforcement of the judgment will be the defendant’s shares in the company concerned. Access to the shares for the purposes of enforcement of the judgment does not change. If the shares are available for execution they may either be sold in order to reflect the underlying net asset value of the company, wherever those assets are, or alternatively the receiver or trustee in bankruptcy of the defendant’s assets will be able to exercise whatever control over the company the defendant previously had. That may include realisation of the company’s assets wherever they may be or possible winding‑up of the company. With the whole of Australia now being subject to the one Corporations Law, that is not a particularly difficult process.

It follows that in my opinion there is no justification for the grant of a Mareva injunction in any of the terms sought by the plaintiff or at all.  If it can be shown that there is some prospect of the defendant or companies which he controls removing assets outside Australia or disposing of them in a manner which can be seen to frustrate the recovery by the plaintiff of any amount adjudged by this Court to be due to him by the defendant, then it will be open for the plaintiff to make a further application if so advised.