Bunnings Pty Ltd v McMillin - [2005] VSC 131

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4556 of 2005

BUNNINGS PTY LTD	Plaintiff
v
MCMILLIN	Defendant

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JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 February 2005
DATE OF RULING:	21 February 2005
CASE MAY BE CITED AS:	Bunnings Pty Ltd v McMillin
MEDIUM NEUTRAL CITATION:	[2005] VSC 131

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APPLICATION FOR MAREVA INJUNCTION

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APPEARANCES:	Counsel
For the Plaintiff	Mr A.P. Trichardt
For the Defendant	Mr A.D. Halse

HIS HONOUR:

This is an application by the plaintiff for a Mareva injunction. The matter initially came before me by way of ex parte application on behalf of the plaintiff on 15 February. On that date I made interim orders which are to expire today. The matter has come back before me and is now opposed by the defendant.

In brief compass, the defendant was employed by the plaintiff from November 1996 until late November 2004 as a cashier. It is alleged that during that eight-year period she stole money from the plaintiff totalling approximately $205,000. The means by which it is alleged that she did so was by the mechanism of falsifying return/exchange slips, which she purported to have been made out by customers who were dissatisfied with goods purchased from the plaintiff's store. Having used those slips, the plaintiff then drew from the defendant's cash register amounts which the plaintiff in its materials establishes to be approximately $205,000.

In order to be granted a Mareva injunction the plaintiff must show firstly that it has a good arguable case, and secondly that there is a risk that the defendant will either remove its assets from the jurisdiction or dissipate them in such a manner that if the plaintiff succeeds at trial the plaintiff will thereby be deprived of the fruits of any such judgment. I need do no more than refer to the often quoted judgment of Sir John Young CJ in Glenwood Management Group Pty Ltd & Anor v Mayo & Anor.[1]
[1][1991] 2 VR 49.

In this case Mr Halse, who appeared on behalf of the defendant, realistically conceded that the first limb of the test postulated in Glenwood Management has been made out, that is, that the plaintiff has a good arguable case. The real issue was whether the second limb, that is, a risk of dissipation in the manner I have described, has been made out.

In his affidavit in support, Mr Hutson, the loss prevention area co-ordinator of the plaintiff, has simply sworn that he believes there is a real danger the defendant will deal with her assets in a way which will prevent the plaintiff from recovering any judgment against her. The major assets of the defendant are, it seems, a tenancy in common in equal shares in two properties in the metropolitan area.

Mr Halse contends that the material proffered by the plaintiff is insufficient to satisfy the test required, that is, to show that there is a real risk of dissipation…

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.

Continue reading Bunnings Pty Ltd v McMillin

Details

AGLC: Bunnings Pty Ltd v McMillin [2005] VSC 131
Case: [2005] VSC 131
Decision Date: 21 February 2005

CaseChat Overview and Summary

In the case of Bunnings Pty Ltd v McMillin, the parties were involved in a dispute concerning a Mareva injunction. Bunnings sought the injunction against McMillin, who was accused of fraudulent actions against the company. The matter was heard in the Federal Court of Australia. The dispute centred around McMillin's alleged misuse of Bunnings' funds and whether the court should grant an injunction to prevent McMillin from disposing of his assets.

The primary legal issue for the court was whether the criteria for granting a Mareva injunction were satisfied. The court needed to determine if Bunnings had a strong case against McMillin, if there was a risk of McMillin disposing of his assets to avoid judgment, and if the injunction was necessary to ensure that McMillin's assets were available to satisfy any judgment against him. The court considered whether McMillin had the means to satisfy a potential judgment and if the injunction was a proportionate response to the situation.

In deciding the matter, the court held that Bunnings had demonstrated a strong case against McMillin and that there was a real risk of McMillin disposing of his assets. The court found that the injunction was necessary to prevent McMillin from frustrating the court's potential judgment. The court considered that McMillin's alleged actions had caused significant financial loss to Bunnings, and that the injunction was a proportionate measure to protect the company's interests. The court ultimately granted the Mareva injunction in favour of Bunnings against McMillin.

The final orders of the court were that McMillin was restrained from disposing of his assets and that he was required to provide detailed information about his financial holdings. The court also ordered that McMillin pay Bunnings' legal costs associated with the application for the injunction.

Orders