CALDER & CALDER

In *Calder & Calder*, the Family Court of Australia considered an urgent application by the wife for ex parte Mareva orders. The wife sought to preserve assets located in Scotland, which she alleged were under the control of the respondent husband and proposed third parties. The husband's solicitors were aware of the proceedings, but the proposed third parties, who were not yet joined to the substantive proceedings, had not been served with the application. The application was made on an urgent, ex parte basis, with the wife offering an undertaking as to damages.

The primary legal issues before the Court were whether to grant ex parte injunctive relief against the husband and proposed third parties, and whether to permit the joinder of these third parties, who were not resident or incorporated in Australia. The Court was required to determine if the wife had met the stringent requirements for obtaining such orders without notice, including the obligation of full and frank disclosure, and to consider the implications of seeking orders against parties not yet formally joined to the proceedings.

The Court reasoned that applications made without notice require the applicant to satisfy the Court as to why the order should be made without notice to the other party, and to make full and frank disclosure of all relevant facts. The wife's application was supported by affidavits detailing the husband's alleged conduct, including a change to his Will and his removal as a director of a company, as well as evidence concerning the significant value of Scottish assets and a Scottish solicitor's opinion on the oral renunciation of trust entitlements. The Court noted the husband's failure to disclose the compulsory acquisition of his shares in Calder Limited for approximately two weeks after receiving notice.

The Court granted leave for the wife to make an oral application for the orders sought, adjourned the further hearing of that application, and ordered that a transcript of the ex parte hearing be prepared and made available to all parties and proposed respondents. The wife's costs of the ex parte hearing were reserved. The Court also granted leave for the wife's solicitors to file and serve certain affidavits.