Clout (Trustee) v Anscor Pty Ltd

[2001] FCA 560

FEDERAL COURT OF AUSTRALIA

Clout (Trustee) v Anscor Pty Ltd [2001] FCA 560

DAVID LEWIS CLOUT (AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF GEOFFREY  ROBERT DEXTER) v ANSCOR PTY LTD, MACKAY & ALLEN PTY LTD, HINATORIE PTY LTD (PROVISIONAL LIQUIDATOR APPOINTED), THE FUND ADMINISTRATORS PTY LTD, REINSAG NOMINEES PTY LTD, SPECTRUM FUND ADMINISTRATION PTY LTD, AUSTRALIAN SECURED MORTGAGES PTY LTD, PROJECT FINANCE (QLD) PTY LTD, ANNE SHIRLEY CORBETT, CROFTBY DOWNS PTY LTD, THORNVILLE PTY LTD IN ITS OWN CAPACITY AND IN ITS CAPACITY AS TRUSTEE OF THE ANSCOR EXECUTIVE INCENTIVE TRUST AND THE THORNVILLE EXECUTIVE INCENTIVE TRUST, ANSCOR INVESTMENTS PTY LTD AND PACIFIC INTERNATIONAL ASSET MANAGEMENT LIMITED

QG 7308 OF 1998

DRUMMOND J
4 MAY 2001
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7308 OF 1998

BETWEEN:

DAVID LEWIS CLOUT (AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF GEOFFREY ROBERT DEXTER)
APPLICANT

AND:

ANSCOR PTY LTD
FIRST RESPONDENT

MACKAY & ALLEN PTY LTD
SECOND RESPONDENT

HINATORIE PTY LTD (PROVISIONAL LIQUIDATOR APPOINTED)
THIRD RESPONDENT

THE FUND ADMINISTRATORS PTY LTD
FOURTH RESPONDENT

REINSAG NOMINEES PTY LTD
FIFTH RESPONDENT

SPECTRUM FUND ADMINISTRATION PTY LTD
SIXTH RESPONDENT

AUSTRALIAN SECURED MORTGAGES PTY LTD
SEVENTH RESPONDENT

PROJECT FINANCE (QLD) PTY LTD
EIGHTH RESPONDENT

ANNE SHIRLEY CORBETT
NINTH RESPONDENT

CROFTBY DOWNS PTY LTD
TENTH RESPONDENT

THORNVILLE PTY LTD IN ITS OWN CAPACITY AND IN ITS CAPACITY AS TRUSTEE OF THE ANSCOR EXECUTIVE INCENTIVE TRUST AND THE THORNVILLE EXECUTIVE INCENTIVE TRUST
ELEVENTH RESPONDENT

ANSCOR INVESTMENTS PTY LTD
TWELFTH RESPONDENT

PACIFIC INTERNATIONAL ASSET MANAGEMENT LIMITED
THIRTEENTH RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	4 MAY 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The respondents’ notice of motion of 3 May 2001 be dismissed.

2.The costs of today be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7308 OF 1998

BETWEEN:

DAVID LEWIS CLOUT (AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF GEOFFREY ROBERT DEXTER)
APPLICANT

AND:

ANSCOR PTY LTD
FIRST RESPONDENT

MACKAY & ALLEN PTY LTD
SECOND RESPONDENT

HINATORIE PTY LTD
(PROVISIONAL LIQUIDATOR APPOINTED)
THIRD RESPONDENT

THE FUND ADMINISTRATORS PTY LTD
FOURTH RESPONDENT

REINSAG NOMINEES PTY LTD
FIFTH RESPONDENT

SPECTRUM FUND ADMINISTRATION PTY LTD
SIXTH RESPONDENT

AUSTRALIAN SECURED MORTGAGES PTY LTD
SEVENTH RESPONDENT

PROJECT FINANCE (QLD) PTY LTD
EIGHTH RESPONDENT

ANNE SHIRLEY CORBETT
NINTH RESPONDENT

CROFTBY DOWNS PTY LTD
TENTH RESPONDENT

THORNVILLE PTY LTD IN ITS OWN CAPACITY AND IN ITS CAPACITY AS TRUSTEE OF THE ANSCOR EXECUTIVE INCENTIVE TRUST AND THE THORNVILLE EXECUTIVE INCENTIVE TRUST
ELEVENTH RESPONDENT

ANSCOR INVESTMENTS PTY LTD
TWELFTH RESPONDENT

PACIFIC INTERNATIONAL ASSET MANAGEMENT LIMITED
THIRTEENTH RESPONDENT

JUDGE:	DRUMMOND J
DATE:	4 MAY 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This afternoon I gave the solicitors who have until now been on the record for the first and the ninth to twelfth respondents leave to withdraw and I then gave Mr Corbett, the husband of the ninth respondent, leave to appear today only to represent those respondents on an application orally made by him, but supported by his affidavit and some documentary exhibits to vary the Mareva injunction which I initially imposed in May of last year and extended in February of this year in respect of specific assets of certain of these respondents.

2. Mr Corbett submitted that on the material now before me I should be satisfied that these respondents lack the means to further fund their defence to this action unless they are given access to the frozen assets.  Very limited material has been put before me against the background of two earlier judgments in which I emphasised the issue confronting the respondents, so far as the application of the Mareva injunction is concerned, of having to satisfy the Court that they did in truth lack assets other than the frozen assets, and it was only to the frozen assets that they could look to fund their continued defence, as well as their other expenses.

3. The judgment which I gave on 26 February 2001 dealt with two issues:  namely, an application by the trustee to extend the Mareva injunction to certain of Mrs Corbett’s properties and an application by the first and the ninth to twelfth respondents to relax the Mareva injunction to enable them to have access to the frozen assets to meet their legal and other expenses.  I then dealt at some length with this issue of the onus resting on the respondents.  I will incorporate in these reasons what I said in pars [10], [11], [12], [20], [21], [22], [23], [25] and [26] of my reasons of February last.

4. There could, I would think, have been no doubt in the minds of anyone, and in particular any legally qualified person who read the reasons, about the importance I placed upon the respondents having the burden of showing, if they were to obtain access to the frozen assets, that that was in truth the totality of their available resources.  Notwithstanding this, the affidavit that Mr Corbett has sworn, so far as it deals with that issue, is brief indeed.  On this issue, it is confined to what he says in par 4:

   “The said respondent companies do not have the financial capacity to pay for legal representation, unless those respondent companies can gain access to the assets of those respondent companies and my wife which are currently subject to mareva orders.”

5. In the reasons I gave in February last, in par [25] as well as elsewhere, I emphasised that the question of importance as to whether the Mareva injunction should be relaxed was not so much whether the disbursements of the $26 million in commission moneys received initially by Anscor are all recorded in its accounts, but rather whether any of the first, tenth, eleventh and twelfth respondents, as well as the ninth respondent now has access to any of this money or other assets, apart from the frozen assets.

6. Mr Corbett has produced some documentary exhibits which are copies or extracts from the accounts of various of the respondent companies and summaries of what is revealed by those accounts.  They do now, however, answer the issue I identified as of such importance in my reasons of February last.  It is not a question of showing that the movements of the commission moneys through the first respondent’s hands and onwards are all recorded in its records, but the different question of satisfying the Court as to the non-availability now of any assets of these respondents other than the frozen assets.  I am again not satisfied that the respondents have discharged the onus of showing that.

7. The material before me is, in a number of respects, uncontroversial as showing that very large amounts were disbursed from the commission moneys, including the sum of approximately $4.4 million to Mr Corbett.  He says, in very broad, generalised evidence, that he has nothing now to show for the receipts by him totalling that $4.4 million which are identified in the books of the relevant respondent as having been paid to him by way of loan.  I am not prepared to accept that the respondent in question has discharged the onus of showing that nothing at all is recoverable from Mr Corbett in respect of that very large sum in total that he has received.

8. There are other difficulties with the case presented on behalf of the respondents today.  It is sufficient to say that on February last I commented on an affidavit filed at that time by Mr Corbett in seeking to explain what had become of the sum of $1.155 million that had been disbursed by Anscor to Pacific International Asset Management Limited, the thirteenth respondent.  In the reasons I then gave, I pointed out that what Mr Corbett then said was not consistent with certain of the documentary material then before me:  I added, in par [33], that Mr Corbett’s evidence, particularly in the way he dealt with the application of the Singapore moneys, did not lift the cloud of obscurity over the accuracy of his general assertion and that of his wife and the other respondents to the present interlocutory proceedings that they were, apart from the frozen assets, bare of assets.

9. That position, far from being clarified, has now been further complicated, it seems to me.  For example, Mr Corbett, in that affidavit of February last, said that, of the $1.155 million disbursed to Pacific International:

   “approximately $600,000 has been spent during that period on the various overheads, costs and expenses of Anscor, including the payment of significant legal costs associated with the various court actions that Anscor, my wife and I are involved in.”

10. The trustee has put before me evidence from the books of various of the respondents which is quite inconsistent with what Mr Corbett has to say about that $600,000.  The material put before me by the trustee shows that, of the $1.155 million disbursed by the first respondent to Pacific International which found its way into the latter company’s Singapore account, one sum of $450,000 was transferred by way of loan to Baincorp Pty Ltd - see p 3 of Pacific International’s general ledger exhibited to the trustee’s affidavit - and a further separate sum of $460,137 was disbursed by way of loan by Pacific International to Global Managed Investments Pty Ltd, a company with which Mr Corbett is associated.

11. I refuse the request to vary the Mareva restraint.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:  Dated:             9 May 2001

Counsel for the Applicant:	Mr McMurdo QC and Mr Quayle
Solicitor for the Applicant:	Mallesons Stephen Jaques
Counsel for the First and Ninth to Twelfth Respondents:	Mr Corbett
Date of Hearing:	4 May 2001
Date of Judgment:	4 May 2001