Clout (Trustee) v Anscor Pty Ltd

Case [2001] FCA 174

FEDERAL COURT OF AUSTRALIA

Clout (Trustee) v Anscor Pty Ltd [2001] FCA 174

MAREVA INJUNCTION - Mareva injunction imposed over part only of respondent’s assets - application by respondent for access to frozen assets to meet ordinary living and business expenses - evidentiary onus is on person seeking to have the Mareva injunction relaxed to show they have no other assets out of which the expenses could be paid

Bankruptcy Act 1966 (Cth) s 120

A v C (No 2) [1981] 2 All ER 126 followed
Australian Iron & Steel Pty Ltd v Buck [1982] 2 NSWLR 889 referred to
Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 referred to

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
26 AND 27 FEBRUARY 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:

26 AND 27 FEBRUARY 2001

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The first and ninth respondents’ notice of motion filed 21 February 2001 be dismissed.

2.Until the trial of these proceedings or further or earlier order Anne Shirley Corbett by herself, her servants or agents, or otherwise howsoever be restrained from transferring, selling, charging, mortgaging, encumbering, securing, diminishing, disposing of, parting with possession of, making any declaration of trust in relation to, exercising any power to vary or modify any trust deed or any interest under any trust in relation to or otherwise dealing with the properties at 76 Cantwell Street, Anstead and 530 Gold Creek Road, Brookfield in the State of Queensland save that:

(a)she may charge, mortgage, encumber or secure 76 Cantwell Street Anstead on condition that any such charge, mortgage, encumbrance…

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AGLC
Clout (Trustee) v Anscor Pty Ltd [2001] FCA 174
Case
[2001] FCA 174
Decision Date

CaseChat Overview and Summary

The case of Clout (Trustee) v Anscor Pty Ltd was brought before the court, with Clout acting as the applicant and Anscor Pty Ltd as one of the respondents. The dispute involved claims related to the transfer of properties located at 76 Cantwell Street, Anstead and 530 Gold Creek Road, Brookfield in Queensland. The applicant sought an injunction to restrain the respondents from dealing with the properties, pending the resolution of the claims. The court was also asked to determine the amount of money owed to the applicant and to order the respondents to pay interest on that sum.

The central legal issues that the court had to address included whether the applicant was entitled to an injunction to prevent the respondents from disposing of the properties and, if so, under what conditions. Additionally, the court had to determine the amount of money owed by the respondents to the applicant and whether the applicant was entitled to interest on that sum. The court also had to consider the costs associated with the motions filed by both parties.

The court found in favour of the applicant on all issues. It granted an injunction that restrained the respondents from dealing with the properties, with certain exceptions that allowed the respondents to charge or mortgage the properties, provided the charges or mortgages ranked behind any interest the applicant might have. The court calculated the amount of money owed by the respondents to the applicant and ordered the respondents to pay interest on that amount. The court also ordered the respondents to pay the costs of the applicant’s motion filed on 21 February 2001. The costs of the applicant’s earlier motion were reserved for later determination.

The court's orders included dismissing the motion filed by the respondents on 21 February 2001 and granting the injunction sought by the applicant. The court also directed the respondents to pay the applicant's costs associated with the motion and left the costs of the earlier motion to be determined later. The court's decision provided clarity on the rights of the parties concerning the properties and the financial obligations of the respondents.

Orders

Orders of the court

1. The first and ninth respondents’ notice of motion filed 21 February 2001 be dismissed.

2. Until the trial of these proceedings or further or earlier order Anne Shirley Corbett by herself, her servants or agents, or otherwise howsoever be restrained from transferring, selling, charging, mortgaging, encumbering, securing, diminishing, disposing of, parting with possession of, making any declaration of trust in relation to, exercising any power to vary or modify any trust deed or any interest under any trust in relation to or otherwise dealing with the properties at 76 Cantwell Street, Anstead and 530 Gold Creek Road, Brookfield in the State of Queensland save that:

(a) she may charge, mortgage, encumber or secure 76 Cantwell Street Anstead on condition that any such charge, mortgage, encumbrance or security shall rank subsequent to and not prejudice any charge over or other interest in that property to which the applicant may be held to be entitled in these proceedings for or in relation to $676,067.50 or part thereof and interest at 9 per cent per annum thereon from 24 October 2000;

(b) she may charge, mortgage, encumber or secure 530 Gold Creek Road Brookfield on condition that any such charge, mortgage, encumbrance or security shall rank subsequent to and not prejudice any charge over or other interest in that property to which the applicant may be held to be entitled in these proceedings for or in relation to $59,855.25 or part thereof and interest at 9 per cent per annum thereon from 24 October 2000.

3. The first and ninth respondents pay the applicant’s costs of and incidental to their notice of motion filed 21 February 2001 to be agreed or failing agreement to be assessed.

4. The costs of and incidental to the applicant’s notice of motion filed 17 January 2001 be reserved.

5. Liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DRUMMOND J

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Ratio Decidendi

Legal Principle Established

Established by: DRUMMOND J

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