Clout v Anscore Pty Ltd - [2000] FCA 727

FEDERAL COURT OF AUSTRALIA
Clout (Trustee) v Anscor Pty Ltd [2000] FCA 727
MAREVA INJUNCTION - joinder of parties against whom applicant claims substantive relief under s 120 Bankruptcy Act 1966 (Cth) and interlocutory Mareva-type relief - requirements for a Mareva order to be made against a party to an action
Bankruptcy Act 1966 (Cth) s 120
Income Tax Assessment Act 1936 (Cth)
Cardile v LED Builders Pty Ltd (1999) 73 ALJR 657 considered
Agip (Africa) Ltd v Jackson [1990] 1 Ch 265 referred to
Official Trustee in Bankruptcy v Alvaro (1996) 66 FCR 372 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 AND ANSCOR INVESTMENTS PTY LTD
QG 7308 OF 1998
DRUMMOND J
31 MAY 2000
SYDNEY (VIA VIDEO LINK TO 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

JUDGE:

DRUMMOND J

DATE OF ORDER:

31 MAY 2000

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO BRISBANE)

THE COURT ORDERS THAT:
1.Anne Shirley Corbett, Anscor Investments Pty Ltd ACN 075 754 871, Thornville Pty Ltd ACN 067 231 930 in its own capacity and as trustee of the Anscor Executive Incentive Trust and as trustee of the Thornville Executive Incentive Trust and Croftby Downs Pty Ltd ACN 080 291 550 be joined as respondents to these proceedings.
2.Upon the applicant by his counsel giving the usual undertaking as to damages, until the trial of these proceedings or further earlier order Anscor Pty Ltd by itself, its servants or agents, or otherwise howsoever be restrained from transferring, selling, charging, mortgaging, encumbering, securing, diminishing, disposing of, parting with possession, 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, removing from its present locations or otherwise dealing with all or any of its money, assets,…

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 Clout v Anscore Pty Ltd

Details

AGLC: Clout v Anscore Pty Ltd [2000] FCA 727
Case: [2000] FCA 727
Decision Date: 31 MAY 2000

CaseChat Overview and Summary

The case of Clout v Anscore Pty Ltd was heard in a state court, where the applicant, Clout, sought relief against Anscore Pty Ltd and other respondents. The primary dispute centres on preventing the respondents from dealing with their assets and property, including transferring, selling, or otherwise encumbering them. Clout's application for interlocutory relief aims to restrain the respondents from disposing of or altering their assets until the final determination of the case. Additionally, Clout requested the joining of further respondents and sought an order regarding discovery.

The court had to determine whether to grant Clout's application for an interlocutory injunction, which would restrain the respondents from dealing with their assets. The legal issues included whether there was a sufficient likelihood of success on the merits of Clout's claims, whether Clout would suffer irreparable harm without such an injunction, and whether the balance of convenience favoured granting the injunction.

The court granted Clout's application for interlocutory relief, issuing an injunction to restrain Anscore Pty Ltd and the other respondents from dealing with their assets. The court found that there was a credible basis for Clout's claims, and the risk of irreversible harm justified the injunction. The court also ordered that additional respondents be joined to the proceedings and reserved the costs of the application. The discovery aspect of the application was adjourned, allowing Clout to reapply with notice to the relevant parties. The court further allowed liberty to apply for further orders if necessary.

The final orders of the court mandated that additional respondents be joined, restrained all respondents from dealing with their assets, reserved costs, adjourned the discovery application, and granted liberty to apply for further relief. These orders were intended to protect Clout's interests pending the final determination of the case.

Orders

Orders of the court

1. Anne Shirley Corbett, Anscor Investments Pty Ltd ACN 075 754 871, Thornville Pty Ltd ACN 067 231 930 in its own capacity and as trustee of the Anscor Executive Incentive Trust and as trustee of the Thornville Executive Incentive Trust and Croftby Downs Pty Ltd ACN 080 291 550 be joined as respondents to these proceedings.

2. Upon the applicant by his counsel giving the usual undertaking as to damages, until the trial of these proceedings or further earlier order Anscor Pty Ltd by itself, its servants or agents, or otherwise howsoever be restrained from transferring, selling, charging, mortgaging, encumbering, securing, diminishing, disposing of, parting with possession, 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, removing from its present locations or otherwise dealing with all or any of its money, assets, property, interests in property of any kind whatsoever whether situate within Australia or outside Australia.

3. Upon the applicant by his counsel giving the usual undertaking as to damages, until the trial of these proceedings or further earlier order Anne Shirley Corbett, Anscor Investments Pty Ltd ACN 075 754 871, Thornville Pty Ltd ACN 067 231 930 in its own capacity and as trustee of the Anscor Executive Incentive Trust and as trustee of the Thornville Executive Incentive Trust and Croftby Downs Pty Ltd ACN 080 291 550 by themselves, their servants or agents, or otherwise howsoever be restrained from transferring, selling, charging, mortgaging, encumbering, securing, diminishing, disposing of, parting with possession, 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, removing from their present locations or otherwise dealing with all or any of the real property of which they are registered as the owners and any of the property referred to in par 17(a), (c) - (e) of the affidavit of Anne Shirley Corbett sworn on 30 March 2000 and filed in Supreme Court action S 2337 of 2000 (excepting only the properties at 76 Cantwell Street, Anstead and at 530 Gold Creek Road, Brookfield owned by the said Anne Shirley Corbett).

4. The costs of and incidental to the application for interlocutory relief the subject of Orders 1, 2 and 3 be reserved.

5. In so far as the notice of motion seeks an order with respect to discovery, the notice of motion be adjourned generally with liberty to the applicant to bring it on for hearing on notice to the relevant respondents.

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

JUDGE:	DRUMMOND J
DATE OF ORDER:	31 MAY 2000
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO BRISBANE)