Commonwealth Bank of Australia v Oswal - [2011] WASC 84

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: COMMONWEALTH BANK OF AUSTRALIA -v- PANKAJ OSWAL IN HIS OWN CAPACITY AND ATF THE BURRUP TRUST [2011] WASC 84

CORAM: LE MIERE J

HEARD: 28 FEBRUARY 2011

DELIVERED : 4 APRIL 2011

FILE NO/S: CIV 1118 of 2011

BETWEEN: COMMONWEALTH BANK OF AUSTRALIA
Plaintiff
AND
PANKAJ OSWAL IN HIS OWN CAPACITY AND ATF THE BURRUP TRUST
Defendant

Catchwords:

Practice and procedure - Interlocutory orders - Freezing order - Application to discharge freezing order - Test - Good arguable case - Real risk of removal or dissipation of assets - Ex parte application - Alleged material non-disclosure - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 420A(a)
Rules of the Supreme Court 1971 (WA), O 52A r 5(4)(1), O 52A r 5(4)(a), O 52A r 5(4)(b)

Result:

Defendant's application to discharge or vary the plaintiff's freezing order be dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr S Vandongen SC
Defendant: Mr G Donaldson SC

Solicitors:

Plaintiff: Corrs Chambers Westgarth
Defendant: Hotchkin Hanly

Case(s) referred to in judgment(s):

Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350
Cardile v LED Builders Pty Ltd (1999) 198 CLR 38
Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014; (2010) 273 ALR 194
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49
Liberty Financial Pty Ltd v Scott [2002] FCA 345
National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271
National Bank of Sharjah v Dellborg [1993] 2 Bank LR 109

LE MIERE J: The plaintiff (the Bank) claims it is owed more than $US18 million by Garuda Aviation Pty Ltd (Garuda Aviation), a company associated with the defendant, Mr Oswal. Mr Oswal guaranteed the debts owed by Garuda Aviation to the Bank under a guarantee of 25 October 2007. The Bank has commenced action against Mr Oswal to recover the debts it claims are owed to it by Mr Oswal under the guarantee.
The Bank has appointed a receiver of the assets of Garuda Aviation secured by a chattel mortgage which secures the monies advanced by the Bank to Garuda Aviation. Those assets include a jet aeroplane (the Jet). However, the Bank believes there is likely to be a substantial shortfall after the sale of the Jet. Mr Oswal has left Western Australia and has removed his furniture and household effects. He has publicly stated that he has no intention of returning to Western Australia.
On 2 February 2011 I made a freezing order against Mr Oswal. The order requires Mr Oswal to not remove from Australia or in any way deal with or diminish the value of any of his assets in Australia up to a certain amount (Relevant Amount). The Relevant Amount was struck having regard to the amount of the alleged debt and the amount likely to be realised from the sale of the Jet. I also made an ancillary order requiring Mr Oswal to disclose, and verify by affidavit, his assets in Australia.
The defendant has applied for an order that the freezing order be discharged and set aside or alternatively that it be varied by reducing the Relevant Amount and extending the time for Mr Oswal to disclose his assets in Australia.
There are two bases for the defendant's application to set aside the freezing order. First, the defendant submits that the Bank did not discharge its obligation of upmost good faith in making the ex parte application. Secondly, and alternatively, the defendant submits that the requirements of O 52A r 5(4) of the Rules of the Supreme Court 1971 (WA), which set out the conditions upon which the court may make a freezing order, are not satisfied.

Dissolution of freezing order for non‑disclosure

It is the duty of a party asking for an order without notice to the party against whom the order is sought to bring to the notice of the court all facts material to the determination of his right to that order. The applicant must bring forward all the material facts which the absent party would presumably have brought forward in his defence to the application. A freezing order, like any other order obtained without notice, is liable to be discharged for material non‑disclosure. Material facts are facts which will be material for the judge to know in determining the application. The issue of materiality is to be decided by the court and not by the applicant or the applicant's legal representatives. In Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561, 570 the court said:
It is very difficult to give a general definition of the extent of the disclosure required because each case depends so much on its own facts. It is sufficient to say that the applicant must make a full and fair disclosure of all matters within its knowledge which are material to the proceedings and which tend in favour of the other party.
The applicant must make proper enquiries. The duty of disclosure applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made proper enquiries: Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350.
The party against whom the order has been made may apply for the order to be discharged on the basis that the failure to disclose material facts constitutes an irregularity in the making of the order.

The alleged non‑disclosure

The defendant relies upon three alleged material non‑disclosures. The first concerns the amount of the debt alleged to be owed. At the without notice hearing the Bank submitted that pursuant to the guarantee Mr Oswal was indebted to the Bank in the amount of $US18,221,625.60, but the notice of demand served by the Bank on Mr Oswal on 24 December 2010 stated that the Bank demanded in accordance with the terms of the guarantee that Mr Oswal pay to it the sum of $US16,844,108.79 which was the amount owed by Garuda Aviation to the Bank as at 23 December 2010.
The difference between the amount demanded by the bank in its notice of demand and the amount stated to be owed at the without notice hearing is made up of interest and 'break costs'. In its application for a freezing order the Bank relied upon the affidavit of Peter Ficko sworn 24 January 2011. Mr Ficko attached a draft statement of claim to his affidavit. That statement of claim pleaded express terms of the loan agreement between the Bank and Garuda Aviation including a term that Garuda Aviation agreed to pay any break costs incurred by the Bank from the termination of the facility. Paragraph 19 of the statement of claim pleaded that as at 21 January 2011 pursuant to the guarantee the defendant was indebted to the Bank in the amount of $US18,221,625.60. The loan facility was attached to Mr Ficko's affidavit. Clause 3A.4(c) of the loan agreement provides that the borrower agreed to pay break costs where termination of the facility results in the payment of any amount on a date which is earlier than the date upon which such amount would otherwise be due to be repaid and further provides that break costs will be such additional amounts as may be necessary to compensate the Bank for the cost of re‑employment of the funds prepaid at rates lower than the cost of funds provided that the Bank must use its reasonable endeavours to minimise such cost. The notice of demand served on Mr Oswal on 24 December 2010 was also attached to Mr Ficko's affidavit.
In National Bank of Sharjah v Dellborg [1993] 2 Bank LR 109, referred to in Bean D and Parry I, Injunctions (10th ed, 2010) [5.22], Lloyd LJ said at 112 that the place to disclose the facts is in the affidavit and not in the exhibits. His Lordship said that if the facts are not fairly stated in the affidavit, it will not assist the claimant to be able to point to some exhibit from which that fact might be extracted. In Liberty Financial Pty Ltd v Scott [2002] FCA 345 [47] Weinberg J cited a comment of Slade J in Brink's Matt Ltd v Elcombe that:
Particularly in heavy commercial cases, the borderline between material facts and non‑material facts may be a somewhat uncertain one. While in no way discounting the heavy duty of candour and care which falls on persons making ex parte applications, I do not think the application of the principle should be taken to extreme lengths.
Each case must be looked at according to its circumstances. In this case the Bank claims that as at 21 January 2011 Mr Oswal owed it $US18,221,625.60 pursuant to the guarantee. In his affidavit Mr Ficko stated that Mr Oswal is indebted to the Bank in that amount and that he is not aware of any valid defence Mr Oswal may raise to this claim. The draft statement of claim pleaded relevant terms of the loan agreement, including the entitlement to recover break costs, and of the guarantee and the service of the notice of demand on Mr Oswal. The notice of demand, the loan agreement and the guarantee were all attached to Mr Ficko's affidavit.
At the hearing of the ex parte application the following exchange occurred between counsel and the court:
Vandongen SC: In relation to the good arguable case on an accrued cause of action test, really it's set out in the outline of submissions but in case your Honour hasn't had an opportunity to go to the documents I thought that I would do that now to explain to your Honour how they work, unless your Honour doesn't want me to do that.
Le Miere J: I am satisfied having read Mr Ficko's affidavit and the documents annexed thereto, that there is a good, arguable case that there is a debt, something in excess of $US18 million, owing by Mr Oswal to the bank, and that's sufficient.
Vandongen SC: I won't trouble your Honour any further on that then (ts 17).
The failure of the plaintiff to explain to the court precisely how the sum of $US18,221,625.60 was made up and that the major part of the difference between that sum and the sum stated in the notice of demand served on Mr Oswal was 'break costs' does not amount to a material non‑disclosure in the circumstances of this case. That is particularly so in circumstances where counsel for the plaintiff was stopped from explaining the documents to the court.

Hughes' confidential exhibit 21 January 2011

At the hearing of the ex parte application for a freezing order the Bank relied upon a confidential affidavit of Brian Hughes sworn 31 January 2011. Mr Hughes is the receiver appointed by the Bank to the secured asset of Garuda Aviation, that is the Jet. Exhibited to Mr Hughes' affidavit as a confidential exhibit is a copy of a letter from Mr Hughes to Mr Ficko dated 21 January 2011. The confidential exhibit contains Mr Hughes' estimate of the likely sale price of the Jet which was then in the progress of being sold by Mr Hughes as receiver. The confidential letter is in the following terms:
I confirm that our enquiries to date, including our market research and discussions with informed brokers, indicate that the likely price sale of [the Jet] will be in the range of …
Accordingly, given the bank's debt is currently $US18,221,625.60 this will lead to a shortfall to the bank of between ...This estimated shortfall excludes the costs of realisation and additional interest which continues to accrue. [Confidential figures omitted]
The price which Mr Hughes estimated the Jet may be sold for is confidential because Mr Hughes swore that disclosure of his estimate of the likely sale price may artificially deflate the price that may otherwise be obtained as there was a real risk that future bids for the Jet would be altered based on that information.
The defendant submitted that there was a material non‑disclosure because:
(a)the enquiries referred to are not identified and so cannot be tested;
(b)the market research referred to is not identified and so cannot be tested;
(c)the 'informed brokers' are not identified and so cannot be contacted to verify any advice;
(d)there is no explanation as to the basis for the view that these contacted brokers are 'informed'; and
(e)the basis of the 'valuation' is not explained.
I find there was no relevant material non‑disclosure. The likely sale price of the Jet referred to in the confidential exhibit was not, and did not purport to be, a valuation of the Jet. It was, or was evidence of, Mr Hughes' estimate of the range of likely sale prices based on his enquiries to date. The evidence was relied upon to establish that there was a danger that there might be a shortfall in the amount Mr Oswal owed to the Bank after the Jet was sold. The weight to be afforded to Mr Hughes' estimate was a matter for the court to determine. The court's attention was drawn to the confidential exhibit. It was apparent on the face of the document that the matters referred to by the defendant at [16] were not identified in the confidential exhibit. There was no material non‑disclosure in failing to identify those matters.

Failure to disclose blue book prices

Mr Oswal's solicitor, Mr Macpherson, attached to his affidavit sworn 22 February 2011 two printouts from a website called ' which describes itself on its home page as 'the premiere resource for aircraft values' and states 'for over fifty years, aircraft blue book has been providing valuable information designed to give the most accurate, comprehensive and timely assessment of the aircraft market'. Mr Macpherson described the first printout as a copy of a printout from that website stating the average retail and wholesale values of Gulfstream G‑IV SP business jets for models between 1986 and 2002. The Jet is a Gulfstream G‑IV SP business jet serial number 1441. The second attachment to Mr Macpherson's affidavit is a printout from a website called ' which refers to a Gulfstream G‑IV SP aircraft bearing serial number 1452 for sale at an asking price of $16,750,000.
There is no evidence that the plaintiff or the receiver was obliged to consider the blue book material referred to by Mr Macpherson. The relevant material fact was the price likely to be obtained by the receiver from the sale of the Jet. There is no material non‑disclosure in failing to make enquiries about or draw to the court's attention the material published on the websites referred to by Mr Macpherson.

Requirements of O 52A r 5(4)

The second basis of the defendant's application is that the requirements of O 52 r 5(4) are not satisfied. Order 52A r 5(1) provides that rule applies, amongst other things, if an applicant has a good arguable case on an accrued cause of action that is justiciable in the court. I am satisfied that the plaintiff has a good arguable case and the defendant did not contend otherwise.
Order 52A r 5(4) provides, relevantly:
The court may make a freezing order or an ancillary order or both against a … prospective judgment debtor if the court is satisfied … that there is a danger that a prospective judgment will be wholly or partly unsatisfied because any of the following might occur ‑
(a)the … prospective judgment debtor … absconds; or
(b)the assets of the … prospective judgment debtor … are ‑
(i)removed from Australia or from a place inside or outside Australia; or
(ii)disposed of, dealt with or diminished in value.
The plaintiff bears the onus of satisfying the court that the freezing order should be continued or renewed. The issue is whether the plaintiff has produced sufficient evidence to satisfy the court that there is a danger that a prospective judgment against the defendant will be wholly or partly unsatisfied because the assets of the defendant are removed from Australia or disposed of, dealt with or diminished in value.
A freezing order may be granted even though there is no evidence of the defendant's positive intention to frustrate a judgment: National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271, 277 (Mason CJ, Brennan & Deane JJ); Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49, 53 (Young CJ); Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014; (2010) 273 ALR 194 [10] (Kenny J).
The fact that the defendant is outside the jurisdiction and no longer resides in the jurisdiction is not of itself sufficient to warrant an inferential finding of danger of dissipation: Deputy Commissioner of Taxation v Hua Wang Bank Berhad [12]. Nevertheless, that is a relevant consideration.
On the evidence before me, I am satisfied that there is a danger that a prospective judgment will be unsatisfied because assets of the defendant are removed from Australia or disposed of, or dealt with, or diminished in value. This danger is sufficient to justify the continuation of the freezing order in all the circumstances.
There are a number of factors that support a finding of sufficient danger. First, the defendant has left Western Australia and has removed his furniture and household effects, including luxury goods. There is hearsay evidence that Mr Oswal does not intend to return to Western Australia. The defendant submits that the evidence shows no more than that the defendant is relocating his domicile or place of residence and is not 'absconding'. The plaintiff does not submit that there is a danger that a prospective judgment against the defendant will be wholly or partly unsatisfied because he has absconded within the meaning of O 52A r 5(4)(a). The plaintiff submits and I find that there is a danger that a prospective judgment will be unsatisfied because the defendant's assets are removed from Australia or disposed of, dealt with or diminished in value within the meaning of O 52A r 5(4)(b).
In Glenwood Management Group Pty Ltd v Mayo the defendant had for some years had the intention or desire to enter into business in the United States and take his family to live there, at any rate, temporarily. He was engaged in making arrangements to leave for the United States. Though he intended to retain his house in Melbourne and to let it while he was abroad, there was no evidence as to whether the house would realise sufficient to cover a judgment in favour of the plaintiffs for the amount claimed. Young CJ found that on the whole of the evidence it was reasonable to draw the inference that Mayo would, unless restrained, seek to transfer his assets out of the jurisdiction. Mayo argued that his transfer to the United States was a perfectly legitimate business decision, considered for some considerable time, not in anyway concealed and taken before he had any notice of the proceedings against him and there could be no abuse of process involved. In finding that there was a risk that Mayo would remove his assets from the jurisdiction before judgment was satisfied Young CJ said:
It is true that a Mareva order is not to be used to provide a plaintiff with some security over a defendant's assets or to rewrite the law of insolvency … it is true also that it has been said that the granting of a Mareva injunction is intended to prevent a perceived abuse of the court's process … but neither proposition involves the consequence that a plaintiff must show that there is a risk that there will be an abuse of the process of the court in the ordinary sense of that expression. What a plaintiff must show is 'some grounds for believing that there is a risk of the assets being removed before the judgment or award is satisfied' … Moreover, in the only case, so far as I am aware, where the question has been asked, does the plaintiff have to show that the disposal of assets is intended to frustrate a judgment the answer given was, 'No'. The court is concerned with effect rather than purpose … In the present case, the plaintiffs have, I think discharged that responsibility. Even though Mayo may have had no intention before these proceedings were instituted of removing assets from the jurisdiction in order to defeat a claim by the plaintiffs, it is obvious that there is a real risk that if an injunction were refused he would take steps to place as many of his assets as possible out of the reach of the plaintiffs. I base that conclusion almost entirely upon the fact that Mayo intends to set up business in the United States and he therefore has a legitimate reason for moving assets to that country (references to authorities omitted) [53].

Prior to December 2010 the defendant was a businessman ordinarily resident in Western Australia. He has left Western Australia and has stated his intention not to return and to reside elsewhere. He has a legitimate reason for moving assets out of Australia. Furthermore, the defendant has already removed assets out of Western Australia ‑ furniture and household effects, including luxury goods.
Secondly, all of the defendant's known assets in Australia, or assets in which the defendant may have a beneficial interest, are securities. There is no evidence as to how easily or readily the shares might be sold but they might be disposed of or dealt with in a way to make them unavailable to a prospective judgment creditor.
Thirdly, the plaintiff has a strong arguable case against the defendant. Mr Ficko has sworn that he is not aware of any valid defence the defendant may raise to the plaintiff's claim. The defendant has not adduced evidence to show that he has any defence to the plaintiff's claim. Indeed, the defendant has mounted no argument that he has a defence to the claim other than to question the liability of Garuda Aviation, and the defendant, for 'break costs' and the amount of those break costs. The amount of the break costs is substantial but less than 10% of the amount of the plaintiff's claim. On the evidence before me, there is likely to be shortfall after the Jet has been sold, even if the break costs are not taken into account in determining the amount owed by Garuda Aviation and the defendant to the plaintiff.
Fourthly, the plaintiff served a notice of demand on the defendant on 24 December 2010. The amount stated in the notice of demand did not include any break costs. The defendant made no response to that notice of demand. The defendant did not contact the plaintiff, or its lawyers to acknowledge or contest the demand or even to seek any information in relation to it.
Fifthly, representatives of the defendant in Western Australia declined to inform the plaintiff's solicitors how they could contact the defendant in relation to the plaintiff's claim or to accept instructions from the defendant in relation to the plaintiff's claim. The defendant's representatives in Western Australia include Mr Chris Codrington, a public relations consultant, engaged on behalf of the defendant to act as his spokesperson in Western Australia. Mr Codrington has made a number of public statements on behalf of the defendant. However, Mr Codrington informed the plaintiff's solicitors that he was not prepared to discuss the defendant's whereabouts with the plaintiff's lawyers.
Prior to issuing the writ in this action the plaintiff's solicitors contacted a number of solicitors acting for the defendant in relation to other matters but those solicitors were unable to obtain instructions from the defendant to act for him in relation to the plaintiff's claim. The defendant did not appoint solicitors to act for him in relation to the plaintiff's claim until after the court had made orders for substituted service of the writ on the defendant by service, amongst other things, on solicitors acting for the defendant in other matters.
Mr Dirk Fairweather is a Western Australian solicitor. On 14 January 2011 he informed the plaintiff's solicitors that whilst he acted for the defendant in relation to certain matters he did not then hold instructions on behalf of the defendant in relation to the plaintiff's claim against the defendant. Mr Fairweather said that his firm had made an enquiry as to whether they are to receive instructions in respect of those matters and would let the plaintiff's solicitors know when he was able to clarify his position. Approximately 14 minutes later Mr Fairweather informed the plaintiff's solicitors that whilst he did not have instructions from the defendant in relation to that matter 'for the sake of expediency' he invited the plaintiff's solicitors to let him know, amongst other things, the plaintiff's and the receiver's intentions with respect to the sale of the Jet.
On 21 January 2011 the plaintiff's solicitor telephoned Mr Grant Pestell, a Western Australian solicitor. Mr Pestell said that he acted for the defendant in his personal capacity in respect of a matter, requested that the plaintiff's solicitor send him an email confirming the matters in relation to the plaintiff's claim and that he would try and get instructions. On 21 January Mr Pestell informed the plaintiff's solicitors that he did not have instructions to act or accept service.
Sixthly, the receivers of Burrup Fertilisers Pty Ltd (Burrup Fertilisers), of which the defendant is a director, have published reports that they are investigating various issues relating to the company's affairs and would be assisted by meeting with the defendant but have been unable to do so.
On 22 December 2010 the receivers of Burrup Fertilisers issued a report which stated:
The receivers are in the process of arranging a meeting with Burrup Fertilisers directors to discuss various issues relating to the company's affairs, including a number of questions regarding certain financial transactions. It is expected this meeting will be held in the next two weeks.
The defendant is, or was at the time, a director of Burrup Fertilisers. On 19 January 2011 the receivers of Burrup Fertilisers issued a further report which stated, amongst other things:
The receivers' investigations are continuing. As a result of the investigations to date, the receivers are pursuing a number of vehicles, two luxury motor yachts, and land holdings over which they believe Burrup Fertilisers has claims. The receivers are taking steps to ensure that these assets are not sold before Burrup Fertilisers' interests can be determined by the courts.
In addition, the receivers have identified a number of employees not engaged on Burrup Fertilisers' work. These employees have been stood down. As well, the receivers have identified and reviewed numerous board level related party transactions. This part of the investigation remains ongoing.
At the end of their report the receivers stated:
While it would assist the receivers if Mr and Mrs Oswal were in the country, the receivers remain confident they can conclude their investigation satisfactorily.
The plaintiff relied upon these reports not for the truth of what is said in them but for the fact that the statements have been made. The receivers have said that they have been conducting investigations, they would be assisted by speaking to Mr Oswal but Mr Oswal has been unable or unwilling to do so to date.
The making of a freezing order is discretionary and every case must be decided on its unique facts. The granting of a freezing order before judgment has a significant impact on the property of the person against whom it is made, and carries the sanction of contempt. Therefore it requires a higher degree of caution by the court and should not be granted lightly: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, 403 ‑ 404.
A good arguable case and a real risk of dissipation of assets have been established. The defendant has not demonstrated that the freezing order imports unacceptable hardship on the defendant or is unfair in all the circumstances beyond the hardship and burden which generally results from the making of a freezing order. I am satisfied that it is in the interests of justice to continue the freezing orders.

Variation of freezing orders

In the alternative, the defendant seeks an order that the freezing order be varied by amending the Relevant Amount to a figure to be determined by the court. The value of the assets covered by the freezing order should not exceed the likely maximum amount of the applicant's claim, including interest and costs: see Consolidated Practice Direction 9.6.1 [11]. The likely maximum amount of the plaintiff's claim, including interest and costs, was $US18,221,625.60 as at 21 January 2011. Since then interest has been accruing, on the plaintiff's case at the rate of $US3,949.04 per day. Furthermore, costs will have been incurred. However, the amount of the plaintiff's claim will be reduced by the amount realised from the sale of the Jet by the receiver. The Relevant Amount should be determined having regard to the likely maximum amount of the plaintiff's claim against the defendant and the amount the receiver is likely to realise from the sale of the Jet.
The defendant submits that on the basis of the evidence in the affidavit of Mr Macpherson of 22 February 2011 the best evidence of the value of the Jet is to the effect that its value exceeds the properly understood quantum of the debt.
The evidence in the affidavit of Mr Macpherson is the printouts from the websites I have already referred to. The receiver has a statutory duty of care when exercising a power to sell a company's property: Corporations Act 2001 (Cth) s 420A(1). However, I do not find the evidence in Mr Macpherson's affidavit very helpful in determining the amount the receiver is likely to realise from the sale of the Jet. The Jet is a Gulfstream G‑IV SP aircraft bearing the serial number 1441. The blue book printout lists the 'average retail' and 'wholesale value' of Gulfstream G‑IV SP aircraft bearing serial numbers 1435 ‑ 1475. It is not stated whether the 'average retail' or 'wholesale value' refer to asking prices, recent sales or something else. If it refers to sales the printout does not set out the number, if any, of actual sales, the range of prices or the terms and conditions of sale. There is no indication of the hours flown, maintenance history, condition, interior fit out or other matters relevant to the price likely to be realised on sale. The second printout relates to a Gulfstream G‑IV SP aircraft with the serial number 1452 (Alternative Jet). The printout states an 'asking price'. There is no information which enables a comparison to be drawn between the Alternative Jet and the Jet. Things such as the number of hours flown, maintenance history, standard of fit out and general condition are relevant to the likely price to be realised. In his confidential affidavit the receiver has pointed to a number of differences between the Jet and the Alternative Jet. There is no evidence which permits an inference to be drawn as to the likelihood of the Alternative Jet realising its asking price within a reasonably short time.
The receiver has provided confidential evidence concerning the sale and marketing of the Jet. The receiver has received a number of letters of intent or indicative offers in respect of the Jet over a price range. The receiver is currently engaged in negotiations. Having regard to the evidence of the receiver, I find that there is no reason to vary the Relevant Amount in the existing freezing order.
I am satisfied that there is a reasonable likelihood that the plaintiff will obtain a judgment in an amount that exceeds the amount likely to be realised from the sale of the Jet by an amount approximating the Relevant Amount. Accordingly, there is no reason to vary the Relevant Amount.

Ancillary order - disclosure of information

The defendant did not submit that [8] of the freezing order, which requires the defendant to disclose information concerning his assets in Australia, should be varied, in the event that I did not discharge the whole of the freezing order, except to extend the date by which the defendant is to provide the information and verify it by affidavit. The time for the defendant to provide the disclosure of asset information in accordance with [8] and [9] of the freezing order will be extended so as to give the defendant a reasonable time in which to comply with the orders. I will hear from the parties as to what extension should be made.