Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd

Case [2011] FCA 792


FEDERAL COURT OF AUSTRALIA

Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA 792

Citation: Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA 792
Parties: COMPLETE TECHNOLOGY INTEGRATIONS PTY LTD (ACN 097 753 458) v GREEN ENERGY MANAGEMENT SOLUTIONS PTY LTD (ACN 141 454 266), RAYMOND DAVID WHALING, SANDRA ANN WHALING and DEAN AARON WADE
File number: VID 1023 of 2010
Judge: DODDS-STREETON J
Date of judgment: 15 July 2011
Catchwords: PRACTICE AND PROCEDURE – Freezing order – Allegations of dishonesty against respondents – Possible entry into insolvency regime – Whether prima facie cause of action – Whether appreciable risk of dissipation of assets – Whether balance of convenience favours grant of relief
Legislation: Federal Court Rules 1979 (Cth) O 25A
Cases cited: Curtis v NID Pty Limited [2010] FCA 1072 cited
KGL Health Pty Ltd v Mechtler [2007] FCA 1410 cited
Rafferty v Time 2000 West Pty Ltd (No 7) [2011] FCA 405 cited
Uni-Span Height Safety Pty Ltd v Gold Coat Guardrail Pty Ltd [2009] FCA 819 cited
Victoria University of Technology v Wilson [2003] VSC 299 considered
Date of hearing: 8 July 2011 and 15 July 2011
Date of last submissions: 15 July 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 45
Counsel for the Applicant: Mr A Tragardh
Solicitor for the Applicant: Actuate Legal
Counsel for the Respondents: The Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1023 of 2010

BETWEEN:

COMPLETE TECHNOLOGY INTEGRATIONS PTY LTD (ACN 097 753 458)
Applicant

AND:

GREEN ENERGY MANAGEMENT SOLUTIONS PTY LTD (ACN 141 454 266)
First Respondent

RAYMOND DAVID WHALING
Second Respondent

SANDRA ANN WHALING
Third Respondent

DEAN AARON WADE
Fourth Respondent

JUDGE:

DODDS-STREETON J

DATE OF ORDER:

15 JULY 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

ORDER MADE 8 JULY 2011

1.(a)       The application for this order is made returnable immediately.

(b)The time for service of the application and supporting affidavit is abridged and service is to be effected by 9.00 pm on 13 July, 2011.

2.Subject to the next paragraph, this order has effect up to and including 15 July, 2011 ("the Return Date").  On the Return Date at 10.15 am there will be a further hearing in respect of this order before Justice Dodds‑Streeton.

3.Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.

4.In this order:

(a)Applicant, if there is more than one applicant, includes all the applicants;

(b)you, where there is more than one of you, includes all of you, and includes you if you are a corporation;

(c)       third party means a person other than you and the applicant;

(d)unencumbered value means value free of mortgages, charges, liens or other encumbrances.

5.(a)       If you are ordered to do something, you must do it by…

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AGLC
Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA 792
Case
[2011] FCA 792
Decision Date

CaseChat Overview and Summary

Complete Technology Integrations Pty Ltd (Complete) sought freezing orders against Green Energy Management Solutions Pty Ltd (Gemsol) and its directors, Raymond Whaling, Sandra Whaling, and Dean Wade (collectively, the respondents). Complete alleged that the respondents had engaged in various breaches of fiduciary and contractual duties, including misuse of confidential information, and had established a competing business in direct contravention of non-compete clauses contained in their employment contracts. Complete contended that the respondents had an appreciable risk of dissipating their assets, particularly in light of Gemsol’s possible entry into an insolvency regime.

The court was required to determine whether Complete had established a prima facie cause of action, whether there was an appreciable risk of dissipation of the respondents’ assets, and whether the balance of convenience favoured granting the relief sought. The court noted that the case involved serious allegations of dishonesty, and that the respondents’ possible entry into an insolvency regime heightened the risk of dissipation of their assets. However, the court also considered the potential prejudice to the respondents if the freezing orders were granted, including the impact on their businesses and personal lives.

After considering the evidence and arguments presented, the court concluded that Complete had not established a prima facie cause of action, and that the balance of convenience did not favour granting the freezing orders. The court also noted that the respondents had provided satisfactory undertakings regarding the preservation of their assets. Accordingly, the court discharged the freezing orders against all respondents.

No further orders were made by the court.

Orders

Orders of the court

ORDER MADE 8 JULY 2011

1. (a) The application for this order is made returnable immediately.

(b) The time for service of the application and supporting affidavit is abridged and service is to be effected by 9.00 pm on 13 July, 2011.

2. Subject to the next paragraph, this order has effect up to and including 15 July, 2011 ("the Return Date"). On the Return Date at 10.15 am there will be a further hearing in respect of this order before Justice Dodds‑Streeton.

3. Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.

4. In this order:

(a) Applicant, if there is more than one applicant, includes all the applicants;

(b) you, where there is more than one of you, includes all of you, and includes you if you are a corporation;

(c) third party means a person other than you and the applicant;

(d) unencumbered value means value free of mortgages, charges, liens or other encumbrances.

5. (a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions.

(b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions.

FREEZING OF ASSETS

6. (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of your assets which are in Australia (Australian assets) up to the unencumbered value of $500,000 (the relevant amount).

(b) if the unencumbered value of your Australian assets exceeds the relevant amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the relevant amount.

(c) It the unencumbered value of your Australian assets is less than the relevant amount, and you have assets outside Australia (ex-Australian assets) -

(i) you must not dispose of, deal with or diminish the value of any of your Australian and ex-Australian assets up to the unencumbered value of your Australian and ex-Australian assets of the relevant amount; and

(ii) you may dispose of, deal with or diminish the value of any of your Australian and ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the relevant amount.

7. For the purpose of this order -

(a) Your assets include:

(i) all your assets, whether or not they are in your name and whether or not they are co-owned;

(ii) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and

(iii) Funds held in bank accounts

(b) the value of your assets is the value of the interest you have individually in your assets.

PROVISION OF INFORMATION

8. Subject to paragraph 9, you must at or before the further hearing on the return date (or within such further time as the Court may allow) swear and serve on the applicant and file in this Court an affidavit setting out to the best of your ability all your assets and liabilities within Australia and worldwide, giving their value location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets and include in such affidavit where practicable, copies of all supporting documents including but not limited to current statements for any bank account, valuations, and motor vehicle registration records.

9. (a) This paragraph 9 applies if you are not a corporation and you wish to object that compliance with paragraph 8 may tend to incriminate you or make you liable to a civil penalty.

(b) This paragraph 9 also applies if you are a corporation and all persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them respectively or make them respectively liable to a civil penalty.

(c) You must at or before the further hearing on the return date (or within such further time as the Court may allow) notify the applicant in writing that you or all the persons referred to in sub-paragraph (b) wish to take such objection and identify the extent of the objection.

(d) If you give such notice, you need comply with paragraph 8 only to the extent, if any, that it is possible without disclosure of the material in respect of which the objection is taken.

(e) If you give such notice and the applicant wishes, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in sub-paragraph (b) wish to place before the Court in support of the objection

EXCEPTIONS TO THIS ORDER

10. This order does not prohibit you from -

(a) paying up to $1,000 a week on ordinary living expenses;

(b) paying your reasonable legal expenses;

(c) in relation to matters not falling within sub-paragraphs (a), (b) dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this Order was made, provided that before doing so he gives the applicant, if possible, at least two working days written notice of the particulars of the obligation.

11. You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may thereafter order that the exceptions are varied accordingly.

COSTS

12. The costs of this application are reserved.

PERSONS OTHER THAN THE APPLICANT AND RESPONDENTS

13. Setoff by banks

This order does not prevent any bank from exercising any right of set-off it has in respect of any facility which it gave you before it was notified of this order.

14. Bank withdrawals by the respondents

No bank need inquire as to the application or the proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order.

15. Persons outside Australia

(a) Except as provided in sub-paragraph (b) below, the terms of this order do not affect or concern anyone outside Australia.

(b) The terms of this order will affect the following persons outside Australia;

(i) you and your directors, officer, employees and agents (except banks and financial institutions);

(ii) any person (including bank and financial institution) who¬

(A) is subject to the jurisdiction of this Court;

(B) has been given written notice of this order, or has actual knowledge of the substance of this order and of his requirements; and

(C) is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and

(iii) any other person (including bank or financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person's assets.

16. Assets located outside Australia

Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made upon your or the third party's application, reasonable written notice of the making of the application is given to the applicant.

ORDER MADE 15 JULY 2011

1. The freezing order made on 8 July 2011 against Green Energy Management Solutions Pty Ltd be discharged.

2. The freezing order made on 8 July 2011 against Raymond David Whaling be discharged.

3. The freezing order made on 8 July 2011 against Sandra Ann Whaling be discharged.

4. The freezing order made on 8 July 2011 against Dean Aaron Wade be discharged.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 15 July 2011, I ordered that the freezing orders against all respondents be discharged (“discharge orders”). My reasons for making the freezing orders and discharge orders are set out below.EVIDENCE ON EX PARTE APPLICATION The ex parte application for freezing orders heard on 8 July 2011 was supported by the affidavit of Alexander Dunlop, a solicitor for Complete, affirmed on 7 July 2011. As appears from Mr Dunlop’s affidavit, Complete is a company involved in providing building automation, lighting control and energy management services, with offices in New South Wales, the ACT, Victoria, Queensland and Western Australia. Its managing director is Peter Garrett. The second and fourth respondents, Mr Whaling and Mr Wade, were formerly employees of Complete who ceased their employment on 17 March 2010. The third respondent, Sandra Whaling, is Mr Whaling’s wife. The first respondent, Gemsol, is a company registered on 13 January 2010, of which the individual respondents are the founding directors and sole shareholders. Its principal place of business, 5 Nugal Place, Isabella Plains, ACT, is the residential address of the Whalings. Mr Wade’s residential address is 9 Nugal Place, Isabella Plains, ACT. Complete commenced a proceeding in this Court against the respondents by application and statement of claim dated 26 November 2010, alleging that the respondents had variously infringed the its registered trademarks and copyright, engaged in misleading and deceptive conduct and passing off, misused confidential information and breached their contractual and fiduciary duties. Mr Dunlop deposed that the employment agreements of Messrs Whaling and Wade contained non‑compete and confidentiality clauses. He deposed at length, principally on information from Mr Garrett, to the alleged conduct of Messrs Whaling and Wade up to and including the termination of their employment on 12 March 2011, including establishing Gemsol, registering Complete’s former telephone number to Gemsol, commenting about Mr Whaling’s impending departure from Complete, dealing with or contacting Complete’s clients, providing lists of Complete’s clients to Gemsol, pursuing maintenance of an “automated lighting control” product promoted and used by Complete, and refusing to sign undertakings to adhere to the confidentiality and non-compete obligations in their employment contracts. Further, Mr Dunlop deposed (relying, in particular, on subpoenaed documents) to the conduct of Messrs Whaling and Wade during the non‑compete period (three months after termination) using Complete’s trademarks and giving quotations to clients, including immediately after the non‑compete period. Mr Dunlop deposed that Mr Garrett believed that Messrs Whaling and Wade sent quotations to Complete’s clients indirectly, through a third party, during the non‑compete period. He also deposed on information and belief to the respondents’ alleged misuse of confidential information and to the respondents’ conduct after 18 June 2010, evidenced after the third round of discovery and the production of documents on subpoena.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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