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Davis v Turning Properties Pty Ltd

Davis v Turning Properties Pty Ltd

Case [2005] NSWSC 742 15 July 2005

Jurisdiction

Mareva Orders

Foreign Judgments

Civil Litigation & Procedure

Private International Law

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CITATION:
Davis v Turning Properties [2005] NSWSC 742

HEARING DATE(S): 15 July 2005

JUDGMENT DATE :

15 July 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Mareva order granted

CATCHWORDS:
PROCEDURE - miscellaneous procedural matters - Mareva orders - jurisdiction of court to make Mareva order in aid of a foreign Mareva order - PRIVATE INTERNATIONAL LAW - foreign judgments - effect and enforcement - Mareva order made in the Bahamas - appropriateness of an Australian Mareva order in aid of the Bahamas order - PROCEDURE - Mareva orders - whether desirable to have a value below which assets are not to be reduced expressed in a foreign currency - PROCEDURE - Mareva orders - whether proceedings seeking substantive relief need to be commenced in this Court before this Court can make a Mareva order

LEGISLATION CITED:
Admiralty Rules 1988 (Cth)
Civil Jurisdiction and Judgments Act 1982 (UK)
Civil Procedure Act 2005
Corporations Law
Foreign Judgments Act 1973
Foreign Judgments Act 1991 (Cth)
Supreme Court Act 1970
Supreme Court Act 1981 (UK)
Supreme Court Rules 1970

CASES CITED:
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Australian Mutual Provident Society v Gregory (1908) 5 CLR 615
Biscoe, Mareva and Anton Piller Orders, (Butterworths 2005)
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Channel Tunnel Group Pty Ltd v Balfour Beatty Construction Limited [1993] AC 334
Coxton Pty Ltd v Milne (Court of Appeal of NSW, 20 December 1985, unreported)
Cross on Evidence, 7th Australian edition (Butterworths 2004)
DPP v Alexander (1993) 33 NSWLR 482
In Re Kooperman (1928) B & C R 49
LED Builders Pty Ltd v Eagle Homes Pty Ltd (1997) 78 FCR 65
Patrick Stevedores No. 2 Pty Ltd v MV Turakina (1998) 154 ALR 514; (1998) 84 FCR 493
Patrick Stevedores No 2 Pty Ltd v Proceeds of Sale of the vessel MV Skulptor Konenkov (1998) 79 FCR 560; (1998) 161 ALR 131
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
The Siskina [1979] AC 210
Van Shun Dyeing Factory Limited (in liquidation) v Cheung (Supreme Court of NSW, 16 July 1991, unreported)
Wendo v The Queen (1963) 109 CLR 559
White v Verkouille (1989) 2 Qld R 191
Yoon v Song (2000) 158 FLR 295

PARTIES:
Peter Thomas Davis - Plaintiff
Turning Properties Pty Ltd - First Defendant
Derek Guise Turner - Second Defendant

FILE NUMBER(S):
SC 3909/05

COUNSEL:
P Fury - Plaintiff
J Levingston - First Defendant
No Appearance - Second Defendant

SOLICITORS:
S Klinger - Plaintiff
Bolzan & Dimitri - First Defendant
No Appearance - Second Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

FRIDAY 15 JULY 2005

3909/05 PETER THOMAS DAVIS v TURNING PROPERTIES PTY LTD & ANOR

JUDGMENT – Ex Tempore (Revised and Expanded 19 July 2005)

1 HIS HONOUR: This is an application for a Mareva order in support of a Mareva order issued in the Bahamas. The…

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 Davis v Turning Properties Pty Ltd

Details

AGLC: Davis v Turning Properties Pty Ltd [2005] NSWSC 742
Case: [2005] NSWSC 742
Decision Date: 15 July 2005

CaseChat Overview and Summary

The case of Davis v Turning Properties Pty Ltd involved the appellant, Davis, seeking to enforce a Mareva order made in the Bahamas against the respondent, Turning Properties, in Australia. The dispute centred around the enforcement of a foreign Mareva order in Australian courts, and the appropriateness of making a Mareva order in aid of the foreign order. The matter was heard in the Federal Court of Australia, which was tasked with determining whether it had jurisdiction to issue a Mareva order to assist the Bahamian order and whether the proceedings seeking substantive relief needed to be commenced in the Australian courts before the Mareva order could be made.

The legal issues before the court were whether the Australian court had jurisdiction to make a Mareva order in aid of a foreign Mareva order, and whether it was appropriate to do so in this case. Additionally, the court considered whether it was desirable to express the value below which assets are not to be reduced in a foreign currency, and whether proceedings seeking substantive relief needed to be commenced in the Australian courts before a Mareva order could be made.

The court held that it had jurisdiction to make a Mareva order in aid of a foreign Mareva order, as it was appropriate to do so in this case. The court found that it was not necessary for proceedings seeking substantive relief to be commenced in the Australian courts before a Mareva order could be made. Furthermore, the court decided that it was not desirable to express the value below which assets are not to be reduced in a foreign currency, as it would create uncertainty and potential complications in enforcement. The court concluded that the Australian Mareva order should be made in aid of the Bahamian order to ensure the enforcement of the foreign judgment.

The final orders made by the court were that the appellant was granted leave to enforce the Bahamian Mareva order in Australia, and the court made a Mareva order in aid of the Bahamian order. The court also directed that the value below which assets are not to be reduced should be expressed in Australian dollars.

Orders