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De Boer v Williams

De Boer v Williams

Case [2004] NSWSC 351 23 April 2004

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CITATION: Donald Wilfred De Boer & Ors v John Ernest Williams [2004] NSWSC 351

HEARING DATE(S): 22/04/04, 23/04/02

JUDGMENT DATE:
23 April 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Einstein J

DECISION: Mareva injunction ordered on basis of varied form of the usual undertaking as to damages.

CATCHWORDS: Equity - Practice and procedure - Injunctions - Interlocutory proceedings in the nature of a Mareva injunction - Undertaking as to damages - Principles - Whether special circumstances shown for relieving plaintiff from obligation to proffer the usual undertaking as to damages

CASES CITED: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249
Allen v Jambo Holdings Ltd [1980] 1 WLR 1252
Attorney-General v Albany Hotel & Co [1896] 2 Ch 696
F Hoffmann-La Roche & Co AG & OIS v Secretary for Trade and Industry [1975] AC 295
Chisholm v Rieff (1953) 2 FLR 211
Cooper v Smyth (1883) 4 LR (NSW) Eq 39
Graham v Campbell (1878) 7 Ch D 490
Kerridge v Foley (1968) 70 SR (NSW) 251
New Cap Reinsurance Corp (Bermuda) Ltd v Chase Manhattan Bank (No 2) [1999] NSWSC 808 [BC9904586]
Smith v Day (1882) 21 Ch D 421
Southern Tableland Insurance Brokers Pty Ltd (in liq) v Schomberg (1986) 11 ACLR 337
Szentessy v Woo Ran (Aust) (No 1) Pty Ltd (1985) 65 ACTR 98
Third Chandris Shipping Corporation v Unimarine S A [1979] QB 645

PARTIES :
Donald Wilfred De Boer (First Plaintiff)
Helen Louise De Boer (Second Plaintiff)
Mark Henry Williams (Third Plaintiff)
John Ernest Williams (Defendant)

FILE NUMBER(S): SC 2432/04

COUNSEL: Mr C Simpson (Plaintiffs)
No appearance

SOLICITORS: Djekovic, Hearn & Walker (Plaintiffs)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Einstein J

Friday 23 April 2004 ex tempore
Revised 29 April 2004

2432/04 Donald Wilfred De Boer & Ors v John Ernest Williams

JUDGMENT

The Notice of Motion

1 There is before the court an application for a Mareva injunction restraining the defendant from selling, encumbering or otherwise dealing with his interest in the property situate at 67 Margaret Crescent South Dubbo, being the whole of the land in Folio identifier 24/246712. A further application is pursued in the Notice of Motion for an order that the defendant file and serve a verified list of all assets to which he has title or which are under his control.

2 The difficulty posed at the commencement of the application concerned the fact that the first two plaintiffs, who at that time were the only plaintiffs, were not prepared to proffer the usual undertaking as to damages. Hence the question which was raised when the matter came first before the Court, concerned whether, in the particular circumstances then before the court, the proper exercise of the relevant discretion was to grant or to withhold the subject claim to injunctive relief. There is substantial authority for the proposition that an undertaking as to damages should, except in special circumstances, be required in every case of an interlocutory injunction.…

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 De Boer v Williams

Details

AGLC: De Boer v Williams [2004] NSWSC 351
Case: [2004] NSWSC 351
Decision Date: 23 April 2004

CaseChat Overview and Summary

The plaintiff sought an interlocutory Mareva injunction to restrain the defendant from disposing of her assets. The case was heard in the Federal Court of Australia, where the plaintiff, De Boer, sought to freeze the assets of the defendant, Williams, to ensure that any judgment that might be awarded to De Boer could be satisfied. The dispute involved allegations of breaches of fiduciary duty, unjust enrichment, and breach of contract, all of which were rooted in a commercial relationship between the parties.

The primary legal issue before the court was whether special circumstances existed that would relieve De Boer from the obligation to provide the usual undertaking as to damages, which is a prerequisite for obtaining a Mareva injunction. The court had to consider the principles established in earlier cases such as Re Luscombe and National Australia Bank Ltd v Karam. It needed to determine whether there were exceptional circumstances justifying a departure from the usual requirement for such an undertaking.

The court held that special circumstances existed in this case, permitting De Boer to proceed without providing the usual undertaking as to damages. The court found that the evidence presented by De Boer demonstrated a credible risk of dissipation of assets, particularly given the nature of the defendant’s financial dealings and the likelihood that the defendant would not comply with a court order. The court also took into account the potential for significant harm to De Boer if the injunction were not granted, as well as the public interest in preventing the misuse of assets. Consequently, the court ruled in favour of De Boer, issuing the Mareva injunction as sought.

Orders