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Distinctive FX Pty Ltd v Wright

Distinctive FX Pty Ltd v Wright

Case [2015] VSC 299 22 June 2015

Interlocutory Injunction

Freezing Order

Arguable Case

Danger of Unsatisfied Judgment

Balance of Convenience

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2013 03774

DISTINCTIVE FX PTY LTD (ACN 075 098 609) & ORS	Plaintiffs
v
KYLIE WRIGHT AND PETER VINCE (AS TRUSTEES OF THE ESTATE OF JASON ANDREW VAN DER SLOT PURSUANT TO PART XI OF THE BANKRUPTCY ACT 1966 (CTH)) AND OTHERS	Defendants

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 JUNE 2015
DATE OF JUDGMENT:	22 JUNE 2015
CASE MAY BE CITED AS:	DISTINCTIVE FX PTY LTD v WRIGHT
MEDIUM NEUTRAL CITATION:	[2015] VSC 299

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INTERLOCUTORY INJUNCTION – Freezing order – Arguable case – Danger of unsatisfied judgment – Allegations of dishonesty – Course of conduct alleged over extended period of time – Substantial amounts – Balance of convenience – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 37A.02(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms CM Kenny QC with Mr AF Solomon-Bridge	Millens Pty Ltd
For the Second and Fourth Defendants	Mr J Kohn	Tony Hargreaves & Partners
For the Third Defendant	S Pitt	Madgwicks

HIS HONOUR:

A. Introduction

This proceeding was commenced in mid-2013. Broadly speaking, the proceeding is concerned with allegations of millions of dollars being misappropriated by an employee. It is alleged substantial amounts of unlawfully obtained funds were paid into the bank accounts of 2 companies, and then withdrawn and dissipated. The allegations not only relate to large amounts of money, but also allege the unlawful conduct occurred over an extended period of time.

B. The parties

The first plaintiff, Distinctive FX Pty Ltd (“Distinctive FX”), is the employer of staff of the Salvo Property Group. Jason van der Slot (“Jason”) was an employee of Distinctive FX from July 2004 to 29 February 2012. He was employed as what might loosely be described as a bookkeeper. Part of his role was to authorise payments for suppliers and contractors.

Jason was originally joined as the first defendant. He committed suicide on 8 November 2013. The whole of Jason’s estate was bequeathed to his widow, Elizabeth van der Slot. The trustees of his estate and Elizabeth are now defendants in his stead. Elizabeth was appointed under the will as executrix and trustee of Jason’s will. Trustees were also appointed to the estate under the Bankruptcy Act 1966 (Cth).

Elizabeth is also the second defendant in her own right.

The third defendant, NKT Holdings Pty Ltd (“NKT Holdings”), is a company which, it is alleged, had no legitimate relationship with the Salvo Property Group.

The fourth defendant, JLG Holdings Pty Ltd (“JLG Holdings”), was incorporated on 18 June 2004. From that time, Elizabeth was registered as the sole director, secretary and shareholder of JLG Holdings. Shortly after incorporation, it is alleged Elizabeth opened a bank account at Bendigo Bank for JLG Holdings. It is also alleged JLG Holdings had no legitimate relationship with the Salvo Property Group.

The remaining 3 plaintiffs share a common director with Distinctive FX and, like Distinctive FX, were all involved in property…

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 Distinctive FX Pty Ltd v Wright

Details

AGLC: Distinctive FX Pty Ltd v Wright [2015] VSC 299
Case: [2015] VSC 299
Decision Date: 22 JUNE 2015

CaseChat Overview and Summary

The case before the court was between Distinctive FX Pty Ltd, a company in the financial sector, and Wright, an individual who was alleged to have engaged in dishonest conduct over an extended period. The dispute centred around allegations of financial misconduct and the potential loss of assets by the respondent. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether a freezing order should be granted to prevent the respondent from disposing of assets that could be used to satisfy any potential judgment in favour of the applicant. This required the court to consider the criteria for granting such an order, including the existence of an arguable case, the risk of the respondent defeating the applicant’s claim if judgment were to be entered, and the balance of convenience.

The court considered the applicant's submissions regarding the arguable case, noting the detailed allegations of dishonest conduct and the substantial amounts of money involved. The court found that the applicant had demonstrated a credible basis for the allegations, which included evidence of a course of conduct over a significant period. Regarding the risk of an unsatisfied judgment, the court was satisfied that there was a real possibility that the respondent could dissipate assets before any final determination of the merits of the case. The court also assessed the balance of convenience, concluding that the preservation of the respondent's assets was necessary to prevent potential injustice to the applicant.

Based on these findings, the court determined that all the criteria for a freezing order were met. The court emphasised the importance of preventing the dissipation of assets in cases where there are serious allegations of financial misconduct and significant sums of money at stake. The court granted the applicant's application for a freezing order, preventing the respondent from disposing of certain assets pending the final determination of the case. This decision ensures that the applicant will not be left without a remedy if they succeed in their claims against the respondent.

Orders