Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (In Liq)

Duro Felguera Australia Pty Ltd sought an appeal against an order made by the Supreme Court of New South Wales, which granted Trans Global Projects Pty Ltd, in liquidation, an interim freezing order. The order was made to prevent the disposal of assets by the respondent company, which was part of a larger corporate group. The dispute arose from an international commercial arbitration where Duro Felguera Australia was the claimant, and Trans Global Projects was the respondent. The court was required to determine several legal issues, including whether it was appropriate to grant a freezing order when there were concurrent sources of power to do so, and whether it was open to the court to be satisfied of the danger that a prospective judgment would be unsatisfied. Additionally, the court had to consider whether the disposition of assets by a parent company to its subsidiary must be irregular and whether the respondent to a freezing order application must intend that their conduct will prevent the prospective judgment from being satisfied. Finally, the court needed to decide whether a freezing order should have been made operative until further order.

The court found that the granting of the freezing order was appropriate given the circumstances. The court recognised the concurrent sources of power to make such an order and determined that it was open to it to be satisfied of the danger that a prospective judgment would be unsatisfied. The court held that the disposition of assets by the parent company to its subsidiary did not necessarily have to be irregular, and that the respondent to a freezing order application did not have to intend that their conduct would prevent the prospective judgment from being satisfied. The court concluded that a freezing order should have been made operative until further order to ensure the preservation of assets in the context of the international commercial arbitration. The appeal was dismissed, and the freezing order remained in place.