Everhard Industries Pty Ltd v. Ross

Everhard Industries Pty Ltd, the plaintiff, brought an application against John and Elizabeth Ross, former employees, and Waste Water Equipment Supplies Pty Ltd, a company for which the Rosses now work, for an injunction under rule 260 of the Uniform Civil Procedure Rules. The plaintiff claims that the Rosses breached their fiduciary duties as employees by engaging in activities that competed with the plaintiff's business and misappropriated its business opportunities. The plaintiff seeks an accounting of profits, compensation for loss and damages, and an order preventing the Rosses from disposing of their assets.

The primary legal issue before the court was whether it had jurisdiction to grant the Mareva order despite the deficiencies in the supporting affidavits. The court considered whether the deficiencies in the affidavits meant that the court lacked jurisdiction to grant the order. The court also considered whether the order would be oppressive to the defendants and their new business, Eco Water Pty Ltd.

The court held that it had jurisdiction to grant the order despite the deficiencies in the affidavits. The court found that the supporting material before it, including the evidence of the Rosses' involvement with the third defendant, was sufficient to establish a prima facie case for an account of profits. The court also held that the order would not be oppressive to the defendants or their new business, provided that the Rosses remained the sole shareholders and non-trade creditors of Eco Water Pty Ltd. The court made some amendments to the order to clarify that the restraint applied to the defendants' assets with an aggregate realisable net value of $750,000, and that the defendants had to provide a copy of any genuine contract of sale already entered into to the plaintiff's solicitors.

The court made an order that the defendants were restrained from removing any of their assets from Australia or disposing of, selling, transferring, mortgaging, encumbering or otherwise dealing with any of their assets, except for certain specified purposes. The order also required the defendants to keep accurate records of their assets and provide an affidavit listing their assets to the plaintiff's solicitors. The order was limited to assets with an aggregate realisable net value of $750,000, unless the plaintiff could show that its monetary claim exceeded that amount. The order also provided that Eco Water Pty Ltd could trade provided that the Rosses remained the sole shareholders and non-trade creditors of it.