FE Accommodation Pty Ltd v Gold Valley Iron Ore Pty Ltd - [2021] NTSC 85

CITATION:FE Accommodation Pty Ltd & Anor v Gold Valley Iron Ore Pty Ltd [2021] NTSC 85
PARTIES:FE ACCOMMODATION PTY LTD (ACN 160 943 082)
and

G&C PASTORAL CO PTY LTD
(ACN 008 039 405)

v

GOLD VALLEY IRON ORE PTY LTD (ACN 618 094 634)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory Jurisdiction
FILE NO:21830728
DELIVERED:  4 November 2021
HEARING DATE:  15 October 2021
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CIVIL PROCEDURE – Interim preservation – Freezing orders – Requirements to be met before order made
Application for freezing order requiring that defendant not dispose of or deal with its Australian assets up to value of $5 million – Application for order that defendant keep the plaintiffs informed in writing of all its assets, including value, location and encumbrances – Plaintiffs already have judgment on liability with damages to be assessed – Plaintiffs must establish realistic prospect of succeeding in obtaining relief against the defendant – Plaintiffs’ prospects of receiving monies in mitigation properly taken into account – Risk of dissipation of assets if freezing order not made – Present value of defendant’s shareholding in third-party company adequate to meet danger that prospective judgment will be wholly or partly unsatisfied – Balance of convenience does not militate against the grant of injunction of that limited scope.
Supreme Court Rules 1987 (NT) O 37A
Banco de Portugal v Waterlow and Sons Ltd [1932] AC 452, Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, Deputy Commissioner of Taxation v Hua Wang Bank Berhad (2010) 273 ALR 194, Patterson v BTR Engineering (Aust) Ltd (1989) NSWLR 319, Pearce v Waterhouse [1986] VR 603, Pelechowski v Registrar, Court of Appeal (1998) 198 CLR 435, Taylor v Diamond Developments Pty Ltd (1997) 6 NTLR 164, referred to.
REPRESENTATION:
Counsel:
Plaintiffs:  A Harris QC with B Raumteen
Defendant:A Wyvill SC with T Silvester
Solicitors:
Plaintiffs:Maher Raumteen Solicitors
Defendant:  HWL Ebsworth Lawyers
Judgment category classification:     B
Judgment ID Number:  Gra2119
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
FE Accommodation Pty Ltd & Anor v Gold Valley
Iron Ore Pty Ltd [2021] NTSC 85
No 21830728

BETWEEN:

FE ACCOMMODATION PTY LTD (ACN 160 943 082)
First Plaintiff

AND:

G&C PASTORAL CO PTY LTD (ACN 008 039 405)
Second Plaintiff

AND:

GOLD VALLEY IRON ORE PTY LTD (ACN 618 094 634)
Defendant

CORAM: GRANT CJ
REASONS FOR DECISION
(Delivered 4 November 2021)

The plaintiffs have made an application for a freezing order against the defendant pursuant to Order 37A of the Supreme Court Rules 1987 (NT). By way of broad summary, the terms of the order sought would require that the defendant not dispose of or deal with its Australian assets up to the unencumbered value of $5 million; and that the defendant keep the plaintiffs informed in writing of all its assets, including their value, location and encumbrances.
The application is made following the delivery of 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 FE Accommodation Pty Ltd v Gold Valley Iron Ore Pty Ltd

Details

AGLC: FE Accommodation Pty Ltd v Gold Valley Iron Ore Pty Ltd [2021] NTSC 85
Case: [2021] NTSC 85
Decision Date: 4 November 2021

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, FE Accommodation Pty Ltd and G&C Pastoral Co Pty Ltd applied for a freezing order against Gold Valley Iron Ore Pty Ltd. The plaintiffs have already obtained a judgment on liability for the wrongful repudiation of a contract for the sale of a mining camp and related plant and equipment, with damages to be assessed. The application is made to prevent the defendant from disposing of or dealing with its Australian assets up to the value of $5 million and to require the defendant to keep the plaintiffs informed in writing of all its assets, including their value, location and encumbrances. The defendant has filed an application for special leave to bring an appeal from the judgment to the High Court. The court found that the plaintiffs must establish a realistic prospect of succeeding in obtaining relief against the defendant and that there must be a risk of dissipation of the assets if the order is not made. The balance of convenience must favour the grant of the injunction. The court found that the plaintiffs have already succeeded in obtaining judgment against the defendant and that the value of the defendant’s shareholding in FE Limited is adequate to meet the danger that the prospective judgment will be wholly or partly unsatisfied. The court made an order that the defendant must not, either itself or through its directors, officers, partners, employees, agents or others acting on its behalf, or on the instructions of any of them, remove from Australia or in any way dispose of, deal with or diminish the value of its unencumbered shareholding of 54,292,341 ordinary shares in FE Limited (ACN 112 731 638). The order does not prohibit the defendant from dealing with, disposing of or diminishing the value of any of its shareholding in FE Limited to the extent required by law. The undertakings as to damages given by the plaintiffs in the form filed on 20 August 2021 apply until the defendant is released from the order.

Orders