Forsyth v Big Gold Corporation Ltd (No 2) - [2017] QSC 314

SUPREME COURT OF QUEENSLAND

CITATION:

Forsyth & Ors v Big Gold Corporation Ltd & Ors (No 2) [2017] QSC 314

PARTIES:

ALEXANDER CAMERON FORSYTH

(first plaintiff)
DAMIAN JOHN WATERS
(second plaintiff)
DAMIAN JOHN WATERS AND JACQUELINE MICHAELA WATERS AS TRUSTEES FOR THE WATERS SUPER FUND ABN 65 686 260 160
(third plaintiff)
v
BIG GOLD CORPORATION LTD
(HONG KONG COMPANY NUMBER 1690683)

(first defendant)
HUMANITERRA HOLDINGS LTD

(HONG KONG COMPANY NUMBER 1770920)

(second defendant)
INPOWERED PTY LTD ACN 130 062 538
(third defendant)
EMPROVE HOLDINGS PTY LTD ACN 130 063 900
(fourth defendant)
AMBITIOUS VENTURES PTY LTD ACN 152 931 756
(fifth defendant)
DENNIS KIM
(sixth defendant)
ANN-MARIE LOVEL
(seventh defendant)
JAMES ANDREW LOVEL
(eighth defendant)
ANDREW DAVID GRGURIC
(ninth defendant)
PETER DELANEY
(tenth defendant)

FILE NO/S:

No 9817 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

DELIVERED ON:

15 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Davis J

ORDER:

The application is dismissed.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – INJUNCTIONS TO PRESERVE STATUS QUO OR PROPERTY PENDING DETERMINATION OF RIGHTS – MAREVA INJUNCTION – RELEVANT CONSIDERATIONS – where the defendants recently had Mareva-type freezing orders varied to allow for sale of property to fund defence of the proprietary claim to that property made by the plaintiffs – where the defendants apply for that variation to be amended to allow for further funds in their favour – where the defendants lead fresh evidence to the end that their costs were higher than previously understood – whether the order varying the freezing orders should be amended to provide for further use of the funds by the defendants

PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS – DETENTION, INSPECTION AND PRESERVATION – FREEZING ORDERS – where the defendants recently had Mareva-type freezing orders varied to allow for sale of property to fund defence of the proprietary claim to that property made by the plaintiffs – where the defendants apply for that variation to be amended to allow for further funds in their favour – where the defendants lead fresh evidence to the end that their costs were higher than previously understood – whether the order varying the freezing orders should be amended to provide for further use of the funds by the defendants

Australian Receivables Ltd v Tekitu Pty Ltd [2008] NSWSC 433, cited
Forsyth & Ors v Big Gold Corporation Ltd & Ors [2017] QSC 277
Harrison Partners Constructions Pty Ltd v Jevena Pty Ltd [2006] NSWSC 317, cited

Virgtel v Zabusky [2008] QSC 316, cited

COUNSEL:

J W Peden QC for the plaintiffs

M Trim for the third, fourth, fifth and eighth defendants

SOLICITORS:

Colin Biggers & Paisley Pty Ltd for the plaintiffs

McCullough Robertson Lawyers for the third, fourth, fifth and eighth defendants

On 23 November 2017, I varied orders[1] made by the Chief Justice on 12 October 2016 (the original orders). The original orders restrained the third, fourth, fifth and eighth…

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.

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Details

Case: [2017] QSC 314
Decision Date: 15 December 2017

CaseChat Overview and Summary

Forsyth v Big Gold Corporation Ltd (No 2) involved the plaintiffs, Forsyth, seeking an injunction against the defendants, Big Gold Corporation Ltd, to preserve the status quo of certain property pending the determination of their proprietary rights. The case was heard in the Federal Court of Australia. The primary dispute centred around the defendants' application to vary an earlier Mareva-type freezing order, which had been modified to permit the sale of specific property to fund their defence against the plaintiffs' proprietary claim. The defendants now sought further amendment to the variation order, requesting additional funds to cover their defence costs, which they claimed were higher than initially estimated.

The legal issues before the court included whether the defendants' fresh evidence of increased costs justified amending the variation order to allow for the further use of the sale proceeds. The court had to consider the principles governing Mareva injunctions, the appropriateness of varying such orders, and the necessity of equitable relief to maintain the status quo. Additionally, the court needed to assess the merits of the defendants' new evidence and its impact on their ability to defend the proprietary claim.

The court, in dismissing the application, held that the defendants had not provided sufficient grounds to justify amending the variation order. It found that the defendants' evidence, while indicating higher costs, did not demonstrate a compelling need for additional funds beyond what was already provided. The court emphasised the importance of maintaining the status quo and ensuring that the proprietary dispute did not unduly prejudice either party. Given the existing resources available to the defendants and the lack of compelling new evidence, the court concluded that further amendment to the variation order was unwarranted.

In its decision, the court dismissed the application, affirming that the existing variation order remained in place without amendment. This outcome preserved the equitable balance sought in the original injunction and ensured that the proprietary dispute would not be prejudiced by unnecessary financial fluctuations.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Forsyth & Ors v Big Gold Corporation Ltd & Ors (No 2) [2017] QSC 314
PARTIES:	ALEXANDER CAMERON FORSYTH (first plaintiff) DAMIAN JOHN WATERS (second plaintiff) DAMIAN JOHN WATERS AND JACQUELINE MICHAELA WATERS AS TRUSTEES FOR THE WATERS SUPER FUND ABN 65 686 260 160 (third plaintiff) v BIG GOLD CORPORATION LTD (HONG KONG COMPANY NUMBER 1690683) (first defendant) HUMANITERRA HOLDINGS LTD (HONG KONG COMPANY NUMBER 1770920) (second defendant) INPOWERED PTY LTD ACN 130 062 538 (third defendant) EMPROVE HOLDINGS PTY LTD ACN 130 063 900 (fourth defendant) AMBITIOUS VENTURES PTY LTD ACN 152 931 756 (fifth defendant) DENNIS KIM (sixth defendant) ANN-MARIE LOVEL (seventh defendant) JAMES ANDREW LOVEL (eighth defendant) ANDREW DAVID GRGURIC (ninth defendant) PETER DELANEY (tenth defendant)
FILE NO/S:	No 9817 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application on the papers
DELIVERED ON:	15 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Davis J
ORDER:	The application is dismissed.
CATCHWORDS:	EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – INJUNCTIONS TO PRESERVE STATUS QUO OR PROPERTY PENDING DETERMINATION OF RIGHTS – MAREVA INJUNCTION – RELEVANT CONSIDERATIONS – where the defendants recently had Mareva-type freezing orders varied to allow for sale of property to fund defence of the proprietary claim to that property made by the plaintiffs – where the defendants apply for that variation to be amended to allow for further funds in their favour – where the defendants lead fresh evidence to the end that their costs were higher than previously understood – whether the order varying the freezing orders should be amended to provide for further use of the funds by the defendants PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS – DETENTION, INSPECTION AND PRESERVATION – FREEZING ORDERS – where the defendants recently had Mareva-type freezing orders varied to allow for sale of property to fund defence of the proprietary claim to that property made by the plaintiffs – where the defendants apply for that variation to be amended to allow for further funds in their favour – where the defendants lead fresh evidence to the end that their costs were higher than previously understood – whether the order varying the freezing orders should be amended to provide for further use of the funds by the defendants Australian Receivables Ltd v Tekitu Pty Ltd [2008] NSWSC 433, cited Forsyth & Ors v Big Gold Corporation Ltd & Ors [2017] QSC 277 Harrison Partners Constructions Pty Ltd v Jevena Pty Ltd [2006] NSWSC 317, cited Virgtel v Zabusky [2008] QSC 316, cited
COUNSEL:	J W Peden QC for the plaintiffs M Trim for the third, fourth, fifth and eighth defendants
SOLICITORS:	Colin Biggers & Paisley Pty Ltd for the plaintiffs McCullough Robertson Lawyers for the third, fourth, fifth and eighth defendants