FremantleMedia Ltd v Le - [2016] NSWSC 983

Supreme Court

New South Wales

Medium Neutral Citation: FremantleMedia Ltd v Le [2016] NSWSC 983
Hearing dates: 5 and 11 July 2016
Decision date: 12 July 2016
Jurisdiction: Equity - Duty List
Before: Stevenson J
Decision:
Disclosure requirement in freezing order varied

Catchwords: PROCEDURE – interlocutory orders – freezing order – variation of freezing order – where freezing order required disclosure of assets within Australia and world wide – where plaintiff proposes to commence proceedings against defendants in People’s Republic of China and if successful enforce judgment in Australia – where freezing order obtained on basis of concern that defendants will move or dispose of assets within Australia – whether freezing order should be varied to require disclosure only of Australian and not world wide assets – whether standard ancillary asset disclosure order requires disclosure of world wide assets
Legislation Cited: Practice Note SC Gen 14
Cases Cited: Deputy Commissioner of Taxation v Karas [2011] VSC 673
Category: Procedural and other rulings
Parties: FremantleMedia Ltd (Plaintiff)
Yu Le (also known as Le Yu) (First Defendant)
Gan Lu (also known as Lu Gan) (Second Defendant)
Representation:
Counsel:
D Sulan (Plaintiff)
D A Allen (Defendants)
Solicitors:
Baker & McKenzie (Plaintiff)
Wisdom Lawyers (Defendants)

File Number(s): SC 2016/196179

EX TEMPORE Judgment (REVISED)

On 28 June 2016, Rein J made an ex parte freezing order against the defendants, who I was told during argument I could refer to, without showing disrespect, as Mr and Mrs Yu.
Mr and Mrs Yu are husband and wife and reside in the People’s Republic of China. The effect of the freezing order is to restrain Mr and Mrs Yu from disposing of or dealing with or diminishing their assets in Australia up to an amount in the order of $1.7 million.
The freezing order was sought on the basis that the plaintiff, FremantleMedia Ltd will shortly commence proceedings against Mr and Mrs Yu and against First Elite Global Ltd (a company incorporated in the British Virgin Islands and in which Mr and Mrs Yu are equal shareholders and Mr Yu the sole director) in the People’s Court of the People’s Republic of China (“the PRC Court”) seeking damages in an amount equivalent to that figure.
Fremantle is incorporated in the United Kingdom and is the producer and distributor of television brands including titles such as “Got Talent” and “Idol”.
Mr Yu was the Managing Director, China of the relevant part of the Fremantle group of companies and was responsible for negotiating licences with various television broadcasters and production companies. Mr Yu’s role included sourcing potential clients in China for Fremantle, seeking to license Fremantle’s intellectual property rights for clients and negotiate commercial terms in respect of intellectual property rights.
In the proposed proceedings in the PRC Court, Fremantle will allege that Mr and Mrs Yu caused First Elite to act as an intermediary between Fremantle and various Chinese television and production interests and to misappropriate funds properly payable by those interests to Fremantle.
In an affidavit sworn in…

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: [2016] NSWSC 983
Decision Date: 12 July 2016

CaseChat Overview and Summary

The plaintiff, FremantleMedia Ltd, sought to vary an interlocutory freezing order obtained against the defendants, Le and others. The plaintiff had obtained the freezing order to prevent the defendants from disposing of or moving their assets within Australia. The plaintiff intended to commence proceedings against the defendants in the People’s Republic of China and, if successful, enforce the judgment in Australia. The freezing order required the defendants to disclose their assets within Australia and worldwide. The plaintiff applied to vary the freezing order to require disclosure of only Australian assets, arguing that the standard ancillary asset disclosure order required disclosure of worldwide assets, which was unnecessary in this case.

The court was required to consider whether the freezing order should be varied to require disclosure of only Australian assets. The court considered the principle that interlocutory orders should be tailored to the specific circumstances of the case. The court considered the plaintiff’s intention to commence proceedings in China and enforce any judgment in Australia. The court also considered the risk of the defendants disposing of or moving their assets within Australia. The court held that the freezing order should be varied to require disclosure of only Australian assets. The court held that the standard ancillary asset disclosure order required disclosure of worldwide assets, which was not necessary in this case.

The court held that the freezing order should be varied to require disclosure of only Australian assets. The court held that the plaintiff had demonstrated a sufficient risk that the defendants would dispose of or move their assets within Australia. The court held that the risk of the defendants disposing of or moving their assets worldwide was not sufficient to justify requiring disclosure of worldwide assets. The court held that the freezing order should be varied to require disclosure of only Australian assets. The court also held that the plaintiff was entitled to an ancillary asset disclosure order requiring disclosure of worldwide assets if the plaintiff commenced proceedings in China and obtained a judgment that was enforceable in Australia.

The court varied the freezing order to require disclosure of only Australian assets. The court also held that the plaintiff was entitled to an ancillary asset disclosure order requiring disclosure of worldwide assets if the plaintiff commenced proceedings in China and obtained a judgment that was enforceable in Australia.

Orders