FEDERAL COURT OF AUSTRALIA
Gecko Australia Pty Ltd v Montagnese [2022] FCA 488
File number: VID 597 of 2021 Judgment of: MOSHINSKY J Date of judgment: 26 April 2022 Catchwords: PRACTICE AND PROCEDURE – application for freezing order – whether the plaintiffs had shown a good arguable case – whether the plaintiffs had shown a risk of dissipation of assets – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth), s 23
Federal Court Rules 2011, rr 7.32, 7.33, 7.35
Cases cited: Basi v Namitha Nakul Pty Ltd [2019] FCA 743
Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2012] FCA 746
Hurst, in the matter of Lloyds Curry Shop Pty Ltd (in liq) v Prasad [2021] FCA 1562
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 39 Date of hearing: 22 April 2022 Counsel for the Plaintiffs: Dr O Bigos QC with Mr H Hill-Smith Solicitor for the Plaintiffs: HWL Ebsworth Lawyers Counsel for the Defendants: Mr PG Liondas Solicitor for the Defendants: King & Wood Mallesons ORDERS
VID 597 of 2021 BETWEEN: GECKO AUSTRALIA PTY LTD (ACN 614 157 443)
First Plaintiff
NEW AGE GROUP HOLDINGS PTY LTD (ACN 604 296 102)
Second Plaintiff
NEW AGE CARAVANS PTY LTD (ACN 112 877 139)
Third Plaintiff
AND: GABRIELLE MONTAGNESE
First Defendant
G MONTAGNESE NOMINEES PTY LTD (ACN 601 854 488) (IN ITS OWN CAPACITY AND AS BARE TRUSTEE FOR GABRIELLE MONTAGNESE)
Second Defendant
ROBERT ANDREW GRIFFITHS (and others named in the Schedule)
Third Defendant
AND BETWEEN: GABRIELLE MONTAGNESE (and others named in the Schedule)
First Cross-Claimant
AND: GECKO AUSTRALIA PTY LTD (ACN 614 157 443)
Cross-Respondent
ORDER MADE BY:
MOSHINSKY J
DATE OF ORDER:
26 APRIL 2022
THE COURT ORDERS THAT:
Interlocutory application
1.The plaintiffs’ interlocutory application dated 25 March 2022 be dismissed.
2.The plaintiffs pay the first, second, fourth and fifth defendants’ costs of the interlocutory application.
Pleadings
3.By 4.00 pm on 6 May 2022:
(a)the plaintiffs provide a response to the request for further and better particulars of the statement of claim (set out in the letter of 28 March 2022 at pages 6 to 11 of Annexure DMG-1 to the affidavit of Domenic Mathew Gatto affirmed 5 April 2022);
(b)the plaintiffs file and serve any reply;
(c)the cross-respondent file and serve its defence to cross-claim; and
(d)the plaintiffs serve any request for further and better particulars of the defence and cross-claim.
4.The defendants provide the plaintiffs with access to the virtual data room, by way of advance discovery, within 7 days of this order.
Discovery and subpoenas
5.By 4.00 pm on 20 May 2022:
(a)the parties exchange proposed categories for discovery; and
(b)the parties…
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- Case
- [2022] FCA 488
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the plaintiff had established a good arguable case for the relief sought and whether there was a real risk that the defendants would dissipate their assets. The court examined the evidence presented by the plaintiff and found that it did not establish a good arguable case for the relief sought. The court also found that the plaintiff had not shown a real risk that the defendants would dissipate their assets.
Accordingly, the court dismissed the plaintiff's interlocutory application for a freezing order. The plaintiff was ordered to pay the costs of the first, second, fourth and fifth defendants' costs of the interlocutory application. The court also made orders relating to further particulars, discovery, and case management. The proceeding was listed for a case management hearing to determine any disputes in relation to discovery, and the parties were required to make discovery of documents by a specified date. Costs otherwise were reserved.
Orders
Orders of the court
Interlocutory application
1. The plaintiffs’ interlocutory application dated 25 March 2022 be dismissed.
2. The plaintiffs pay the first, second, fourth and fifth defendants’ costs of the interlocutory application.
Pleadings
3. By 4.00 pm on 6 May 2022:
(a) the plaintiffs provide a response to the request for further and better particulars of the statement of claim (set out in the letter of 28 March 2022 at pages 6 to 11 of Annexure DMG-1 to the affidavit of Domenic Mathew Gatto affirmed 5 April 2022);
(b) the plaintiffs file and serve any reply;
(c) the cross-respondent file and serve its defence to cross-claim; and
(d) the plaintiffs serve any request for further and better particulars of the defence and cross-claim.
4. The defendants provide the plaintiffs with access to the virtual data room, by way of advance discovery, within 7 days of this order.
Discovery and subpoenas
5. By 4.00 pm on 20 May 2022:
(a) the parties exchange proposed categories for discovery; and
(b) the parties apply for leave to issue any subpoena.
6. By 4.00 pm on 3 June 2022, the parties confirm with one another whether they agree with each of the categories for discovery proposed by the other side and, if they dispute a particular category (Disputed Category), explain the basis for their objection to each Disputed Category.
7. By 4.00 pm on 10 June 2022, the parties confirm with one another whether they press for each Disputed Category, or an amended category, and if so explain their position in response to the objection to that category.
8. The proceeding be listed for a case management hearing at 9.30 am on 28 June 2022, to determine inter alia any disputes in relation to discovery.
9. By 15 July 2022, the parties make discovery of documents pursuant to the categories agreed or ordered by the Court.
10. Costs otherwise be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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