Gecko Australia Pty Ltd v Montagnese

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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

KTC v Singh [2018] NSWSC 1510

Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319

Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd [2021] FCA 585

Spotlight Pty Ltd v Mehta [2019] FCA 1796

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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Details
Case
[2022] FCA 488
Decision Date

CaseChat Overview and Summary

Gecko Australia Pty Ltd was the plaintiff in an application for a freezing order against several defendants, including Montagnese. The plaintiff sought to freeze the assets of the defendants to prevent dissipation of assets in the event of a successful claim. The case was heard in the Federal Court of Australia. The defendants opposed the application, arguing that the plaintiff had not established a good arguable case or shown a risk of dissipation of assets.

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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