Glenella One Pty Ltd v Duncan (No 4)
[2015] NSWSC 1146
•10 August 2015
Supreme Court
New South Wales
Medium Neutral Citation: Glenella One Pty Ltd v Duncan (No 4) [2015] NSWSC 1146 Hearing dates: 10 August 2015 Decision date: 10 August 2015 Jurisdiction: Common Law Before: Button J Decision: See paragraphs 20 and 21.
Catchwords: PRACTICE AND PROCEDURE – application for continuation of ex parte injunction – dispute regarding appointment of trustee – continuation granted
COSTS – question of costs unable to be properly adjudicated until substantive question has been resolved – whether costs should be reservedCases Cited: Glenella One Pty Ltd v Duncan (No 3) [2015] NSWSC 1003 Category: Procedural and other rulings Parties: Glenella One Pty Ltd (Plaintiff)
Andrew David Duncan (First Defendant/Applicant)
Joanne Thomas (First Respondent)
Morten Weaver (Second Respondent)Representation: Counsel:
Solicitors:
G W McGrath (First Defendant/Applicant)
Owen Hodge Lawyers (First Defendant/Applicant)
Johnson Winter & Slattery Lawyers (Second Defendant)
Schofield King Lawyers Pty Ltd (First Respondent)
File Number(s): 2014/163175
ex tempore Judgment
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This is an application for continuation of what was an ex parte injunction that was granted by McCallum J on 21 July 2015. Reference should be made to her Honour's judgment of that date: Glenella One Pty Ltd v Duncan (No 3) [2015] NSWSC 1003.
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All that is really sought today is that a number of aspects of those orders be continued; namely (if one refers to the orders made by her Honour on that day) that order 4(b)(i),(ii) and (iii) be continued, which is an order in the nature of an injunction restraining Ms Joanne Thomas and Mr Morton Weaver from doing a number of things.
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The next order that is sought today is order 6, which is simply that the costs of today be reserved. That is on the basis that it is said by senior counsel for the applicant that, in due course, the rights and wrongs of this entire dispute and, in particular, the necessity of obtaining the ex parte injunction in the first place and the necessity of coming to court today to continue it, will be resolved, and it will not be before then that the question of costs can be properly adjudicated.
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The third and final order that Mr McGrath of senior counsel seeks to continue is order 7, which is in the nature of the usual undertaking given by an applicant for an injunction.
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The background of the matter is rather convoluted. Indeed, the substantive proceedings in this Court, as I understand it, are proceedings for possession against Mr McGrath's client by a company. In a nutshell, it is said that there was a trust created pursuant to a trust deed of 18 February 2004. The trustee was a company called White Turtle. The trust was known as the Turtle Trust. Things became the subject of dispute when White Turtle went into liquidation, and was no longer able to act as the trustee pursuant to the deed.
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It is the position of Mr McGrath that there was a mechanism whereby Ms Duncan (who is the late sister of the applicant) and a Mr Weaver (who was her former romantic partner) were jointly to appoint a new trustee. But regrettably Ms Duncan is deceased, and it is said that Mr Weaver is bankrupt. Accordingly, the position of Mr McGrath is that there was no effective mechanism whereby a new trustee could be appointed.
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The allegation of Mr McGrath is that Mr Weaver purported to appoint Ms Thomas (with whom he is said to be in a new romantic relationship) as the trustee. The affidavit that was read today shows that, as soon as Mr McGrath's solicitors became aware of that, it was on the very same day that they applied for the injunction from her Honour.
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To conclude my very brief précis of my understanding of the background, Mr McGrath's position is that, at the least, one person has been engaged in serious wrongdoing.
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Mr McGrath's position is that it is soundly appropriate that, until all of this is resolved, the order that seeks to protect the trust should be maintained. Senior counsel has also submitted that the litigation is by no means grinding to a halt, quite the contrary: there are steps that will be taken quite soon in the Family Court of Australia, but they will take a little time; Mr McGrath's proposal is that the orders be continued until further order of this court.
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Mr Briggs who appeared at short notice, I infer, for White Turtle (which, as I have said, is in liquidation) neither consents to nor opposes anything that Mr McGrath has proposed. I understand his position to be: well, his client is content with whatever resolution of this is ultimately arrived at, in terms of this dispute.
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Mr Stewart has also appeared, on behalf of Ms Thomas. He has made it quite clear that his position is that she has done nothing wrong in the past, and she does not propose to do anything wrong in the future. She is quite content, without admissions, as it were, for the continuation of order 4(b).
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As well as that, Mr Stewart has made it quite clear that it could very well be that, when all of this is resolved, his client will submit that she should have her costs because, as I have said, her position is that she has engaged in no wrongdoing, and has never intended to do so, and will not do so.
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Mr Stewart has seen the force in Mr McGrath's position that it is simply impracticable for me to do anything other than reserve costs today, because to do otherwise would really involve me embarking upon a determination of the substantive question.
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Mr Stewart, of course, is content with the continuation of the usual undertaking, which is contained in order 7.
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Turning to my determination, I think that it is soundly appropriate that order 4(b) continue until all of these rather difficult factual contentions are resolved. I think there is force in Mr McGrath's assertion that it should not be a matter of the matter coming back to court every three or four weeks or so. That is inconvenient, and it is going to accrue further legal costs. So I am content with the proposal that 4(b) and the other orders continue until further order of this court.
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Because it is in the nature of an injunction, I would have thought that there should be liberty to apply to the parties on rather short notice, just in case anything arises urgently.
[SUBMISSIONS MADE]
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I think it is appropriate, having heard very briefly from the parties, that there be liberty to apply on two days’ notice.
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As well as that, I accept that it is appropriate that costs be reserved in the circumstances of this matter.
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Finally, I think there is no question of the injunction continuing without the undertaking continuing by way of order 7.
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It is for those reasons that I am prepared to make, in short:
An order that continues until further order of the court, order 4(b)(i), (ii) and (iii);
To be clear, I shall in due course make order 4(b) in the following terms, namely, an order that until further order of this court, each of the respondents, namely, Joanne Thomas and Morten Weaver, must not:
(i) act or purport to act as trustee or appointor of the trust established by deed dated 15 February 2004 known as the Turtle Trust,
(ii) remove from Australia or in any way dispose of, deal with or diminish the value of any of the assets of the Turtle Trust, and
(iii) must not dispose of, deal with or diminish the value of any of the assets of the Turtle Trust.
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Order 6, namely, that the costs of the application of today, 10 August 2015, are reserved; and,
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Finally, noting [in accordance with order 7] that the applicant continues his undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the order.
[DISCUSSION ENSUED]
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I have been reminded that, unless I am mistaken, I forgot to make the liberty to apply order. So that my fourth order will be:
(4) Liberty to apply to any party on two days’ notice to all other parties.
[DISCUSSION ENSUED]
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Just to be clear let me restate order 7. [Order 7 repeated].
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Decision last updated: 14 August 2015
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