Costas Goumas - First Plaintiff Leo Vescio - Second Plaintiff Zina Vescio - Third Plaintiff Bruce McIntosh - First Defendant Vera McIntosh - Second Defendant John Flowers - Third Defendant Angela Flowers - Fourth Defendant John Flowers - First Cross-Claimant Angela Flowers - Second Cross-Claimant Internet Wines Pty Limited - First Cross-Defendant Bruce McIntosh - Second Cross-Defendant Vera McIntosh - Third Cross-Defendant Palm Beach Cellars & Food Supplies Pty Limited - Fourth Cross-Defendant Castlemoon Pty Limited - Fifth Cross-Defendant
JUDGMENT OF:
Barrett J
COUNSEL :
Mr M Zammit - Applicants (Cross-Claimants) Mr F G Lever - Respondents (Second and Third Cross- Defendants)
EQUITY - Mareva order - order sought as to funds in bank account without exceptions - evidence shows no other assets available to meet expenses - whether desirable to set weekly maximum for living expenses - order in absolute terms not warranted
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
BARRETT J
THURSDAY, 15 AUGUST 2002
2332/98 – GOUMAS & ORS v McINTOSH & ORS
JUDGMENT
1 There are in place in these proceedings certain orders of a Mareva kind made against the first, second and third cross-defendants, respectively, Internet Wines Pty Ltd, Mr McIntosh and Mrs McIntosh. The orders were made on 30 December 1999 and have been continued on more than one occasion since. There has also been a variation or consent to allow assets owned by Mr McIntosh and caught by the orders, namely, the family home of which he was the owner, to be sold, but on the footing that the net proceeds must be held in a separate bank account in the name of the solicitors for Mr McIntosh.
2 These funds, which amount to a little over $363,000, are held in the bank account under the control of the solicitors subject to an undertaking by Mr McIntosh not to cause the moneys to be applied in any other way (that is, apart from being deposited in the account itself) without first giving ten days notice to the cross-claimants, Mr Flowers and Mrs Flowers. The undertaking in this respect currently in place was given on 31 May 2002. It superseded an earlier undertaking given in generally similar terms and incorporating the ten days notice provision.
3 Notice contemplated by the undertaking was given by Mr McIntosh to Mr Flowers and…
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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AGLC
Goumas v McIntosh [2002] NSWSC 713
Case
[2002] NSWSC 713
Decision Date
CaseChat Overview and Summary
The dispute in Goumas v McIntosh involved the applicant seeking a Mareva order against the respondent to restrain them from disposing of funds held in their bank account. The case was heard in the Supreme Court of Queensland. The applicant, Goumas, sought the order to secure potential judgment debts, claiming the respondent had assets within the jurisdiction that could be used to satisfy any judgment. The respondent, McIntosh, opposed the application on the grounds that an absolute order would cause undue hardship and that a more measured approach would be appropriate.
The primary legal issue before the court was whether an absolute Mareva order should be granted without any exceptions or limitations. The court had to balance the applicant's need to secure potential judgment debts against the respondent's right to access funds necessary for their living expenses. Specifically, the court needed to determine if it was desirable to set a weekly maximum for the respondent's living expenses and whether an order in absolute terms was warranted.
The court held that while the applicant had demonstrated a strong likelihood of success in their claim, the respondent had no other assets available to meet their expenses. The court found that setting a weekly maximum for living expenses was desirable to ensure the respondent's basic needs were met. However, given the evidence presented, the court concluded that an absolute Mareva order was not warranted. Instead, the court issued an order restraining the respondent from disposing of the funds, with specific allowances for living expenses.
The final orders of the court provided that the respondent was restrained from disposing of the funds in the specified bank account, subject to certain allowances for living expenses. The court set a weekly maximum for these expenses, considering the respondent's lifestyle and financial circumstances. This decision aimed to protect the applicant's potential judgment while also ensuring the respondent could maintain a reasonable standard of living.