Gross v South Pacific Premier Projects Pty Ltd

[2003] VSC 5

SUPREME COURT OF VICTORIA AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT

No. 6099 of 1997

ELIZABETH MARIA GROSS AND SALVUS QUEN NOMINEES PTY LTD (ACN 005 568 990)	Plaintiffs
	v.
SOUTH PACIFIC PREMIER PROJECTS PTY LTD AND ORS	Defendants

AND BETWEEN

SOUTH PACIFIC PREMIER PROJECTS PTY LTD
	Plaintiff by Counterclaim
v.
ELIZABETH MARIA GROSS AND SALVUS QUEN NOMINEES PTY LTD AND ORS (ACN 005 568 990)	Defendants by Counterclaim

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JUDGE:	ASHLEY, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2003
DATE OF JUDGMENT:	5 February 2003
MEDIUM NEUTRAL CITATION:	[2003] VSC 5

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Mareva order – non parties – real property arguably available to meet a successful counter-claim – counterclaim of apparent substance – risk of disposition of property.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff  by counter-claim	Mr J R. Dixon	Duffy & Simon

HIS HONOUR:

1. This is an application for a Mareva order brought by the plaintiff by counterclaim.  The order is sought in respect of two parcels of real property.  The registered proprietor of one of them is Ruelle Nominees Pty Ltd.  The registered proprietor of the other is Mulnot Pty Ltd. 

1. The counterclaim is a money claim for $1.25 million together with interest.  The counter-claimant says that the money due is in large part merely in consequence of an agreement made in 1996.  The material before me suggests that the claim is one of substance.

1. The essence of the present application is that the two parcels of real property, which were previously owned by Salvus Quen Pty Ltd, one of the plaintiffs, were disposed of in 1997 and 2000 at substantial under-values to the present registered proprietors, those registered proprietors having a connection both with the first plaintiff, Elizabeth Gross, and with her brother, Rudi de Jong.  The counter-claimant adduced evidence that if the counterclaim succeeded it would have no ability to recover judgment against Mrs Gross, for she has divested herself of the means to meet any such judgment.  It adduced evidence to similar effect in the case of Salvus Quen.  The only way in which that company could meet a judgment on the counterclaim, it appears, is if it were liquidated and the liquidator were able to set aside the sales of the two parcels of real property, as having been made at a time when the company was insolvent.

1. In my view a persuasive case has been made out on the material adduced that the sales were at an under-value;  and that there would be a significant prospect, if the counterclaim succeeded and Salvus Quen were liquidated, of the transactions being set aside and of the properties being available to meet the judgment on the counterclaim.

1. A pretty persuasive case has also been made out that Mrs Gross and Salvus Quen, probably at the instance or the direction of Mr de Jong, have made a substantial job over the years of divesting their assets;  and that, since a public examination of Mrs Gross in October 2002, there is the prospect that further steps might well be taken to get the properties out of reach. 

1. It is true that this application is late made.  That may be a reason for refusing relief in a particular case.  But the full detail of the transactions upon which the counter-claimant relies only became clear when the public examination was conducted.  It has been, I think, reasonable for the counter-claimant, albeit at a late stage, to seek the protection which it has sought by the application made today.

1. I will, then, make the orders sought by the counter-claimant.  I note that the orders as minuted are suitably endorsed under r. 66.10.  I note also that their effect is to bring the matter back before the court on 19 February.  In the event that either or both of the non-parties to whom this order is directed has reason why the orders should be discharged, they will have the opportunity of arguing the matter a fortnight from today.  It does not seem to me that inhibiting any possible conduct on their part for a fortnight is too big a burden to impose upon them. 

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