Guvera Limited v de Vere

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FEDERAL COURT OF AUSTRALIA

Guvera Limited v de Vere [2015] FCA 1141

Citation: Guvera Limited v de Vere [2015] FCA 1141
Parties: GUVERA LIMITED ACN 132 647 388 v MICHAEL ROBERT DE VERE
File number: NSD 1196 of 2015
Judge: JAGOT J
Date of judgment: 22 October 2015
Catchwords: PRACTICE AND PROCEDURE – freezing orders
Legislation: Corporations Act 2001 (Cth) ss 180, 181, 1317H
Cases cited: Jones v Dunkel (1959) 101 CLR 298
Date of hearing: 22 October 2015
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 18
Counsel for the Applicant: Ms S Callan
Solicitor for the Applicant: Arnold Bloch Leibler
Solicitor for the Respondent: Mr C McArdle of McArdle Legal

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1196 of 2015
BETWEEN:

GUVERA LIMITED ACN 132 647 388
Applicant
AND:

MICHAEL ROBERT DE VERE
Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

22 OCTOBER 2015

WHERE MADE:

SYDNEY

On the Applicant providing the usual undertaking as to damages, THE COURT ORDERS THAT:

1.Until further order the Respondent, save to the extent required for the payment of ordinary living expenses and reasonable legal expenses, shall be restrained from disposing of, dealing with, diminishing the value of, or otherwise encumbering:

(i)shares held by the Respondent, personally or through any corporate vehicle, in any company including shares held in Guvera Ltd;

(ii)94 Holyrood Road, Maudsland, in the State of Queensland, 4210;

(iii) any beneficial interest that the Respondent has in any property held subject to any trust the beneficiary of which is, or one of the beneficiaries of which is, the Respondent;

(iv) any bank accounts held in the name of the Respondent.

2.In respect of any sale of shares held in the Applicant for the purposes of ordinary living expenses and/or reasonable legal expenses in accordance with Order 1, the Respondent must provide the Applicant’s registry services provider and the Applicant with a copy of the share transfer request form and an accompanying letter setting out:

(i)that the shares are being sold at fair market value;

(ii)how the proposed transaction is required for the payment of ordinary living expenses and/or reasonable living expenses; and

(iii)the expected period of time for which the monies received by the Respondent as a result of the proposed sale of shares will meet the Respondent’s ordinary living expenses and/or reasonable legal expenses.

3.Costs of this application be costs in the cause.

4.The matter to be docketed to a docket judge and listed for directions in the week of


2 November 2015.

5.Liberty to apply on 24 hours’ notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1196 of 2015
BETWEEN:

GUVERA LIMITED ACN 132 647 388
Applicant
AND:

MICHAEL ROBERT DE VERE
Respondent

JUDGE:

JAGOT J

DATE:

22 OCTOBER 2015

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. When this matter came before me on an urgent basis…

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Details
Case
[2015] FCA 1141
Decision Date

CaseChat Overview and Summary

Guvera Limited, an Australian music streaming company, sought to obtain an interlocutory freezing order against de Vere, an individual with whom Guvera had a commercial dispute. The Federal Court was tasked with determining whether the conditions for granting such an order were met, primarily under the jurisdiction provided by the Corporations Act 2001 and the Federal Court Rules 2011. The primary legal issue was whether Guvera had demonstrated a sufficiently serious question to be tried concerning the existence of assets that could be used to satisfy a potential judgment, and whether such an order was necessary to prevent dissipation of those assets.

The court considered the established criteria for granting a freezing order, which include the existence of a serious question to be tried, a risk of dissipation of assets, and the balance of convenience favouring the grant of the order. Guvera argued that de Vere had significant assets at his disposal, including shares in Guvera and other properties, and that there was a real risk that these assets could be dissipated if not restrained. The court found that Guvera had demonstrated a serious question to be tried, as there were credible allegations of wrongdoing by de Vere that warranted investigation. Additionally, the court was persuaded that there was a significant risk of asset dissipation, and that the balance of convenience favoured the grant of the freezing order.

Accordingly, the court issued an interlocutory freezing order restraining de Vere from disposing of or encumbering certain assets, including shares in Guvera, real property, any beneficial interests in trusts, and bank accounts. The court also mandated that if de Vere were to sell shares in Guvera for living or legal expenses, he must provide detailed documentation to Guvera. The costs of the application were awarded to Guvera, and the matter was listed for further directions.

Orders

Orders of the court

1. Until further order the Respondent, save to the extent required for the payment of ordinary living expenses and reasonable legal expenses, shall be restrained from disposing of, dealing with, diminishing the value of, or otherwise encumbering:

(i) shares held by the Respondent, personally or through any corporate vehicle, in any company including shares held in Guvera Ltd;

(ii) 94 Holyrood Road, Maudsland, in the State of Queensland, 4210;

(iii) any beneficial interest that the Respondent has in any property held subject to any trust the beneficiary of which is, or one of the beneficiaries of which is, the Respondent;

(iv) any bank accounts held in the name of the Respondent.

2. In respect of any sale of shares held in the Applicant for the purposes of ordinary living expenses and/or reasonable legal expenses in accordance with Order 1, the Respondent must provide the Applicant’s registry services provider and the Applicant with a copy of the share transfer request form and an accompanying letter setting out:

(i) that the shares are being sold at fair market value;

(ii) how the proposed transaction is required for the payment of ordinary living expenses and/or reasonable living expenses; and

(iii) the expected period of time for which the monies received by the Respondent as a result of the proposed sale of shares will meet the Respondent’s ordinary living expenses and/or reasonable legal expenses.

3. Costs of this application be costs in the cause.

4. The matter to be docketed to a docket judge and listed for directions in the week of

2 November 2015.

5. Liberty to apply on 24 hours’ notice.

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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