Heidi Miller Investments Pty Ltd v McConkey and Wheeler

[2012] FMCA 803

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HEIDI MILLER INVESTMENTS PTY LTD v McCONKEY and WHEELER & ORS [2012] FMCA 803

PRACTICE AND PROCEDURE – Mareva-type injunctive order – ex parte extension and amendment.

Applicant: HEIDI MILLER INVESTMENTS PTY LIMITED

First Respondent: ADAM WILLIAM MCCONKEY AND LISA JOANNE WHEELER TRADING AS SOLID ROCKET ENGINEERING

Second Respondent: SOLID ROCKET ENGINEERING PTY LTD

Third Respondent: ADAM WILLIAM MCCONKEY

File Number: PEG 146 of 2012

Judgment of: Lindsay FM

Hearing date: 3 September 2012

Date of Last Submission: 3 September 2012

Delivered at: Perth

Delivered on: 3 September 2012

REPRESENTATION

Counsel for the Applicant: Mr A. Rowe

Solicitors for the Applicant: Rowe Bristol Lawyers

Counsel for the Respondents: No appearance (heard ex parte)

Solicitors for the Respondents: No appearance (heard ex parte)

ORDERS

1. There will be an order made in terms of the minute of order signed by me this day.

2. The applicant do forthwith serve the orders made this day upon each of the remaining respondents and upon the ANZ Bank.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 146 of 2012

HEIDI MILLER INVESTMENTS PTY LIMITED

Applicant

And

ADAM WILLIAM MCCONKEY AND LISA JOANNE WHEELER TRADING  AS SOLID ROCKET ENGINEERING

First Respondent

SOLID ROCKET ENGINEERING PTY LTD

Second Respondent

ADAM WILLIAM MCCONKEY

Third Respondent

REASONS FOR JUDGMENT

1. This is a matter that returns to the Court after Federal Magistrate Lucev made a series of Mareva injunctions relating to a bank account which was ostensibly a bank account into which money was paid for the purchase of a Shelby Mustang motor vehicle.  I have read the affidavit material that was before his Honour and I have read his Honour’s Reasons and clearly there were a number of matters which persuaded his Honour that it was appropriate to proceed to make the order ex parte.

2. There was a high degree of suspicion associated with the conduct of proceedings between the respondents and their ostensible American agent.  There was a high degree of suspicion associated with the nature of the email communication between the two, which, as his Honour noted, was suggestive of the recipient of the email communications in the United States being a fiction.  We know of the involvement of the police.  All of the circumstances identified by his Honour were really the classic kind of circumstances in which Courts find it is appropriate to make this kind of order for injunction and make it on an ex parte basis.

3. All that has happened since he made the order is that it has been served on the respondents.  They were obliged to file some responsive material.  They have not done that.  One of the respondents is now deceased, and if the affidavit material of the applicant is to be relied upon, it is the guiding hand of the enterprise of which the applicant complains who is now deceased.  That led to an administrative adjournment of the original return date, and there was an oversight in terms of extending the order during that subsequent adjournment.

4. Manifestly, in order to preserve the integrity of the whole purpose for which orders were made in the first instance it is appropriate to extend the orders and extend them on that ex parte basis and we are doing that, of course, upon the basis that the respondents will very shortly be given notice of the orders, and in any event the orders I make will have built into them an opportunity for the respondents, if so advised, to apply at short notice to set the orders aside.  So there will be no difficulty about making the order that is sought in relation to the extension of the orders.

5. The only other matter of substance agitated today is the change to the form of the order.  The order is highly specific in that it seeks to attach the balance in a particular ANZ Bank account.  The form of the order as originally drawn, and his Honour made orders in the form submitted by the applicant, had the unintended consequence of imposing upon the bank the need to make their own inquiries as to the sufficiencies of other assets of the respondents before the orders that related to them and to that account became operative, and clearly that is inappropriate.

6. It is oppressive as far as the bank is concerned.  It was not the intention of the order which, as I read his Honour’s reasons, was always to preserve within that bank account the identified sum of money.  The sum of money was, on the applicant’s case,  paid over for the purposes of the acquisition of this motor vehicle from the United States and not subsequently repaid. 

7. For those reasons it is appropriate to make that order which varies the substance of the orders in that specified manner.    It is appropriate to make them on an ex parte basis.  It is also appropriate to make the order extending the operation of the orders to the new adjourned date.

8. I so order.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date:  5 September 2012