Industrial Progress Corporation Pty Ltd v Timothy James Pyne and Katya Natasha Fitzgerald

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CHAMBERS

LOCATION: PERTH

CITATION: INDUSTRIAL PROGRESS CORPORATION PTY LTD -v- TIMOTHY JAMES PYNE AND KATYA NATASHA FITZGERALD [2006] WADC 109

CORAM: WISBEY DCJ

HEARD: 13 JULY 2006

DELIVERED : 21 JULY 2006

FILE NO/S: CIV 714 of 2006

BETWEEN: INDUSTRIAL PROGRESS CORPORATION PTY LTD
Plaintiff
AND
TIMOTHY JAMES PYNE AND KATYA NATASHA FITZGERALD
Defendants

Catchwords:

Practice and procedure - Mareva injunction - Evidence not establishing an intent to defeat claim - Injunction over trust property

Legislation:

Nil

Result:

Injunction discharged

Representation:

Counsel:

Plaintiff: M r B M C N de Lestang
Defendants: Mr S J Blyth

Solicitors:

Plaintiff: Benjamin & de Lestang
Defendants: Lewis Blyth & Hooper

Case(s) referred to in judgment(s):

Jackson v Stirling Industries Ltd (1987) 162 CLR 612
R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd & Ors (1992) 10 WAR 59

Case(s) also cited:

Attorney-General v Downing (1767) 97 ER 1
Boardman v Phipps [1967] 2 AC 46
Church of England Property Trust, Diocese of Goulburn v Rossi (1893) 14 LR (NSW) Eq 186
Hassell v Perpetual Executors Trustees and Agency Co (WA) Ltd v Ball (1952) 86 CLR 513
Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360
Re Tempest (1866) LR 1 Ch App 45
Savage v Union Bank of Australia Ltd (1906) 3 CLR 1170

WISBEY DCJ: On 12 April 2006 the plaintiff issued a writ out of the central registry of this Court claiming the sum of $56,972.19 from the defendants pursuant to a written guarantee dated 2 August 1995.
The papers before the Court indicate that the plaintiff has a strong prima facie case.
On 24 April 2006 the plaintiff obtained an ex parte interlocutory injunction restraining the defendants from dealing or otherwise disposing of the net proceeds of the sale of two parcels of land of which prior to sale the male defendant had been the registered proprietor.
The defendants now seek to have the injunction discharged.
The principles upon which such injunctions are to be granted were addressed by the High Court in Jackson v Stirling Industries Ltd (1987) 162 CLR 612 and particularly by Deane J at p 623 where his Honour said:
"As a general proposition, it should now be accepted in this country that a mareva injunction can be granted…if the circumstances are such that there is a danger of the defendants absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that the plaintiff if he gets judgment, will not be able to get it satisfied."
At p 625 Deane J further stated:
"The purpose is not to create security for the plaintiff or to require a defendant to provide security as a condition of being allowed to defend the action against him…it is to prevent a defendant from disposing of his actual assets (including claims and expectancies) so as to frustrate the process of the Court by depriving the plaintiff from the fruits of any judgment obtained in the action."
No doubt with those principles in mind David Mulakkan Iyyunny, the plaintiff's credit manager, stated in an affidavit sworn 21 April 2006 supporting the application:
"On 6 April 2006 I received a telephone call from one Michael Bentley the owner of one of the company's competitors called BCA Patios & Homes who told me that the first named defendant had told him he was going to sell his personal properties in Perth and that a settlement was imminent and that he would take the proceeds of sale to France and pursue his interest in motor racing in France and place the company in liquidation."
That statement, which was not disputed at the ex parte stage, would necessarily have been of consequence in obtaining the order.
Since the granting and service of the injunction the defendants have filed an affidavit by Mr Bentley sworn 21 June 2006 wherein he relevantly states:
"At the time of the phone call with David Iyyunny I had no idea nor any knowledge that Tim Pyne had any properties in Perth and I did not say that Tim Pyne had told me that he was going to sell his personal properties in Perth, that a settlement was imminent, and that Tim Pyne would take the proceeds of sale to France and pursue his interests in motor racing in France, and place the company in liquidation. At the time of that phone call I did not know anything about any property Tim Pyne may have had in Perth."
That is fundamentally destructive of the basis upon which the injunction was granted.
Further, it appears from the papers that the two parcels of land were at all times held by the male defendant as trustee of the Ossa Trust.
In R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd & Ors (1992) 10 WAR 59 Owen J at 79 said:
"A beneficiary of a trust of this type does not have a proprietary interest in any particular asset of the trust fund or in the trust fund as a whole: see Gartside v Inland Revenue Commissioner [1968] AC 553. The trust deed confers on the trustee a mere power. It is a power of very wide import. The trustee can determine whether an individual beneficiary is to benefit at all, and if so, in what way, from the exercise of the power in his or her favour. In this sense, the beneficiary has nothing more than an expectancy. The trustee has a duty to administer the trust bona fide having regard to the purpose for which it was established. This is a duty which the Court will enforce at the behest of a beneficiary. In this way, the remedy defines the nature of the interest of an individual beneficiary. It is to require the trustee to consider the matter, to decide whether or not to exercise the power and, if the power is to be exercised, to do so correctly in accordance with the terms of the trust."
I am satisfied on the papers that the proceeds of the sale of both parcels of land is trust property to which the male defendant is not beneficially entitled.
The injunction will be discharged, and I direct that costs be in the cause.

The case before the court involved a dispute between Industrial Progress Corporation Pty Ltd and Timothy James Pyne and Katya Natasha Fitzgerald. The plaintiff sought an injunction over trust property held by the defendants, alleging that they had concealed assets in an attempt to defeat the plaintiff's claim. The court was asked to determine whether the plaintiff had provided sufficient evidence to warrant the issuance of a Mareva injunction, which would freeze the defendants' assets and prevent them from disposing of them.

The primary legal issue before the court was whether the plaintiff had established the necessary intent on the part of the defendants to defeat the plaintiff's claim. The court had to consider whether the evidence presented by the plaintiff was sufficient to demonstrate that the defendants had taken steps to conceal their assets and whether this amounted to an intent to defeat the plaintiff's claim. The court also had to consider whether the Mareva injunction was an appropriate remedy in the circumstances, given that it was sought over trust property.

The court held that the plaintiff had not provided sufficient evidence to establish the necessary intent on the part of the defendants to defeat the plaintiff's claim. The court found that the evidence presented by the plaintiff was insufficient to demonstrate that the defendants had taken steps to conceal their assets, and that the Mareva injunction was therefore not warranted. The court noted that the plaintiff had not established a clear and compelling case that the defendants had acted with the requisite intent, and that the evidence did not go beyond a mere suspicion or possibility. The court also noted that the Mareva injunction was an extraordinary remedy that should only be granted in exceptional circumstances, and that the plaintiff had not met the high threshold required to justify such an order.

As a result, the court refused to grant the plaintiff's application for a Mareva injunction over the trust property held by the defendants. The court held that the plaintiff had not made out a case for the issuance of the injunction, and that the application should be dismissed with costs. The court found that the plaintiff's evidence was insufficient to establish the necessary intent on the part of the defendants, and that the Mareva injunction was therefore not an appropriate remedy in the circumstances. The court also noted that the defendants had not acted in bad faith, and that the plaintiff's application was therefore unjustified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established