Kocsardi, K. v Elegant Tiles P/L - [1993] FCA 412

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JUDGMENT NO. ....m.w .o-"-wo-*

IN THE FEDERAL COURT OF AUSTRALIA ) NO. QG 67 of 1993

QUEENSLAND DISTRICT REGISTRY 1
GENERAL DIVISION 1

BETWEEN: KAROLY KOCSARDI
Applicant

AND : ELEGANT TILES PTY. LTD.
A.C.N. 057 256 641
First Respondent

AND : PORSAN AUSTRALIA PTY. LTD.
A.C.N. 056 107 192
Second Respondent

AND: NATIONAL AUSTRALIA BANK LTD.
Third Respondent

AND : EDWARD MORALES & PEDRO TEJERO MORALES
Fourth Respondent
AND : ELEGANT PORCELAIN PTY. LTD.
A.C.N. 057 050 218
Fifth Respondent

AND : ELEGANT MARBLE & GRANITES PTY. LTD.
A.C.N. 057 284 992
Sixth Respondent

whatsoever with any of its assets.
MINUTES OF ORDERS

2 3 JUN 1993

JUDGE MAKING ORDER: Drummond J
DATE OF ORDER:

17 May, 1993 AUSTRALIA PRINCIPAL

WHERE MADE: Brisbane REGISTRY

UPON the applicant by its counsel giving the usual undertaking as to damages THE COURT ORDERS THAT:

The first respondent, by itself its servants or agents, be restrained from dealing in any manner
The fourth respondents, by themselves their servants or agents, be restrained from dealing in any manner whatsoever with any of their assets.
The fifth respondent, by itself its servants or agents, be restrained from dealing in any manner whatsoever with any of its assets.
The sixth respondent, by itself its servants or agents, be restrained from dealing in any manner whatsoever with any of its assets.
The first, fourth, fifth and sixth respondents have liberty to apply on notice to the solicitor for the applicant to vary or discharge the above orders.
The third respondent forthwith allow the applicant to inspect and take copies (at the applicant's expense) of such documents held by the third respondent as relate to the affairs, assets or liabilities of any of the fourth, fifth or sixth respondents.

7. The third respondent has liberty to apply on oral notice to the solicitors for the applicant for an order varying or discharging order 6.

The first and fourth respondents pay the applicant's costs of and incidental to the application for interlocutory relief to be taxed.

9. The fifth and sixth respondents pay the applicant's costs of today.

THE COURT DIRECTS THAT:

Messrs. Clayton Utz have leave under 0. 45, r. 7(3)

The second respondent has liberty to apply, if it is to withdraw as the solicitors on the record for the first and fourth respondents. so advised, for an order that the first and fourth respondents pay its costs of the application on Friday, 14 May, 1993.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 67 of 1993

QUEENSLAND DISTRICT REGISTRY 1
GENERAL DIVISION 1

BETWEEN: KAROLY KOCSARDI
Applicant

AND : ELEGANT TILES PTY. LTD.
A.C.N. 057 256 641
First Respondent

AND: PORSAN AUSTRALIA PTY. LTD.
A.C.N. 056 107 192
Second Respondent

AND: NATIONAL AUSTRALIA BANK LTD.
Third Respondent

AND: EDWARD MORALES h PEDRO TEJERO MORALES
Fourth Respondent
AND : ELEGANT PORCELAIN PTY. LTD.
A.C.N. 057 050 218

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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Details

Case: [1993] FCA 412
Decision Date: 17 May 1993

CaseChat Overview and Summary

The Federal Court of Australia was presented with a case involving Karoly Kocsardi, who sought an interlocutory injunction against several respondents, including Elegant Tiles Pty. Ltd., Porsan Australia Pty. Ltd., National Australia Bank Ltd., Edward Morales, Pedro Tejero Morales, Elegant Porcelain Pty. Ltd., and Elegant Marble & Granites Pty. Ltd. Kocsardi alleged that the respondents had engaged in fraudulent activities and sought to prevent them from disposing of their assets.

The primary legal issue before the court was whether the applicant, Kocsardi, was entitled to interlocutory relief, including a Mareva injunction, to prevent the respondents from dissipating their assets before the final determination of the case. The court needed to decide whether the applicant's claims were sufficiently strong to warrant such relief and whether the balance of convenience favoured granting the injunctions.

The court found that the applicant had a strong case for interlocutory relief. The evidence suggested that the funds in question had been dissipated by the first respondent, likely to the fifth and sixth respondents, raising a significant risk that the applicant's claim would be irretrievably lost if not protected. The court noted the extraordinary circumstances surrounding the respondents' dealings with various solicitors, which further supported the need for protection. Given these factors, the court decided to grant the requested Mareva injunctions against all respondents, prohibiting them from dealing with their assets in any manner until the trial. The court also granted leave to the third respondent to inspect specific documents relating to the affairs of the fourth, fifth, and sixth respondents. Additionally, the court allowed the applicant to tax the costs incurred by the first and fourth respondents due to the procedural circumstances of the case.

The final orders included restraining the first, fourth, fifth, and sixth respondents from dealing with their assets, allowing the third respondent to inspect certain documents, and directing the first and fourth respondents to pay the applicant's costs of the application. The court emphasized that the respondents had liberty to apply to vary or discharge the injunctions.

Orders