Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd; Lewis v Lamb

[2005] NSWSC 1060

CITATION:	Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd; Lewis v Lamb [2005] NSWSC 1060
HEARING DATE(S):	13 October 2005
JUDGMENT DATE :	13 October 2005
JURISDICTION:	Equity Common Law
JUDGMENT OF:	Hamilton J
DECISION:	Further money released from Mareva restraint to meet costs of proceedings.

CATCHWORDS:	EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Need to fund litigation - Whether funds available to party from other sources.
CASES CITED:	Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2004] NSWSC 1238 Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2005] NSWSC 264
PARTIES:	3081/97 Peter Lawrence Lewis (P) Lamru Pty Ltd (Applicant) Kation Pty Ltd (Respondent) Brian Raymond Silvia (Liquidator) 1750/02 Lamru Pty Limited (P) Kation Pty Limited (D1) Peter Lawrence Lewis (D2) Mark Lewis (D3) Nortex Pty Ltd (In Liq) (D4) 10911/04 Peter Lawrence Lewis (P) Russell William Lamb (D)
FILE NUMBER(S):	SC 3081/97; 1750/02; 10911/04
COUNSEL:	N A Cotman SC and J T Johnson (P L Lewis & Kation P/L) S J Motbey (Lamru P/L & R W Lamb) V R W Gray (Liquidator & Nortex P/L)
SOLICITORS:	Kemp Strang (P L Lewis & Kation P/L) Lyons & Lyons (Lamru P/L & R W Lamb) Abbott Tout (Liquidator & Nortex P/L)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 13 OCTOBER 2005

3081/97 PETER LAWRENCE LEWIS v NORTEX PTY LIMITED (In Liq)
1750/02 LAMRU PTY LIMITED v KATION PTY LIMITED & ORS
10911/04 PETER LAWRENCE LEWIS v RUSSELL WILLIAM LAMB

JUDGMENT – Application for Release of Fees from Mareva Restraint and Extension of Stays (see T7727)

1 HIS HONOUR: This is an application for a further release, for the purpose of the payment of Mr Motbey’s fees, from the fund held under Mareva orders. Various releases have previously been made, the last on 5 August 2005. The amount now claimed is $28,115 and that is charged at the same rates as previous memoranda of fees. These reasons for judgment should be viewed in the light of earlier judgments on similar subject matter, including Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2004] NSWSC 1238 and Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2005] NSWSC 264.

2 Mr Ventry Gray, on behalf of the liquidator, has addressed me, expressing concern as to “where this matter is going” and the continuing expenditure of costs upon it in a situation where the potential fruits of the litigation have long since been eaten up. I share Mr Gray’s concern, but, if the parties insist on going on litigating these matters, there is nothing the Court can do about it except to go on determining them.

3 Mr Cotman, of Senior Counsel for the Lewis interests, has again on this occasion put that the business conducted by Ecodownunder Pty Ltd and its assets are an alternative source from which the litigation can be funded by Lamru. He points in particular to an increase in the shareholders’ equity in that company. But this increase in equity has been created by the reduction, probably by compromise rather than by payment, of an obligation to Mr Ower in New Zealand. In any event, this argument has been put before and rejected: see Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2004] NSWSC 1238 at [6]. The situation has not changed since that time. The profits of that business have continued to be very modest and cannot bear the expenses at the rate at which they are being incurred in this litigation, nor do I think it reasonable that that modest business should be destroyed by compulsion of the liquidation of its stock. I do not regard funds as reasonably available from that company to fund the litigation. I adhere to the view that I expressed in the judgment just cited.

4 I propose to make an order releasing the additional amount sought from the Mareva fund. There will be orders in accordance with the form of orders initialled by me and placed with the papers. The costs of the application are reserved.

…oOo…

5 The existing stays, both of various portions of the Equity litigation and also in Common Law proceedings 10911/04 concerning the operation of the registered New Zealand judgment, expire today and require to be extended if they are to continue to operate.

6 In relation to that, the frequent applications for extension of these stays have become a matter of great inconvenience. If these proceedings, despite the uneasiness raised by Mr Gray, continue, they are going to be before the Court on quite a number of further occasions, as they can only be worked through in accordance with the way they are conducted and in relation to the aspects that come before the Court from time to time. The inconvenience of finite stays has become an unacceptable additional feature of these proceedings.

7 The reason why stays or injunctions are continued to a finite date only is so as not to reverse the onus of proof when the question of their continuation next comes before the Court. I have formed the view, as I have said, that, on the one hand, the need constantly to renew them is a nuisance and a costly nuisance. On the other hand, the view that I have formed is that, when a serious question of the termination of these stays arises, it is very unlikely that that question will fall to be determined by reference to who bears the onus of proof, the person proposing continuation of the stays or the person proposing their dissolution. That being my view, the balance of convenience lies strongly in favour of continuing the stays until further order, and I propose to do so.

8 In both the Equity proceedings (3081/97 and 1750/02), and in the Common Law proceedings (10911/04), the existing stays are extended until the further order of the Court.

**********