Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd
[2005] FCA 240
•14 MARCH 2005
FEDERAL COURT OF AUSTRALIA
Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2005] FCA 240
LIFETIME INVESTMENTS LTD (A St Vincent and the Grenadines Company No 5479 IBC 2000) v COMMERCIAL (WORLDWIDE) FINANCIAL SERVICES PTY LTD AND WILLIAM DAVID WALLADER
NO QUD 60 OF 2005KIEFEL J
BRISBANE
14 MARCH 2005
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 60 OF 2005
BETWEEN:
LIFETIME INVESTMENTS LTD
(A St Vincent and the Grenadines Company No 5479 IBC 2000)
APPLICANTAND:
COMMERCIAL (WORLDWIDE) FINANCIAL SERVICES PTY LTD (ACN 053 354 706)
FIRST RESPONDENTWILLIAM DAVID WALLADER
SECOND RESPONDENTJUDGE:
KIEFEL J
DATE OF ORDER:
14 MARCH 2005
WHERE MADE:
BRISBANE
THE COURT ORDERS:
That upon the Applicant (and its Agent) by its Counsel undertaking;
A. To:(a)submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the court or as it may direct, to any person, whether or not a party, adversely affected by the operation of this Order or any continuation with or without variation thereof; and
(b)to pay the compensation referred to in (a) to the person there referred to.
B. To serve forthwith upon the execution of this Order on the Respondents:
(a)a copy of the application and motion filed herein 7 March 2005;
(b)a sealed copy of this Order;
(c)a copy of the affidavits filed herein of Joseph Severin (sworn 1 March 2005; filed 7 March 2005), Ece Mustafa-ey (sworn 4 March 2005; filed 7 March 2005) , Lisa Busch (sworn 2 March 2005;filed 7 March 2005), Lisa Busch (sworn 4 March 2005; filed 7 March 2005), Bruce James Alexander Virgo (sworn 4 March 2005; filed 7 March 2005), Heather Ruth Watson (sworn 4 March 2005; filed 7 March 2005), the undertaking by the Applicant (dated 25 Februry 2005 filed 7 March 2005), the undertaking by Australian Receivables Pty Ltd (dated 2 March 2005 filed 7 March 2005), and the further affidavits of Peter Vincent Mills (sworn 10 March 2005 and filed by leave 10 March 2005), David John Chatfield Edwards (sworn 10 march 2005 filed by leave 10 March 2005), the affidavit of Peter Vincent Mills (sworn 14 March 2005 and filed by leave 14 March 2005) and the reasons of this court dated 10 March 2005).
C.That upon the execution of this Order, a Supervising Solicitor (being a member of the firm of Supervising Solicitors referred to in paragraph 5 of this Order) will offer to, and will if requested, explain to the Respondents or their employees, servants, agents or other persons appearing to be in charge of the premises referred to in paragraph 2 of this Order upon whom this Order is served, the nature and effect of this Order and their right to seek and obtain legal advice before complying with this Order provided that such advice be obtained forthwith and in any event within one hour of service of this Order.
D.To use any documents or information disclosed or obtained as a result of this Order only for the purposes of this proceeding and not to use the documents or information for any other purpose whatsoever without further obtaining the leave of this court.
E.To procure that an independent firm of solicitors (‘Supervising Solicitors’) supervise the execution of this Order at the premises referred to in order 2 below.
F.AND the solicitors for the Applicant by its Counsel (being also their Counsel for this purpose) undertaking
(i)to deliver to this Court the originals of all documents and property obtained as a result of paragraphs 2 and 3 of this Order within two working days of their removal;
(ii)where ownership of any article obtained as a result of this Order is disputed, to deliver up such article to the custody of the solicitors acting on behalf of the Respondents within two working days of receipt of a written undertaking by such solicitors to retain the same in safe custody and to produce the same if required to the court.
THE COURT ORDERS THAT:
ANTON PILLER
1. The following orders are subject to the following restrictions:
(a) The Orders must be served by a Supervising Solicitor, and orders 2 and 3 must be carried out in his or her presence and under his or her supervision;
(b) At the time the Orders are served on a Respondent or the person in charge of the premises, a Supervising Solicitor will also serve a notice in the form attached;
(c) The Orders do not require the person served with the Orders to allow anyone to enter the premises who in the view of a Supervising Solicitor could gain commercially from anything he or she might read or see on the premises if the person served with the Orders objects;
(d) No items may be removed from the premises until a list of the items to be removed has been prepared, and a signed copy of the list has been supplied to the person served with the Orders, and he or she has been given a reasonable opportunity to check the list;
(e) Before permitting entry to the premises by any person other than the Supervising Solicitors and any accompanying female employee of their firm and two of the Applicant's representatives, the Respondents or any employee of them or any of them, or any other person appearing to be in control of the premises may:
(i) seek legal advice, and apply to the court to vary or discharge the Orders, provided he or she does so at once; and
(ii) gather together any documents he or she believes may be incriminating or privileged and hand them to a Supervising Solicitor for the Supervising Solicitor to assess whether they are incriminating or privileged as claimed. If the Supervising Solicitor concludes that any of the said documents may be incriminating or privileged documents or if there is any doubt as to their status the Supervising Solicitors shall exclude them from the search and shall retain any documents of doubtful status in their possession pending further order of the court.
While this is being done, entry to the premises by any person may be refused, and permission for the search to begin may be refused, for a short time (not to exceed one hour, unless a Supervising Solicitor agrees to a longer period). If any of the Respondents or their agents or servants wish to take legal advice and gathers documents as permitted, he or she shall first inform a Supervising Solicitor and shall keep him or her informed and further informed of the steps being taken.
2.Forthwith upon service of these orders the Respondents by themselves or servants, officers, employees, partners or agents or agents permit Peter Mills and/or solicitors employed by the firm Jones King lawyers and not more than two other persons holding Peter Mills’ written authority to enter each of the premises occupied by the Respondents whether as owner or under lease or licence secured at 4 Covey Street, Chermside, West Queensland, at any time between the hours of 10 a.m. and 5 p.m. on 11 March 2005 (or so soon thereafter) to:
(a) Search for and inspect copies of all original or copy documents including any computerised original or copy of the classes of documents enumerated in Schedule A hereto; and
(b) Remove into the custody of the Applicant's solicitors, Jones King lawyers, all such original or copy documents including any computerised original or copy thereof of the documents or classes of documents or equipment enumerated in Schedule A hereto.
3.The Respondents forthwith upon service of a sealed copy of this Order deliver up to the Applicants all originals and copies of the documents and classes of documents enumerated in Schedule A hereto.
4.Until 4:30 p.m. on the 16 March 2005 or further Order other than in compliance with paragraphs 2 and 3 hereof the Respondents be restrained from disclosing, using, copying or dealing with in any way any original or copy of documents or classes of documents or equipment as are numerated in Schedule A hereto.
5.The Applicant's conduct any search of the premises pursuant to paragraph 2 above under the supervision of Bruce Alexander James Virgo and Heather Watson of the firm Roberts Nehmer McKee Lawyers (‘Supervising Solicitors’).
6.Prior to removing any item from the premises referred to in paragraph 2 hereof the solicitor executing the Order shall:
(a) Prepare an inventory of items seized and shall give the occupant of the premises the opportunity to check the inventory; and
(b) Give the occupant a signed copy thereof prior to removing any of the items seized.
7.If an occupant of any of the premises is, or is likely to be, a woman, the Supervising Solicitor shall be a woman or accompanied by a woman.
8.By 4:00 p.m. on 15 March 2005 the Supervising Solicitors shall make, file and serve on the parties an affidavit setting out his or her report as to the manner in which this Order was executed.
9.By 4:00 p.m. on 15 March 2005 the solicitor executing the Order shall swear, file and serve on the Respondents a copy of an affidavit specifying and describing each item removed from any person on behalf of the Applicants from the premises referred to in paragraph 2 hereof and deposing to the whereabouts of such thing at the time of swearing of the said affidavit.
10.In the event that anything or any information apparently derived from any thing of a description specified in paragraphs 2 or 3 hereof is stored on or contained within a computer disk or storage device the Applicants or their nominated agent may remove same and by use of any such equipment take or make a copy of the contents of such computer disks or storage devices via downloading the contents of such computer disks or storage devices and further deliver any equipment seized under this order into the custody of the Court forthwith.
11.Any documents obtained by Messrs Jones King as a result of the order shall be retained by them in safe custody for the sole purpose of this proceeding until further order.
12.For the purpose of giving effect to the Order the Respondents and the person or persons at the premises shall to the best of their ability:
(a)Cause to be displayed or printed out by computer or computers all documents and materials referred to in paragraph 2 hereof or any portion or part of such materials as are in computer readable form and provide a Supervising Solicitor with the required passwords and log in names to do so;
(b)Specify and identify all documents, computers and computer storage devices and media all other things whatsoever in the possession, custody or control of the Respondents or at the premises at the time of the service of the Order which contained, record, identified or otherwise related to or which may be used for the production of documents or other things in printing or writing containing, recording or otherwise relate to any of the documents and materials in paragraph 2 and 3 hereof of the Orders above; and
(c)Open any locked enclosure at the premises secured for the purposes of storing any of the information or documents of the type referred to in Orders 2 and 3 hereof failing which the said enclosure may be unlocked by a locksmith engaged by the Applicants to permit the Order to be carried out in relation to the contents (if any) of such enclosure.
13.Until 4:30 p.m. on 16 March 2005 or further Order, other than in compliance with Orders 2 and 3 hereof, the Respondents are restrained from destroying, parting with possession, power or control of removing from their present location or changing or defacing in any manner whatsoever any original and copy documents, tapes, magnetic tapes, electronic readings, computer programs, computer disks, computer software and any other means of reproduction, access to, recording or incorporation of information referred to and set out in Schedule A hereto.
14.That the Applicant’s solicitors, their employees or agents, be authorised to view, copy and download information and records as are listed in Schedule A they may seize or have delivered up to them as may reasonably appear to the Applicant’s solicitors to relate to the location, application or use of the Funds or the subject matter of these proceedings,
PROVIDED THAT nothing in this order requires the Respondents to permit inspection or seizure of any document or item concerning which the Respondent claims a privilege against self-incrimination or legal professional privilege. In the event of any such claim against self-incrimination or legal professional privilege such document or item the subject of such claim shall be placed immediately in the custody of the Supervising Solicitors until further order.
15.There be no notification or publication of this Order in this proceeding until after the service of this Order on the Respondents.
16.Except for the purpose of obtaining legal advice the Respondents or any person on their behalf must not directly or indirectly inform anyone of these proceedings or of the contents of this order, or warn anyone that proceedings have been or may be brought against him by the Applicant until 4:30 p.m. on 16 March 2005 or on such further date as may be ordered by the Court.
17.The time for service of this Application is expedited.
18.The further hearing of the application is adjourned to 10:45 a.m. on 16 March 2005 before the Honourable Justice Kiefel.
19.That the Applicant as soon as practicable provide security for its undertaking as to damages in the sum of $20,000, such security to be provided by way of cash or bank guarantee in a form satisfactory to the registrar of this Court.
20.The Applicant's costs of and incidental to this Application and the execution of the within order be reserved.
21.Liberty be reserved to any party to the proceeding or to any person affected by this Order to apply as they may be advised.
22.The costs of this day be reserved.
Schedule A
1. Bank statements, cheque books and stubs, receipts, invoices, share certificates, financial documents and records (including documents and records relating to gaming, wagering or betting accounts) and correspondence relating to financial dealings of the Respondents or real estate transactions of the Respondents.
2. Computers (whether in whole or in parts), Computer disks or diskettes, CD-ROMs, DVD-Roms, central processing units, hard drives, computer programs, bookmarks, passwords, log ins, documents and similar articles which appear to the Applicant’s representatives to contain financial information relating to:
(a)any of the Respondents;
(b)Bainton Investments;
(c)John Wilch;
(d)Swiss bank accounts or bank account numbers;
(e)International bank accounts;
(f)International monetary transfers;
(g)real estate transactions of either of the Respondents;
(h)the NAB account or accounts.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 60 OF 2005
BETWEEN:
LIFETIME INVESTMENTS LTD
(A St Vincent and the Grenadines Company No 5479 IBC 2000)
APPLICANTAND:
COMMERCIAL (WORLDWIDE) FINANCIAL SERVICES PTY LTD (ACN 053 354 706)
FIRST RESPONDENTWILLIAM DAVID WALLADER
SECOND RESPONDENT
JUDGE:
KIEFEL J
DATE:
14 MARCH 2005
PLACE:
BRISBANE
REASONS FOR JUDGMENT
In this matter I am considering whether or not to vacate my order made on 10 March 2005 because of factors which were either not brought to my attention, or in respect of which I was misled. It would now appear from what has been drawn to my attention that it is unlikely that the funds were misappropriated in the sense of being applied to the purchase of a cattle property because the contract for this purchase had been entered into prior to the deposit of the monies by the applicant with the first respondent. The second matter affects the movement of monies. I was told that a substantial number of the lots of the cattle property had in fact now been sold. I accept however that there was no intention to mislead the Court.
These factors highlighted to me that not only had there been a misappropriation of monies but also the need for a tracing order, one which might have some utility. The position now is that the applicant simply does not know what has become of the funds. The position is somewhat different. The funds may not have been applied to particular assets but are wholly unaccounted for.
Nevertheless, despite my initial misgivings and my initial view that the matter ought to be vacated because misleading information had been given, it does remain the case that the correspondence and communications with the second respondent show that no meaningful information is going to be provided to the applicant about where the funds have been placed.
The applicant faces, as I have said before, the prospect that the documentary materials may be lost, but that is a matter which does not weigh entirely against the making of an order. Any delay that the applicant has been guilty of will work against it rather than the respondents. I remain of the view that this seems to me to be a prima facie case of the respondents having constituted themselves as trustees and that a tracing order is in those circumstances appropriate. I also remain of the view that the matter is probably not one appropriate to this Court, and that this should be considered by the legal representatives. Indeed if this is in truth a trust action, they may find more appropriate procedures under the Queensland legislation.
The orders will therefore remain but they will need to be varied in relation to the dates.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate:
Dated: 14 March 2005
Counsel for the Applicant: Mr J Catlin Solicitor for the Applicant: Jones King Lawyers Solicitor for the Respondent: No Appearance Date of Hearing: 14 March 2005 Date of Judgment: 14 March 2005
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