Mather v Luttrell Ltd; Luttrell Ltd v KERR - [2003] FMCA 62

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MATHER v LUTTRELL LTD & ORS
LUTTRELL LTD & ORS v KERR & ORS

[2003] FMCA 62

PRACTICE AND PROCEDURE – Mareva injunction – respondent foreign citizen – whether asset dissipated for legitimate purpose – whether dual purpose including inability of applicant to satisfy judgment – whether ‘good arguable case’ or ‘prima facie cause of action’ required – balance of convenience – risk of dissipation of assets before trial.

Corporations Act2001, s.9
Trade Practices Act1974, s.51A
Fair Trading Act1999, s.4
Federal Magistrates Act 1999, s.15

Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSW LR 319 (CA)
Beach Petroleum NL v Johnson (1992) 9 ACSR 404
Woodside Hospitals Consulting Pty Ltd v Stockton Nominees Pty Ltd & ors (1998) VSC 121 (11 September 1998)

Applicant

ANDREW BYRON MATHER

Respondents

LUTTRELL LTD, GUITARAMA PTY LTD (ACN 9 470 637), GLENN MARCEL JONSON and ANN LAUDER JONSON

Cross-Claimants

LUTTRELL LTD, GUITARAMA PTY LTD (ACN 9 470 637), GLENN MARCEL JONSON and ANN LAUDER JONSON

Cross-Respondents

BARRY KERR, SUSAN KERR, DAVID KERR and JULIA KERR

File No:

MZ 127 of 2002

Delivered on:

4 March 2003

Delivered at:

Melbourne

Hearing Date:

11 February 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr P Goodrich

Solicitors for the Applicant:

Younger & Swinburne

Counsel for the Respondents:

Ms M Loughnan

Solicitors for the Respondents:

Slater & Gordon

Counsel for the Cross-claimants:

Ms M Loughnan

Solicitors for the Cross-claimants:

Slater & Gordon

Counsel for the Cross-Respondents:

No appearance

Solicitors for the Cross-Respondent:

Hunter Newns

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 127 of 2002

ANDREW BYRON MATHER

Applicant

And

LUTTRELL LTD, GUITARAMA PTY LTD, GLENN MARCEL JONSON and ANN LAUDER JONSON

Respondents

And

LUTTRELL LTD, GUITARAMA PTY LTD, GLENN MARCEL JONSON and ANN LAUDER JONSON

Cross-Claimants

BARRY KERR, SUSAN KERR, DAVID KERR and JULIA KERR

Cross-Respondents

REASONS FOR JUDGMENT

In this matter ANDREW BYRON MATHER (the Applicant) by Application filed 11 February 2002 has made a claim against LUTTRELL LTD (the First Respondent), GUITARAMA PTY LTD (the Second Respondent), GLENN MARCEL JONSON (the Third Respondent) and ANN LAUDER JONSON (the Fourth Respondent). The First Respondent at all material times is alleged to be a company incorporated pursuant to the laws of New Zealand. It is alleged the Second Respondent is a corporation incorporated under the Corporations Act2001. The Third and Fourth Respondents at all material times are alleged to be directors of the First Respondent and officers of the Second Respondent within the meaning of s.9 of the Corporations Act.
The Applicant by Notice of Motion dated 28 January 2003 seeks a Mareva order against the Third and Fourth Respondents restraining both Respondents from disposing of the proceeds of sale or at least that part of the proceeds up to $175,000 of a property at 56 Cummins Road East Brighton (the property). In support of the Application for a Mareva…

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: [2003] FMCA 62
Decision Date: 4 March 2003

CaseChat Overview and Summary

This case involved a legal dispute between Andrew Byron Mather, the applicant, and Luttrell Ltd, Guitarama Pty Ltd, Glenn Marcel Jonson, and Ann Lauder Jonson, the respondents, along with cross-claims involving Barry Kerr, Susan Kerr, David Kerr, and Julia Kerr. The applicant sought a Mareva order against the third and fourth respondents, Glenn Marcel Jonson and Ann Lauder Jonson, to restrain them from disposing of the proceeds of sale of a property at 56 Cummins Road East Brighton. The legal issues centred on whether the applicant had established a prima facie cause of action against the respondents, if there was a real risk of the dissipation of assets, and whether the balance of convenience favoured the grant of the injunction. The court found that the applicant had established a prima facie cause of action against the respondents, and there was a real risk of dissipation of assets in the absence of a Mareva order. The court also found that the balance of convenience favoured the applicant. Consequently, the court granted a Mareva order to preserve $45,000 of the proceeds of sale of the property, leaving approximately $30,000 to $35,000 available to the respondents for living expenses. The court further decided to prioritise the hearing of the application, which was likely to be rescheduled to May 2003.

Orders