McDonald v Neffati - [2015] FCCA 1242

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCDONALD v NEFFATI

[2015] FCCA 1242

Catchwords:
BANKRUPTCY – Preservation of assets – interlocutory order.

PRACTICE AND PROCEDURE – Interlocutory injunctions – ex parte application – mareva injunction.

Legislation:

Bankruptcy Act 1966 ss.27, 29, 116
Federal Circuit Court Act 1999 s.15
Federal Court of Australia Act 1976

Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Re John Cecil Clunies-Ross A Bankrupt Ex Parte: Geoffrey Frank Totterdell the Trustee of the Property of John Cecil Clunies-Ross A Bankrupt v John Cecil Clunies-Ross [1987] FCA 114
Reid v Howard (1995) 184 CLR 1

Applicant:

GEOFFREY DAVID MCDONALD THE TRUSTEE OF THE BANKRUPT ESTATE OF MONCEF NEFFATI

Respondent:

MONCEF NEFFATI (A BANKRUPT)

File Number:

SYG 1254 of 2015

Judgment of:

Judge Street

Hearing date:

8 May 2015

Date of Last Submission:

8 May 2015

Delivered at:

Sydney

Delivered on:

8 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr G. McDonald

Solicitors for the Applicant:

Gavin Parsons And Associates

There was no appearance by the respondent

ORDERS

I now make the following orders:

The hearing in respect of the application for Interim Orders be heard ex parte.
Up to and including 14 May 2015 the Respondent by himself, his servants or agents, be restrained from taking any steps to dispose of the Respondent’s interest in the property in Tunisia identified within the annexed Schedule to the orders (“the Real Property”) or granting or taking any steps to grant any lease, license or right to use occupy or possess the Real Property in any way.
On or before 5pm on 12 May 2015, the Respondent is to file an affidavit, within a sealed envelope, which is not to be opened without an Order of a Judge of this Court, in which the Respondent must:
(a)disclose any real property of any description located in Tunisia in which the Respondent has, or has had at any time since 14 February 2008 (being a date five years before the date of bankruptcy) an interest, beneficial or legal, freehold or leasehold, improvements or land only, including title and location details;
(b)disclose any personal property of any description located in Tunisia in which the Respondent has, or has had at any time since 14 February 2008 (being a date five years before the date of bankruptcy) an interest and describe any such personal property by providing identifying details, such as a serial number or vehicle identification number;
(c)disclose the Respondent’s understanding and knowledge of the Real Property and the nature of his interest, if any, in the Real Property;
(d)disclose the bank account numbers and current account balances for any bank account in Tunisia holding any monies in which the Respondent has an interest, if any.
Up to and including 14 May 2015 the Respondent by himself his servants or agents, be restrained from withdrawing, transferring or otherwise dealing with any monies in any bank account in Tunisia in which the Respondent has an interest, including but not limited to any such bank account…

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.

Continue reading McDonald v Neffati

Details

AGLC: McDonald v Neffati [2015] FCCA 1242
Case: [2015] FCCA 1242
Decision Date: 8 May 2015

CaseChat Overview and Summary

In *McDonald v Neffati*, the Federal Circuit and Family Court of Australia considered an application for an interlocutory Mareva injunction. The applicant sought to preserve assets pending the determination of a bankruptcy notice.

The central legal issue before the Court was whether the applicant had established a sufficient case for the grant of an ex parte Mareva injunction. This required the Court to assess whether there was a real risk that the respondent would dissipate assets, thereby frustrating the potential enforcement of the bankruptcy notice.

The Court applied the principles governing Mareva injunctions, which require the applicant to demonstrate a good arguable case on the merits of the underlying claim and a real risk of dissipation of assets. The Court considered the evidence presented by the applicant regarding the respondent's financial position and conduct.

The Court granted the interlocutory Mareva injunction, finding that the applicant had satisfied the necessary criteria. The orders were designed to prevent the respondent from dealing with specified assets pending further order of the Court.

Orders