Norsemeter Holdings v Pieter Boele

[2004] NSWSC 139

CITATION:	NORSEMETER HOLDINGS v PIETER BOELE [2004] NSWSC 139
HEARING DATE(S):	03/03/2001
JUDGMENT DATE:	3 March 2004
JURISDICTION:	EQUITY
JUDGMENT OF:	Bryson J at 1
DECISION:	Mareva Order dissolved - see [12]
CATCHWORDS:	PRACTICE and PROCEDURE - Mareva Order - plaintiff obtained Mareva order in March 2002 and obtained Summary Judgment which the Court of Appeal set aside in November 2002 - thereafter the plaintiff took no step in the proceedings - plaintiff (incorporated in Norway) ceased to be represented by solicitors in NSW - orders for costs in favour of defendant were unpaid - defendant obtained orders dissolving Mareva orders, staying proceedings and dismissing proceedings in 2 months' time if plaintiff did not pay costs and obtain leave to proceed.
PARTIES :	Norsemeter Holdings - Plaintiff Pieter Boele - Defendant/Applicant
FILE NUMBER(S):	SC 50173/2001
COUNSEL:	Pieter Boele - Defendant/Applicant - In person
SOLICITORS:	Plaintiff respondent did not appear.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

WEDNESDAY 3 MARCH 2004

50173/01 NORSEMETER HOLDINGS v PIETER BOELE

JUDGMENT

1 HIS HONOUR: The defendant, Mr Boele, applied to the Court by notice of motion on 23 February 2004 for an order to set aside the Mareva orders which were made on 8 March 2002. He asked for other orders, including an order dismissing the summons or staying the proceedings until various costs orders are paid; and several other orders in the alternative.

2 On 27 February the proceedings came before Windeyer J and the plaintiff was represented by Ms Shields, solicitor, of Messrs Gadens, Lawyers. Mr Boele filed an amended notice of motion; unfortunately, the amended document is not in the file, but he has given me a copy which I will leave in the file. He then obtained an order releasing an amount of $10,000 which had been set aside as security for costs under an order made earlier in the proceedings. I understand that this has been paid to him.

3 The other claims, including the claim to set aside the Mareva order, were adjourned to today.

4 In the interim Messrs Gadens filed on 2 March 2004 first, a notice of change of solicitor, which confirmed that they had been appointed to act as solicitor for the plaintiff and second, a notice of ceasing to act, which shows that that firm had given notice to the plaintiff of its intention to cease to act, and they did so on 2 March, that is yesterday.

5 In the result then, the plaintiff has not appeared before me today and Mr Boele has pressed on in person with his remaining applications.

6 In support of his application he has referred to his affidavit of 23 February 2004 and a further affidavit of 26 February 2004. I have also taken notice of the history of the conduct of the proceedings, as appears on the file. The plaintiff obtained an order for summary disposal of so much of its claim as is based on a Norwegian judgment. The order was made by Einstein J on 19 April 2002, but in its decision of 13 November 2002 the Court of Appeal set aside that order for summary disposal and made a order for costs, which, after some correction, showed that the plaintiff was ordered to pay Mr Boele’s costs.

7 The order for costs was not complied with and the only measure of enforcement which Mr Boele has been able to obtain is the release under the orders made by Windeyer J on 27 February 2004 of $10,000 for security for costs, which is altogether inadequate.

8 The plaintiff has taken no step whatever to further its claim since the decision on appeal of 13 November 2002, but has continued to have the benefit of the restraints over Mr Boele imposed by the Mareva order. It has had that benefit without complying with orders for costs, which have been made in his favour at several stages in the proceedings.

9 Mr Boele’s affidavit shows that the restraints imposed by the Mareva orders have had severe adverse effects on his economic position and personal life, which are continuing. In my view, it is unjust that these restraints should continue so long when the plaintiff is altogether inactive in the conduct of the proceedings and, indeed, has not even attended to the important matter for a plaintiff overseas of continuing to maintain legal representation here.

10 In these circumstances, I am of the view that I should dissolve the Mareva orders. Mr Boele also asks that the proceedings be dismissed or, alternatively, stayed until the costs are paid. The manner in which the proceedings have been conducted by the plaintiff appears to me to be quite unjust, in that Mr Boele has been kept, for a few days short of two years, under severe restraints by the Mareva orders, and for most of that period the plaintiff has been quite inactive in pressing on with the proceedings or in meeting its obligations to him. This cannot continue.

11 In my view, I should stay the proceedings until the plaintiff satisfies all obligations to Mr Boele in respect of costs and interest. Further, I should make an order to the effect that the proceedings are to stand dismissed in two months unless in the interim the plaintiff meets its obligations to Mr Boele for costs and obtains the leave of the Court to further prosecute the proceedings, that is to say obtains an order setting aside the stay.

12 I make the following orders:

1. The Mareva order of 8 March 2002 is dissolved.
2. I order that further proceedings by the plaintiff herein be stayed until the plaintiff shall have complied with all orders for costs which have been made in these proceedings in favour of the defendant and with all obligations to pay interest in respect of such costs.
3. I order that these proceedings stand dismissed with costs on Monday 3 May 2004 unless before that date the plaintiff shall have paid all costs and interest payable to the defendant under orders of this Court, and shall have obtained the leave of the Court to prosecute the proceedings further.
4. I order that the plaintiff pay the defendant’s costs of the notice of motion of 23 February 2004 and the amended notice of motion of 27 February 2004.

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Last Modified: 03/23/2004