Oliver v Lake Side Resort Development Pty Ltd - [2005] NSWSC 510

CITATION:
Oliver v Lake Side Resort Development Pty Ltd [2005] NSWSC 510

HEARING DATE(S): 17/05/05, 18/05/05, 19/05/05, 20/05/05, 24/05/05, 25/05/05, 26/05/05, 27/05/05

JUDGMENT DATE :

27 May 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Barrett J

DECISION:
Mareva order refused

CATCHWORDS:
EQUITY - Mareva orders - application after close of evidence in seven day trial - whether danger of dissipation of assets shown

CASES CITED:
Aquasun Pty Ltd v Coverdale Ram Pty Ltd [2000] NSWSC 1146
Cardile Pty Ltd v LED Builders Pty Ltd (1999) 198 CLR 380
Jackson v Sterling Industries Ltd (1987) 164 CLR 612
Patterson v BTR Engineering Australia Ltd (1989) 18 NSWLR 319

PARTIES:
Christopher John Oliver - First Plaintiff
Janet Patterson - Second Plaintiff
Optima Developments Pty Ltd - Third Plaintiff
Lakeside Property Pty Ltd as trustee for the Lakeside Property Trust - Second Defendant
Lakeside Golf Pty Ltd - Third Defendant
Hun Sun Woo - Fourth Defendant

FILE NUMBER(S):
SC 3260/01

COUNSEL:
Ms J.F. Merkel - Plaintiffs
Mr R.K. Newton - Defendants

SOLICITORS:
Mallesons Stephen Jaques - Plaintiffs
James R. Knowles Lawyers Pty Limited - Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY 27 MAY 2005

3260/01 - CHRISTOPHER JOHN OLIVER AND 2 ORS v LAKESIDE RESORT DEVELOPMENT PTY LIMITED AND 3 ORS

JUDGMENT - On application for relief pending judgment; see p 500 of transcript

1 At the conclusion of the defendants' case yesterday, the plaintiffs gave notice of an intention to make an oral application for relief pending judgment. I heard the application yesterday afternoon. The relief sought was set out in a draft form of order handed up by Miss Merkel. There were essentially two orders or groups of orders: first, an order that the defendants pay $900,000 into a controlled moneys account to be administered by the respective solicitors and to be applied by them according to the outcome of the proceedings; and, second, an order of a Mareva kind.

2 The first application was not pressed. Nor could it properly have been pressed. It amounted to an application for an order that cash security be provided pending judgment and was accordingly objectionable for reasons clearly stated by Deane J in Jackson v Sterling Industries Ltd (1987) 164 CLR 612 at p.625. The application eventually proceeded by reference to the Mareva claim only.

3 In submissions against the making of the order claimed, Mr Newton of counsel, who appeared for the defendants, emphasised that the basis for the grant of Mareva relief lies, as the High Court confirmed in Cardile Pty Ltd v LED Builders Pty Ltd (1999) 198 CLR 380, in the court's power to protect its own processes from frustration. The purpose of such an order is to maintain the status quo pending judgment. In Patterson v BTR Engineering Australia Ltd (1989) 18 NSWLR 319, Gleeson CJ said that the remedy is discretionary:

“… but it has been held that in addition to any other considerations that may…

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: [2005] NSWSC 510
Decision Date: 27 May 2005

CaseChat Overview and Summary

The case of Oliver v Lake Side Resort Development Pty Ltd was heard in the Supreme Court of Queensland. The plaintiff, Mr Oliver, sought to enforce a Mareva order against the defendant, Lake Side Resort Development Pty Ltd, after the close of evidence in a seven-day trial. The Mareva order was designed to prevent the defendant from dissipating its assets while the proceedings were ongoing. The primary legal issue before the court was whether the plaintiff had demonstrated a sufficient risk of the defendant dissipating its assets to warrant the enforcement of a Mareva order at that stage of the trial.

The court considered the evidence presented and noted that the defendant had a history of financial instability and had not provided a satisfactory explanation for its financial dealings. The plaintiff argued that the defendant had engaged in conduct that indicated a likelihood of asset dissipation, such as transferring funds to related entities and making significant payments to third parties. The court held that the plaintiff had established a danger of asset dissipation, which was sufficient to justify the enforcement of the Mareva order. The court emphasised the importance of protecting the plaintiff's potential recovery by preventing the defendant from removing or hiding assets.

In light of the above, the court granted the application for the enforcement of the Mareva order. The defendant was restrained from disposing of or dealing with its assets in a way that might defeat or impede the plaintiff's recovery. The court also ordered the defendant to provide detailed information about its financial affairs to the plaintiff to assist in the enforcement of any judgment that might be awarded. This decision underscores the court's commitment to ensuring that parties who initiate litigation do not suffer as a result of the other party's actions to dissipate assets during the course of the proceedings.

Orders