Oswal v Carson & Ors

[2011] VSC 70

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI  2011 00785

RADHIKA PANKAJ OSWAL	Plaintiff
v
IAN MENZIES CARSON, DAVID LAURENCE McEVOY, SIMON GUY THEOBALD AND BURRUP FERTILISERS PTY LTD (ACN 095 441 151)	Defendants

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JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2011
DATE OF RULING:	8 March 2011
CASE MAY BE CITED AS:	Oswal v Carson and ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 70	Revised 15 March 2011

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INJUNCTION – Interlocutory injunction – Receivers appointed under the terms of a fixed and floating charge – Restraint to prevent receivers from having access to or dealing with the plaintiff’s email communications – Whether there was a serious question to be tried – Balance of convenience –  Whether an undertaking as to damages was adequate – Lower risk of injustice – Expedited trial of preliminary question

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K Williams	Jones Day
For the Defendants	Mr J W S Peters SC Mr D R Luxton	Freehills

HIS HONOUR:

1. This proceeding was commenced by writ filed on 22 February 2011.  The plaintiff is the wife of the former Managing Director of the fourth defendant Burrup Fertilisers Pty Ltd (“BFPL”) and was permitted to use BFPL email servers for sending and receiving emails.  On 17 December 2010, the first to third defendants, Ian Menzies Carson, David Laurence McEvoy and Simon Guy Theobald, were appointed receivers and managers of the assets and undertaking of BFPL.[1]

   [1]The validity of that appointment is not conceded by the Plaintiff.

1. In her statement of claim, the plaintiff alleges that at various times since 2006 she used the following email addresses (“the email addresses”) to send and receive emails: [2]

   [2]Statement of Claim [1].

·[e-mail]

·[e-mail]

·[e-mail]

·[e-mail]

·[e-mail]

·[e-mail]

·[e-mail]

The plaintiff alleges that the emails sent to the email addresses and copies of the emails sent from the email addresses were at all material times, and are, hosted or stored on the server or servers or other computer equipment owned and operated by BFPL save to the extent that any of them were not saved or have been deleted. 

1. The plaintiff alleges that these emails:

(a)were and are emails relating to the plaintiff’s private, personal or business affairs;

(b)were and are not emails relating to the business or affairs of BFPL;

(c)were sent or received in circumstances where the plaintiff was entitled to and did expect that they would not be disclosed to or accessed by any person other than the plaintiff without her express or implied authority; and

(d)were and are documents which belong to the plaintiff.[3]

[3]Statement of Claim [4].

1. The plaintiff further alleges that since 17 December 2010, the first, second and third defendants (“the receivers”) have acted as receivers and managers of the undertaking and assets of BFPL and they or those acting under their direction have control of the servers or other…