Playford Vineyard Pty Ltd (ACN 604 608 157) v Wishford Nominees Pty Ltd (ACN 008 077 236) (No 3) - [2020] SASC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
PLAYFORD VINEYARD PTY LTD (ACN 604 608 157) v WISHFORD NOMINEES PTY LTD (ACN 008 077 236) (No 3)
[2020] SASC 56
Judgment of The Honourable Justice Stanley
20 April 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - ORIGINATING PROCESS, PLEADINGS ETC
ESTOPPEL - ESTOPPEL BY JUDGMENT - ANSHUN ESTOPPEL - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DETENTION, INSPECTION AND PRESERVATION - FREEZING ORDERS
These proceedings concern a dispute between the parties over the lease of a vineyard in the Riverland. The matter proceeded to trial on the principal issue of whether the defendant had breached the terms of its lease and subsequently whether the plaintiff was entitled to terminate the lease and re-enter the property. The parties agreed that the question of damages would be decided subsequent to the trial issue. At trial the plaintiff failed to prove a breach of the lease. This was upheld on appeal. Special leave to the High Court was refused.
Two applications were before the Court. The first is an application by the plaintiff for leave to amend the second points of claim and reply and the defence to counterclaim filed in the proceedings. The effect of these amendments is to plead new causes of action which the plaintiff says makes the defendant liable to it in damages. The second is an application by the defendant for a freezing order pursuant to SCR 247.
Held:
1. The factual matrix giving rise to the trial is essentially the same factual matrix given legal form in the plaintiff’s proposed amendments.
2. The claims the plaintiff seeks to bring are so relevant to the subject matter of the trial it is unreasonable that those claims were not propounded at that time.
3. The trial was not the trial of a preliminary issue. It was the trial on liability. Implicit in the separation of the issue of damages was that the plaintiff would pursue whatever claims it considered it had to establish any entitlement to damages.
4. The plaintiff is estopped from claiming damages on the basis of other causes of action which ultimately turn on the management of the vineyard by the defendant.
5. However, the proposed plea in paragraph 15 of the third points of reply and second defence to cross-claim raises an allegation concerning management of the vineyard by the defendant subsequent to the plaintiff’s re-entry. This forms part of the issue of damages that was reserved. Leave is granted to file an amended paragraph 15 of the second points of defence to the second points of cross-claim.
6. For the purposes of deciding the freezing order application, the plaintiff’s exposure to the defendant is in the range of $1,184,000 to $1,284,000. There is currently $1,078,000 held in the Suitor’s Fund.
7. It has not been established that a freezing order is required to avoid the danger that a prospective judgment and costs orders will be partly unsatisfied.
Supreme Court (Civil) Rules 2006 (SA) r 247, referred to.
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287; Yadlamalka Land Pty Ltd v Ragless & Anor [2018] SASC 131, applied.
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Tomlinson v Ramsey Food Processing Pty Ltd (2016) 256 CLR 507; Boles v Esanda Finance Corporation Ltd (1989) NSWLR 666, discussed.
Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd [2018] SASC 84; Trawl Industries of Australia Pty Ltd (in Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406; Ling v Commonwealth (1996) 68 FCR 180; Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; RTP Holdings Pty Ltd & Anor v Robers & Ors (No. 2) [2000] SASC 390, considered.

PLAYFORD VINEYARD PTY LTD (ACN 604 608 157) v WISHFORD NOMINEES PTY LTD (ACN 008 077 236) (No 3)
[2020] SASC 56
Civil
STANLEY J:
Introduction

There are two applications before the Court. The first is Playford’s application to amend the second points of claim and the second points of reply and the first defence to cross-claim. The second is Wishford’s application for a freezing order.
Application to amend
These proceedings concern a dispute between the parties over the lease of a vineyard in the Riverland. Playford was the proprietor and lessor of the vineyard. Wishford was the lessee, although it had previously been the proprietor of the vineyard which it had sold to Playford on terms that involved a lease back of the vineyard and options to re-purchase.
In 2016 and 2017 a dispute arose between the parties as to Wishford’s management of the vineyard. That culminated in Playford giving notice of termination of the lease and re-entry into the property on 4 September 2017.
On 20 September 2017 a Master of this Court made an order permitting Playford to re-enter the vineyard. Playford then undertook a process of pruning.
On 31 October 2017, pursuant to an interlocutory application, I set aside the master’s order and ordered instead that Wishford be reinstated to possession.
Subsequently the matter came on for trial at short notice before me, commencing on 27 November 2017. The trial was conducted in the absence of pleadings, but pursuant to points of claim. The trial was heard over 21 days and concluded on 9 March 2018.
Relevantly, for the purposes of determining Playford’s application to amend, the principal issue at the trial was whether Wishford had breached the terms of its lease. There was a further issue as to whether Wishford enjoyed an extant option to re-purchase the vineyard but that question, which was resolved against Wishford, is not relevant to Playford’s present application to amend.
Whether Wishford had breached the terms and conditions of its lease was critical to the declaration sought at the trial by Playford that it had validly terminated the lease on 4 September 2017.
For the purposes of the trial the parties agreed that the question of damages would be decided subsequent to the determination of the issue of whether Playford was entitled to terminate the lease and re-enter the property. This is reflected in my reasons for judgment where I recorded that it was agreed the issue of damages payable to either party was to be left until after judgment had been delivered in that part of the proceedings.[1] The question of assessment of damages was left to a further hearing subsequent to the delivery of judgment on the trial issue.
[1] [2018] SASC 84 at [605].
The outcome of the trial issue was critical to the parties’ competing claims for damages. If Playford had succeeded on the trial issue, it was entitled to pursue a claim for damages on the basis that it had suffered loss by reason of the inadequate management of the vineyard by Wishford. If Wishford had succeeded on the trial issue, it was entitled to claim damages for any loss it suffered by reason of the nature of Playford’s subsequent management of the vineyard during the period of its re-entry pursuant to the order made by the master on 20 September 2017, during which Wishford alleges Playford had undertaken severe pruning of the vines and underwatered the vineyard.
Central to Playford’s case at trial was its contention that Wishford was in breach of relevant terms and conditions of the lease, namely, clauses 4.12.1 and 9.3.2, because of its failure to undertake under-vine trimming. At trial Playford relied on what it alleged was a failure on the part of Wishford to notify Playford of any intention to undertake this trimming as evidence of the absence of such an intention. Contrary to this contention I found that Wishford did intend to undertake this work and that Playford had not proved a breach of the lease entitling it to terminate the lease and re-enter.[2] Further, I found that Wishford’s failure to notify Playford, prior to 4 September 2017, of its intention to undertake this work was not a breach of the lease.[3]
[2] [2018] SASC 84 at [525]-[530].
[3] [2018] SASC 84 at [528].
Playford appealed to the Full Court from my judgment. The appeal was dismissed.[4] An application for special leave to appeal to the High Court was dismissed.[5]
[4] Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd [2019] SASCFC 99.
[5] Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd [2019] HCASL 402.
Playford now seeks to amend the points of claim to plead new causes of action by which it seeks to allege Wishford is liable to it in damages.
The new causes of action it seeks to plead are misleading and deceptive conduct, misrepresentation, breach of an implied term of good faith and negligence. The basis of the proposed claim for damages for breach of the implied term, misleading and deceptive conduct and misrepresentation is based on an alleged failure by Wishford, after receipt of Playford’s default notice, to disclose to Playford on or before 4 September 2017 or, at the latest by 20 September 2017, Wishford’s intention to perform under-vine trimming for which purpose it had purchased a collard pruner. The proposed plea in negligence is based on an alleged failure by Wishford to properly manage the crop due to its failure to properly irrigate and/or properly fertigate.
Playford contends that it is open to it now to pursue these proposed causes of action on the basis that the trial was a preliminary hearing and the Court, in reserving the issue of damages, left open Playford’s right to pursue further causes of action, not pursued at the trial, given that the Court reserved the issue of any liability for damages.
Wishford opposes the application to amend. It submits that the trial was not the trial of a preliminary issue but the trial on liability. The case sought to be propounded by the amendments is an alternative case to Playford’s case at trial of breach of the terms of the lease. This alternative case is sought to be effected by amendments to paragraphs 10.3, 11.2, 14, 15, 17 and 18‑32 of the second points of claim and paragraphs 11 to 16 of the second points of reply and first defence to cross-claim. Wishford contends that Playford is estopped from amending to run a case not run at trial or contrary to the case it ran at trial.
In Tomlinson v Ramsey Food Processing Pty Ltd,[6] in their joint reasons French CJ, Bell, Gageler and Keane JJ identified the three forms of estoppel in relation to judicial determinations. Their Honours said:[7]
Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as “cause of action estoppel”. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as “issue estoppel”. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”. The third form of estoppel is now most often referred to as “Anshun estoppel”, although it is still sometimes referred to as the “extended principle” in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
[6] [2015] HCA 28, (2016) 256 CLR 507.
[7] [2015] HCA 28 at [22], (2016) 256 CLR 507 at 517-518.
The form of estoppel described as Anshun estoppel takes its name from the Port of Melbourne Authority v Anshun Pty Ltd[8] (Anshun).
[8] (1981) 147 CLR 589.
In Anshun a worker was injured in the course of his employment when material handled by a crane, operated by Anshun Pty Ltd, fell on him. The crane was hired from the Port of Melbourne Authority (PMA), with the hire governed by an agreement by which Anshun agreed to indemnify PMA against “all actions, proceedings and claims whatsoever brought against (PMA) … in relation to any injury or loss of life whatsoever … arising directly or indirectly out of or in any way attributable or incidental to the use of the plant during the period of the hire”.
The worker sued both the PMA and Anshun Pty Ltd for damages in negligence. The defendants claimed contribution from the other pursuant to s 24 of the Wrongs Act 1958 (Vic), which empowered the court to both exempt a party from making contributions and to order a party recover from another on the basis of an indemnity. Notwithstanding the hire agreement, PMA’s notice of contribution did not claim an indemnity.
Judgment was entered against both defendants, with Anshun Pty Ltd obtaining contribution from PMA of 90 percent of the quantum of damages, and PMA obtaining from Anshun Pty Ltd 10 percent of the quantum. PMA later brought an action against Anshun Pty Ltd pursuant to the contractual indemnity claiming their contribution and legal costs. A Judge of the Victorian Supreme Court stayed the action. The Full Court dismissed an appeal from that order. On appeal the High Court affirmed the Full Court, and found PMA was estopped from bringing the action. The indemnity was a defence to the claim for contribution in the worker’s action, and was so closely connected with the subject matter of that action that it was to be expected that it would be relied upon as a defence to that claim.
In their joint reasons, after analysing the history of res judicata and issue estoppel, Gibbs CJ, Mason and Aickin JJ said:[9]
In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few… It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment…
[9] (1981) 147 CLR 589 at 602-603.
The same proposition applies equally to a claim as to a defence.[10]
[10] Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 at 673.
In Tomlinson their Honours considered the doctrine of abuse of process, and its overlap with Anshun estoppel in the following terms:[11]
The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.
[Citations omitted].
[11] [2015] HCA 28 at [24]-[26], (2016) 256 CLR 507 at 518.
In Habib v Radio 2UE Sydney Pty Ltd[12] McColl JA, with whom Giles and Campbell JJA agreed, said:[13]
The principle commonly referred to as Anshun estoppel, established in Henderson v Henderson involves an extended doctrine of res judicata. It operates “not only [in respect of] points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time”: Anshun per Gibbs CJ, Mason and Aickin JJ. There will be an estoppel if it appears that “the matter relied upon … in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”: Anshun. The test is one of reasonableness. Gibbs CJ, Mason and Aickin JJ rejected Lord Kilbrandon’s formulation of the test in Yat Tung that it was “an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings”.
Thus Anshun estoppel introduces “an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings”; it is “allied to, but not co-extensive with, res judicata and issue estoppel”: Spalla v St George Finance Ltd (No 6), referring to Bryant v Commonwealth Bank of Australia (Full Federal Court).
[Citations omitted].
[12] [2009] NSWCA 231.
[13] [2009] NSWCA 231 at [81]-[82].

In deciding whether Anshun estoppel is established it is relevant to consider whether each claim arises substantially out of the same matters of fact.[14] An estoppel is more likely to exist where the one factual matrix has generated the controversy which is given legal form in the pleadings in the two proceedings.[15] The greater the overlap between the facts underlying each claim the easier it is to conclude that it was unreasonable not to raise the matter in the first proceeding.[16]
[14] Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 298.
[15] Trawl Industries of Australia Pty Ltd (in Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 422.
[16] Ling v Commonwealth (1996) 68 FCR 180 at 184.
In other words, was the matter so relevant that it can be said that it was unreasonable not to have relied upon it in the earlier proceedings.[17] That evaluation focusses upon the substance of the two proceedings as distinct from their form.[18]
[17] Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245 at 246.
[18] Trawl Industries of Australia Pty Ltd (in Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418; Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457 at 462.
The principle of Anshun estoppel emphasises the importance of finality in litigation, the avoidance of conflicting judgments, the convenient and expeditious use of court resources and the time, trouble and costs of litigation to the parties.
Subject to one matter, Playford is estopped from now seeking to establish that Wishford is liable to it in damages for causes of action which arise substantially out of the same matters of fact that provided the basis for Playford’s claim that Wishford had breached the terms of the lease. The factual matrix which generated the controversy that was decided at the trial is essentially the same factual matrix which is given legal form in the proposed amendments. The proposed amendments concern a claim by Playford that Wishford is liable to it in damages, either for its management of the vineyard during its period of occupation or because of its failure to inform Playford of its intentions in relation to the management of the vineyard which caused or induced Playford to terminate the lease and apply to the Court for orders to re-enter the vineyard. In addition, Playford wishes to propound a case founded on an allegation of an implied term of good faith in the lease. That can only be relevant to a claim based on breach of the implied term in the lease. These proposed claims have an obvious connection with the claim that was the subject matter of the trial.
The claims which Playford now seeks to bring are so relevant to the subject matter of the trial that it is unreasonable those claims were not propounded during the trial. To conclude otherwise would be to focus on the form of the proposed pleadings rather than the substance of the claims now sought to be propounded by the amendments sought. The focus of the trial was the determination of whether Wishford was liable to Playford in damages for its management of the vineyard. Playford chose to prosecute that claim by reliance upon allegations of breach of the lease. Having failed on those claims, Playford is now estopped from claiming damages on the basis of other causes of action which ultimately turn on the management of the vineyard by Wishford. It was unreasonable of Playford not to have relied upon those causes of action at the trial. Contrary to the submission of Playford, the trial was not the trial of a preliminary issue. It was, as Wishford contends, the trial on liability. The only issue that was not to be decided at the trial was the assessment of any damages consequential upon the determination of whether Wishford was liable to Playford in damages for its management of the vineyard. It was implicit in the separation of the issue of damages from the issue of liability at the trial that Playford would pursue whatever claims it considered it had to establish any entitlement to damages from Wishford at the trial on liability. Playford chose to confine its case on liability to an allegation of breach of lease. It is not open to it, having failed on that cause of action, now to allege other bases upon which Wishford is liable to it for its management of the vineyard.
Further, the proposed plea in paragraph 16 of the proposed third points of reply and second defence to cross-claim alleges that any intention by Wishford to prune the under-vine that existed as at 4 September 2016 (sic) was incapable of implementation without causing damage to the yield by the use of the Collard pruner. This proposed plea is inconsistent with the finding at trial that there was no breach of the terms of clauses 4.12.1 or 9.3.2 of the lease because of Wishford’s intention to undertake under-vine trimming.
In addition the proposed plea in paragraphs 11 and 12 of the proposed third points of reply and second defence to cross-claim does not disclose a reasonable ground of defence. The proposed plea is that Playford could not be liable in damages to Wishford because it re-entered the vineyard and undertook pruning of the vines pursuant to an order of the Court. However, Playford re-entered the vineyard pursuant to orders of the Court which were conditioned on an undertaking by Playford as to damages.
The one exception to this estoppel is the proposed plea in paragraph 15 of the proposed third points of reply and second defence to cross-claim whereby Playford alleges that any loss or damage occasioned to Wishford was caused by Wishford’s failure to adequately manage and maintain the vines after Wishford resumed possession on 31 October 2017, due to a failure to properly irrigate and/or properly fertigate. So much was conceded by Wishford. The allegation sought to be raised in paragraph 15 concerns the management of the vineyard by Wishford subsequent to 4 September 2017 which Playford alleges damaged the crop and thereby contributed to any resulting loss in value. It forms part of the consideration of the issue of damages that was reserved when the trial on liability was listed for hearing.
For these reasons, I would dismiss Playford’s application for leave to file third points of claim and the third points of reply and second defence to cross-claim, save and except for paragraph 15 of the third points of reply and second defence to cross-claim, exhibited at CLM1 to the sixth affidavit of Charles Liam McCusker.
I would hear the parties as to costs.
Application for a freezing order
Wishford brings an application pursuant to SCR 247 for a freezing order against Playford for the purpose of preventing the frustration or inhibition of the Court’s process whereby a prospective judgment of the Court will be wholly or partly unsatisfied.
The principles applicable to the application are helpfully set out in the reasons of Hinton J in Yadlamalka Land Pty Ltd v Ragless & Anor as follows:[19]
[19] [2018] SASC 131 at [35]-[43].
Rule 246(1) of the Supreme Court Civil Rules 2006 (SCCR) vests a discretionary power in this Court to grant an injunction before, at, or after the hearing and determination of proceedings in the Court. Rule 247 SCCR empowers the Court to make a particular kind of injunction – a freezing order. Rule 247(2) provides:
(2)     Freezing Order
(a)     The Court may make an order (a freezing order), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied.
(b)     A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.
Rule 247(5)(a)(ii)(A) provides that the power contained in rule 247(2) may be exercised where an applicant has a good arguable case on a prospective cause of action that is justiciable in the Court. Notwithstanding that rule 247(5)(a) and (b) condition the exercise of the power contained in rule 247(2), rule 247(5)(f) provides that nothing in the rule affects the power of the Court to make a freezing order or ancillary order if the Court considers it is in the interests of justice to do so.
Rule 247(5)(d) provides:
(d)     The Court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur—
(i)the judgment debtor, prospective judgment debtor or another person absconds; or
(ii)the assets of the judgment debtor, prospective judgment debtor or another person are—
(A)removed from Australia or from a place inside or outside Australia; or
(B)     disposed of, dealt with or diminished in value.
Rules 246 and 247 are supported by s 29 of the Supreme Court Act 1935 (SA) and the Court’s inherent power. Whatever the breadth of the power contained in s 29, to the extent that s 29 and the inherent power support rule 247 the doctrinal basis for a freezing order “is to be found in the power of the court to prevent the frustration of its process”. “The process which the order is designed to protect is a “prospective enforcement process””. In Mercedes Benz AG v Leiduck Lord Nicholls explained:
Ordinarily a plaintiff seeks a Mareva injunction in the same proceeding as those in which he is seeking his judgment. This should not be permitted to obscure the fact that Mareva relief differs from other interim relief in an important respect. Like other injunctions, a Mareva injunction operates in personam. It does not create a proprietary interest in the affected property, even where it relates to a specifically identified asset. And like other interim relief, a Mareva injunction is concerned to provide protection pending a future stage in the judicial process. But unlike other interlocutory relief, Mareva relief is not connected with the subject matter of the cause of action in issue in the proceedings. A Mareva injunction does not prevent a defendant from doing something which if done by him would be a wrong attracting a remedy. An unsecured creditor, or a claimant for damages, has no legal or equitable interest in any of the assets of the defendant, nor will the judgment itself give him such an interest. The judgment will comprise an order of the court that the defendant pay the plaintiff an amount of money.
This feature has to be kept in mind. Although normally granted in the proceedings in which the judgment is being sought, [a freezing order] is not granted in aid of the cause of action asserted in the proceedings, at any rate in any ordinary sense. It is not so much relief appurtenant to a money claim as relief appurtenant to a prospective money judgment. It is relief granted to facilitate the process of execution or enforcement which will arise when, but only when, the judgment for payment of an amount of money has been obtained...
Importantly any order made “must be framed so as to come within the limits set by the purpose which [the order] can properly be intended to serve”, that is, to ensure the effective exercise of the jurisdiction invoked. Self-evidently rule 247(5)(d) is framed in terms consistent with this requirement. It also reflects the common law. In this regard in Jackson v Sterling Industries Ltd Deane J said:
… As a general proposition, it should now be accepted in this country that “a Mareva injunction can be granted … if the circumstances are such that there is a danger of [the defendant's] absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that the plaintiff, if he gets judgment, will not be able to get it satisfied”: per Lord Denning M.R., Rahman (Prince Abdul) v Abu-Tahaquoted with approval by Street C.J. in Ballabil Holdings.
[footnotes omitted]
That said the starting point is to observe that the remedy is exceptional. The general rule is that a plaintiff must first obtain judgment then enforce it. Further:
[A Mareva order] is a drastic remedy which should not be granted lightly. …
A [Mareva order] is an interlocutory order which, if granted, imposes a severe restriction upon a defendant's right to deal with his or her assets. It is granted at the suit of a plaintiff whose status as a creditor is in dispute and who need not be a secured creditor. Its purpose is to preserve the status quo, not to change it in favour of the plaintiff. The function of the order is not to‘provide a plaintiff with security in advance for a judgment that he hopes to obtain and that he fears might not be satisfied; nor is it to improve the position of the plaintiff in the event of the defendant's insolvency’ … Many authorities attest to the care with which courts are required to scrutinise applications for [Mareva orders]. The leading decision in this State is Patterson v BTR Engineering (Aust) Ltd.”
A plaintiff will have a good arguable case where it demonstrates that it has “a reasonably arguable case on legal as well as factual matters”. It will not be sufficient to merely assert a claim in an affidavit or pleading.
A court will conclude that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied if the court is satisfied on the evidence adduced that the refusal to make a freezing order would involve a real risk of such consequence. In Deputy Commissioner of Taxation v Hua Wang Bank Berhad Kenny J added:
The fact that assets within the jurisdiction are moveable, and that the respondent is incorporated outside the jurisdiction is not enough to warrant an inferential finding of danger of dissipation. Rather, there must be facts from which, to quote Lawton LJ in Third Chandris Shipping Corporation v Unimarine SA [1979] 1 QB 645 (Chandris) at 671 “a prudent, sensible commercial” person can “properly infer a danger of default if assets are removed from the jurisdiction”. In this connection, Lawton LJ also said (at 672):
In my judgment an affidavit in support of a Mareva injunction should give enough particulars of the plaintiff’s case to enable the court to assess its strength and should set out what inquiries have been made about the defendant’s business and what information has been revealed, including that relating to its size, origins, business domicile, the location of its known assets and the circumstances in which the dispute has arisen. These facts should enable a commercial judge to infer whether there is likely to be any real risk of default. Default is most unlikely if the defendant is a long established, well known foreign corporation or is known to have substantial assets in countries where English judgments can easily be enforced either under the Foreign Judgments (Reciprocal Enforcement) Act 1933 or otherwise. But if nothing can be found about the defendant, that in itself may be enough to justify a Mareva injunction.
See also Chandris at 669 per Lord Denning MR, Raukura Moana Fisheries Ltd v Ship “Irina Zharkikh” [2001] 2 NZLR 801 at 827 [122] per Young J, Hadid v Lenfest Communications Inc (1996) 67 FCR 446 at 449 per Lehane J, and Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 (Reches) at 518 per Lehane J. In Reches Lehane J declined to grant a Mareva injunction where the respondent, though a foreign corporation that would remove or deplete its sole asset in Australian in the ordinary course of business, was “a major and profitable corporation with very substantial assets”; there was nothing to suggest that the respondent was likely to default; and the respondent resided and principally carried on business in a jurisdiction where enforcement was possible under a reciprocal regime for the registration of judgments.
Further the relevant danger must be established by evidence and not merely asserted.
[Footnotes omitted.]
Wishford relied on the evidence contained in the affidavit of Thomas Michael Wake sworn 8 November 2019, save and except for paragraphs 85 to 107. Playford opposed the orders sought. It relied on the evidence contained in the eighth affidavit of Charles Liam McCusker affirmed 28 November 2019 and the second affidavit of Isabelle Olivia Russell affirmed 28 November 2019.
The starting point for consideration of Wishford’s application is that there is $1,077,813.28 in the Suitor’s Fund. Wishford submits that it is entitled to the sum of $392,801.42 paid into Court, being the proceeds of the 2018 vintage (constituting 756.88 tonnes of grapes at $510 per tonne), default interest in the sum of $43,767.05, its costs of the trial which it estimates at over $600,000, its costs of the appeal to the Full Court which it calculates to be an amount in excess of $100,000, an entitlement to the costs of Playford’s unsuccessful special leave application in an unspecified amount and an entitlement to damages flowing from the pruning and irrigation of the vines undertaking by Playford after it re-entered the vineyard in an amount in excess of $600,000. Wishford submits that these are claims for which it has a good arguable case. As Wishford’s claims for damages and costs are yet to be determined, I consider that the Court should take a cautious approach to the quantum of those claims in determining whether a good arguable case is established for the purpose of deciding an application for a freezing order.
Wishford points to the evidence that as at 30 June 2018 the balance sheet of Playford disclosed net assets of $3,255,918. On 4 July 2019 the vineyard was the subject of a mortgagee sale for $4,612,000. It appears that the proceeds of sale have been wholly distributed.
Playford opposes the application. It submits that the moneys in the Suitor’s Fund are more than adequate to satisfy any entitlement of Wishford and that the making of the freezing order sought by Wishford would not serve the purpose of preserving the status quo but would impermissibly advantage Wishford and disadvantage Playford.
Playford submits that it is at least arguable that Wishford will have no entitlement to the costs of the trial. It puts this argument on two bases: first, that Wishford failed on one of the two issues which went to trial, namely, whether it enjoyed an extant option to purchase the vineyard; and second, that by reason of the further claims it seeks to propound Wishford will be found liable to it for the costs of the trial. For the reasons already given refusing the application to amend, save and except for one matter, the second basis for Playford’s submission cannot be accepted. Further, the first basis is highly unlikely to result in the rejection of Wishford’s claim for costs of the trial given that the issue on which Playford succeeded and Wishford failed occupied much less of the Court’s time than the issue on which Wishford succeeded and Playford failed. Nonetheless, it must be accepted that the amount of any costs to which Wishford is entitled for the trial is speculative. The same point can be made in relation to its entitlement to costs of the Full Court appeal and the special leave application. However, I am prepared, for the purposes of this application, to accept that Wishford may be able to establish an entitlement to costs of the trial. Plainly it has an entitlement to the costs of the Full Court appeal and the special leave application. Adopting the cautious approach referred to earlier I would accept that these entitlements might be in the range of $400,000-$500,000.
Wishford contends that it has suffered a loss of $988,025 on the 2018 vintage as a result of the works undertaken or not properly undertaken by Playford upon its re-entry.[20] Wishford concedes however that this claim overlooks the 25 per cent seasonal reduction that was experienced at Ramco. That would reduce its claim for damages to an amount in the vicinity of $741,000. From this sum must be deducted the $392,801.42 that was paid into Court from the proceeds of the 2018 grape harvest. This results in a damages claim in the vicinity of $348,000.
[20] Exhibit TMW4 to the affidavit of Thomas Michael Wake sworn 8 November 2019.

In addition, there is no issue that Playford is liable to pay Wishford an amount of $43,767.05 in interest.
Accordingly, it can be seen that for the purposes of deciding the application for a freezing order I would assess Playford’s exposure to Wishford to be in the range of $1,184,000 to $1,284,000. This calculation of Playford’s potential liability in damages and costs fails to make any allowance for Playford’s defence that any loss suffered by Wishford was the result of its failure to properly irrigate and fertigate the vines.
A freezing order is an exceptional remedy. Its purpose is to preserve the status quo not to change it in favour of Wishford.[21] The application for a freezing order must be assessed against the background that there is nearly $1,078,000 held in the Suitor’s Fund. Clearly there is no danger that a prospective judgment and costs orders will be wholly unsatisfied.
[21] Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 403-404.
In the circumstances I am not satisfied that a freezing order is required to avoid the danger that a prospective judgment and costs orders will be partly unsatisfied. The amount in the Suitor’s Fund is approximately $100,000 less than the lower end of the range of Playford’s exposure to Wishford for damages and costs for which I consider there is a good arguable case. The upper end of that range is approximately $200,000 more than the amount in the Suitor’s Fund. However, the range that represents the good arguable case of Playford’s exposure does not reflect the possibility that Playford’s exposure might be reduced on the ground that Wishford’s loss was caused by its failure properly to fertigate and/or irrigate the vineyard. Further, it has not been established that Playford would not have the capacity to satisfy an exposure of up to $200,000 in excess of the amount in the Suitor’s fund. Indeed, the purpose of seeking a freezing order would be rendered otiose if Playford did not have that capacity. I note that from the proceeds of sale of the vineyard nearly $1,000,000 was paid to Playford. I do not accept that the evidence establishes that there is a danger that Playford may remove its assets from the State or dissipate them.[22] Wishford does not contend that there is any danger of Playford removing its assets from the State. The only evidence of Playford disposing of its assets that Wishford identifies is the sale of the vineyard, but Wishford has not established that the sale of the vineyard was contrived. There was a loan of $992,000 which was secured by a mortgage over the vineyard. There is no reason to reject the evidence that Playford found itself in a position where it was unable to repay the principal when it fell due.
[22] RTP Holdings Pty Ltd & Anor v Roberts & Ors (No. 2) [2000] SASC 390.
If circumstances change in the future it is open to Wishford to renew its application.
Conclusion
For these reasons I would dismiss the application for a freezing order. I would hear the parties as to costs.