Price v Price

[2000] VSC 389

SUPREME COURT OF VICTORIA          

Not Restricted

PRACTICE COURT

No. 18 of 2000

WAYNE PRICE	Plaintiff
v
ERIC NEIL PRICE and OTHERS	Defendants

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JUDGE:	Eames J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2000
DATE OF JUDGMENT:	18 September 2000
CASE MAY BE CITED AS:	Price v Price and Others
MEDIUM NEUTRAL CITATION:	[2000] VSC 389

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Injunction - Mareva order - Restraint on delivery or disposition of proceeds of fire policy of insurance over premises on property to which title is disputed - cause of action - real risk of frustration of judgment - balance of convenience.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Hutchinson	Saines & Partners
For the Defendants

HIS HONOUR:

1. This is an application brought as a matter of urgency for an interim injunction in the nature of Mareva orders to restrain the second-named defendant in action No.18 of 2000, being proceedings in which Wayne Price is plaintiff, his brother Eric Neil Price is the first defendant and Bede Price the second defendant, and a solicitor, Rhonda Wilkinson, the third defendant. 

1. The application is to restrain the second-named defendant, but also to restrain a body which is not party to the action, AMP General Insurance Limited, with respect to the payment by cheque of the proceeds of a policy of insurance on a property which is the subject of dispute as to beneficial ownership in those proceedings.  I have been advised that the writ in the proceedings was issued out of the Ballarat Registry on what appears to be 8 September 2000 but has not yet been served, although informal notice has been given to some at least of the relevant parties, and also to the AMP General Insurance Limited.

1. The application before me as to there being a serious question to be tried is supported by copies of affidavit material, including affidavits of Ronald Norman Saines, the solicitor for the plaintiff, those affidavits dated 12 September and 18 September 2000, together with exhibits.  Among the matters exhibited is the proposed statement of claim in those proceedings, and in the circumstances it is not necessary that I detail the facts of the case in any detail.  The issues are fully set out in that material.  I should note the material that I am considering is photocopy, because the original court file is being transmitted between Ballarat and Melbourne and has apparently not yet arrived, but the court in Ballarat, I gather, has provided photocopies of the relevant material and I am satisfied all of these affidavits have been sworn and will in fact be served, or at least service will be attempted of all relevant documents, including the writ and a summons in this matter seeking the relief now sought which is returnable on 29 September 2000. 

1. Having heard the submissions by Mr Hutchinson of counsel for the plaintiff, I am satisfied that there is a serious question to be tried, and there is a real risk that unless restrained the second-named defendant would dispose of the proceeds of the insurance policy thus frustrating any remedy which the plaintiff might later obtain.  At least on the material so far there is certainly sufficient to justify an interim injunction, and I am satisfied that the balance of convenience, at this ex parte stage, justifies the making of an order so that the matter can be brought before the court on that date.  The plaintiffs giving, through their counsel, undertakings to abide by any order that the court or a judge may make as to damages, in case the court or a judge might hereafter be of opinion that the defendants, or any of them, or AMP General Insurance Limited shall have sustained any by reason of this order which the plaintiff ought to pay, upon those undertakings as to damages, I make the following orders:

1.That pursuant to the provisions s.37 of the Supreme Act and/or pursuant to the provisions of Orders 37 and/or 38 of the Rules of the Court, AMP General Insurance Limited be restrained from paying over funds to the second-named defendant, being the proceeds of policy of insurance No. 2-Y051353T, payable in respect of fire damage to dwelling and contents of property at Colliers' Gap Road, Eversleigh, also known as Ben Nevis Road, Elmhurst, in the State of Victoria, pending final orders being made in this action; and that, further, AMP General Insurance Limited cancel forthwith any cheque drawn in favour of the second-named defendant with respect to the said policy of insurance.

2.That further or in the alternative, pursuant to the provisions of s.37 of the Supreme Court Act and/or pursuant to the provisions of Orders 37 and/or 38 of the Rules of the Court, the second-named defendant be restrained from disposing of property, being the proceeds of policy of insurance No. 2-Y051353T received or to be received from AMP General Insurance Limited pending final orders of the court in this action.

1. I will reserve the question of costs of this application.

1. I will note in the "Remarks" column that the plaintiff proposes to effect service of the writ and summons together with supporting affidavits herein to the effect that it is possible to achieve service as soon as possible prior to the return date of 29 September 2000.

1. Pursuant to Rule 60.04, I order that this order be drawn up by the plaintiff to be signed by a judge.

1. For the benefit of the transcript, I note that the terms of the orders which I just read out are contained in the main in the summons in this action, or copy summons, which we have.

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