Rafferty v Time 2000 West Pty Ltd (No 7) - [2011] FCA 405

FEDERAL COURT OF AUSTRALIA
Rafferty v Time 2000 West Pty Ltd (No 7) [2011] FCA 405

Citation: Rafferty v Time 2000 West Pty Ltd (No 7)
[2011] FCA 405

Parties: PATRICK CAMPBELL RAFFERTY, SANTORA HOLDINGS PTY LTD ACN 128 467 550 and KARAVILLE HOLDINGS PTY LTD ACN 009 439 178 v TIME 2000 WEST PTY LTD ACN 127 893 270, TIME 2000 SYSTEMS (AUSTRALIA) PTY LTD ACN 127 853 614, TIME 2000 OPERATIONS (AUSTRALIA) PTY LTD ACN 128 700 541, EMBLETON LIMITED (A COMPANY INCORPORATED IN HONG KONG), STEPHEN GERARD DONOVAN and MADGWICKS

File number: SAD 122 of 2008

Judge: LANDER J

Date of judgment: 21 April 2011

Catchwords: PRACTICE AND PROCEDURE – freezing order – application to discharge freezing order by non-party –whether the circumstances have changed such that the freezing order ought to be discharged – whether there still exists a danger that the judgment will be wholly or partly unsatisfied – the degree of satisfaction required before the Court makes freezing order.

Legislation: Bankruptcy Act 1966 (Cth) ss 40, 43, 58
Federal Court Rules O 25A

Cases cited: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 cited
Groeneveld Australia Pty Ltd v Nolten Vastgoed BV and Chris Nolten [2011] VSC 18 considered
Robmatjus Pty Ltd v Violet Home Loans (2007) VSC 165 referred to

Date of hearing: 31 March 2011

Date of last submissions: 30 March 2011

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 74

Counsel for the Applicants: Mr A Rosser

Solicitor for the Applicants: Cosoff Cudmore Knox

Counsel for Gemhall Holdings Pty Ltd: Mr A Lazaravich

Solicitor for Gemhall Holdings Pty Ltd: O’Loughlins Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 122 of 2008

BETWEEN:
PATRICK CAMPBELL RAFFERTY
First Applicant

SANTORA HOLDINGS PTY LTD ACN 128 467 550
Second Applicant

KARAVILLE HOLDINGS PTY LTD ACN 009 439 178
Third Applicant

AND:
TIME 2000 WEST PTY LTD ACN 127 893 270
First Respondent

TIME 2000 SYSTEMS (AUSTRALIA) PTY LTD
ACN 127 853 614
Second Respondent/Second Cross Claimant

TIME 2000 OPERATIONS (AUSTRALIA) PTY LTD
ACN 128 700 541
Third Respondent/Third Cross Claimant

EMBLETON LIMITED (A COMPANY INCORPORATED IN HONG KONG)
Fourth Respondent/Fourth Cross Claimant

STEPHEN GERARD DONOVAN
Fifth Respondent/First Cross Claimant

MADGWICKS
Sixth Respondent/Cross Respondent

JUDGE:

LANDER J

DATE OF ORDER:

21 APRIL 2011

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.Paragraph 3 of Gemhall Holdings Pty Ltd’s notice of motion of 10 November 2010 to revoke the orders made by Besanko J on 19 December 2008 and varied by Besanko J on 31 August 2010 and Lander J on 15 November 2010, 22 November 2010, 15 February 2011 and 23 February 2011 be dismissed.
2.Gemhall Holdings Pty Ltd pay the applicants’ costs of the application since 17 March 2011 and the hearing of 31 March 2011.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on…

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: [2011] FCA 405
Decision Date: 21 April 2011

CaseChat Overview and Summary

Rafferty and another v Time 2000 West Pty Ltd (No 7) involved a dispute over the discharge of a freezing order. Rafferty and another were the applicants seeking to maintain the freezing order, while Time 2000 West Pty Ltd was the company subject to the order. Gemhall Holdings Pty Ltd, which was not a party to the original dispute, applied to discharge the freezing order. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the circumstances had changed to such an extent that the freezing order should be discharged. The court also needed to determine whether there was still a danger that the judgment would be wholly or partly unsatisfied, and the degree of satisfaction required before the court would make a freezing order. Specifically, the court had to assess whether the applicants had provided sufficient evidence to maintain the freezing order, and whether Gemhall Holdings Pty Ltd had demonstrated that the order should be discharged.

The court found that the applicants had provided adequate evidence to maintain the freezing order. The court determined that there was still a danger that the judgment would be wholly or partly unsatisfied, and that the degree of satisfaction required was not met. The court rejected Gemhall Holdings Pty Ltd’s application to discharge the freezing order and dismissed their notice of motion. Additionally, the court ordered Gemhall Holdings Pty Ltd to pay the applicants’ costs of the application since 17 March 2011 and the hearing of 31 March 2011.

In summary, the court held that the freezing order should remain in place as there was still a risk of unsatisfied judgment, and dismissed Gemhall Holdings Pty Ltd’s application to discharge it. The court also ordered Gemhall Holdings Pty Ltd to pay the applicants’ costs from certain dates.

Orders

Orders of the court

1. Paragraph 3 of Gemhall Holdings Pty Ltd’s notice of motion of 10 November 2010 to revoke the orders made by Besanko J on 19 December 2008 and varied by Besanko J on 31 August 2010 and Lander J on 15 November 2010, 22 November 2010, 15 February 2011 and 23 February 2011 be dismissed.

2. Gemhall Holdings Pty Ltd pay the applicants’ costs of the application since 17 March 2011 and the hearing of 31 March 2011.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Rafferty v Time 2000 West Pty Ltd (No 7) [2011] FCA 405
Parties:		PATRICK CAMPBELL RAFFERTY, SANTORA HOLDINGS PTY LTD ACN 128 467 550 and KARAVILLE HOLDINGS PTY LTD ACN 009 439 178 v TIME 2000 WEST PTY LTD ACN 127 893 270, TIME 2000 SYSTEMS (AUSTRALIA) PTY LTD ACN 127 853 614, TIME 2000 OPERATIONS (AUSTRALIA) PTY LTD ACN 128 700 541, EMBLETON LIMITED (A COMPANY INCORPORATED IN HONG KONG), STEPHEN GERARD DONOVAN and MADGWICKS
File number:		SAD 122 of 2008
Judge:		LANDER J
Date of judgment:		21 April 2011
Catchwords:		PRACTICE AND PROCEDURE – freezing order – application to discharge freezing order by non-party –whether the circumstances have changed such that the freezing order ought to be discharged – whether there still exists a danger that the judgment will be wholly or partly unsatisfied – the degree of satisfaction required before the Court makes freezing order.
Legislation:		Bankruptcy Act 1966 (Cth) ss 40, 43, 58 Federal Court Rules O 25A
Cases cited:		Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 cited Groeneveld Australia Pty Ltd v Nolten Vastgoed BV and Chris Nolten [2011] VSC 18 considered Robmatjus Pty Ltd v Violet Home Loans (2007) VSC 165 referred to
Date of hearing:	31 March 2011
Date of last submissions:	30 March 2011
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	74
Counsel for the Applicants:	Mr A Rosser
Solicitor for the Applicants:	Cosoff Cudmore Knox
Counsel for Gemhall Holdings Pty Ltd:	Mr A Lazaravich
Solicitor for Gemhall Holdings Pty Ltd:	O’Loughlins Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 122 of 2008

JUDGE:	LANDER J
DATE OF ORDER:	21 APRIL 2011
WHERE MADE:	ADELAIDE