Rafferty v Time 2000 West Pty Ltd (No 9)

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FEDERAL COURT OF AUSTRALIA

Rafferty v Time 2000 West Pty Ltd (No 9) [2011] FCA 1483

Citation: Rafferty v Time 2000 West Pty Ltd (No 9)
[2011] FCA 1483
Parties: PATRICK CAMPBELL RAFFERTY, SANTORA HOLDINGS PTY LIMITED ACN 128 467 550 and KARAVILLE HOLDINGS PTY LIMITED ACN 009 439 178 v TIME 2000 WEST PTY LIMITED ACN 127 893 270, TIME 2000 SYSTEMS (AUSTRALIA) PTY LIMITED ACN 127 853 614, TIME 2000 OPERATIONS (AUSTRALIA) PTY LIMITED 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 December 2011
Catchwords: PRACTICE AND PROCEDURE – judgments and orders – freezing order – application for variation of orders – whether orders should be varied – whether variation would defeat purpose of orders
Cases cited:

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 cited

Dwyer v Ross (1992) 34 FCR 463 considered
R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 cited
Rafferty v Time 2000 West Pty Limited (No 2) [2008] FCA 1931 cited

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

Date of hearing: 7 and 9 December 2011
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 73
Counsel for the Applicants: Mr D Whitington QC with Mr A Rosser
Solicitor for the Applicants: Cosoff Cudmore Knox
Counsel for Gemhall Holdings Pty Ltd: Mr A Lazarevich
Solicitor for Gemhall holdings Pty Ltd: Pace 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 LIMITED ACN 128 467 550
Second Applicant

KARAVILLE HOLDINGS PTY LIMITED ACN 009 439 178
Third Applicant
AND:

TIME 2000 WEST PTY LIMITED ACN 127 893 270
First Respondent

TIME 2000 SYSTEMS (AUSTRALIA) PTY LIMITED ACN 127 853 614
Second Respondent

TIME 2000 OPERATIONS (AUSTRALIA) PTY LIMITED ACN 128 700 541
Third Respondent

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

STEPHEN GERARD DONOVAN
Fifth Respondent

MADGWICKS
Sixth Respondent

JUDGE:

LANDER J

DATE OF ORDER:

21 DECEMBER 2011

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.That paragraph 5 of the orders made by Justice Besanko on 19 December 2008 be varied as set out in paragraph 2 of this order, but otherwise remain in full force and effect.

2.Until further order, the fifth respondent and Kamila Joanna Donovan, be restrained from:

2.1causing or permitting, whether directly or indirectly, any dealing with the shares held by any person in Gemhall Holdings Pty Limited;

2.2causing or permitting, whether directly or indirectly, the appointment of any other person as a director of Gemhall Holdings Pty Limited;

2.3causing or permitting, whether directly or indirectly, any change to the trusts, powers, terms or conditions of the Stephen Donovan Family Trust, being the trust established by deed dated 6 April 1994 made between Bruce Heaney and Gemhall Holdings Pty Limited;

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Details
Case
[2011] FCA 1483
Decision Date

CaseChat Overview and Summary

The case of Rafferty v Time 2000 West Pty Ltd (No 9) was heard in the Federal Court of Australia. The primary dispute involved an application for variation of a freezing order, which had been previously issued by Justice Besanko on 19 December 2008. The applicant, Rafferty, sought changes to the existing orders to better protect their interests, while the respondents argued against any variation, asserting it would undermine the original purpose of the orders.

The legal issues before the court included whether the existing freezing orders should be altered and, if so, to what extent. Additionally, the court had to consider whether any variation would defeat the purpose of the orders, as argued by the respondents. The applicant's application was for a specific variation to paragraph 5 of the original orders, while the respondents contended that such a change would jeopardise the integrity and effectiveness of the injunctions already in place.

The court deliberated on the necessity of maintaining the integrity of the original orders while also acknowledging the applicant's need for enhanced protections. Ultimately, the court found that a limited variation to paragraph 5 of the orders was warranted, but the remainder of the original orders should remain unchanged. The court concluded that this variation would not undermine the primary objectives of the freezing orders, thus upholding their overall efficacy.

The final orders were that paragraph 5 of the orders made by Justice Besanko on 19 December 2008 be varied as specified, but the rest of the orders remain in full force and effect. The respondents and Kamila Joanna Donovan were restrained from various activities concerning the shares, directors, trust, and company documents, as outlined in the detailed provisions of the orders.

Orders

Orders of the court

1. That paragraph 5 of the orders made by Justice Besanko on 19 December 2008 be varied as set out in paragraph 2 of this order, but otherwise remain in full force and effect.

2. Until further order, the fifth respondent and Kamila Joanna Donovan, be restrained from:

2.1 causing or permitting, whether directly or indirectly, any dealing with the shares held by any person in Gemhall Holdings Pty Limited;

2.2 causing or permitting, whether directly or indirectly, the appointment of any other person as a director of Gemhall Holdings Pty Limited;

2.3 causing or permitting, whether directly or indirectly, any change to the trusts, powers, terms or conditions of the Stephen Donovan Family Trust, being the trust established by deed dated 6 April 1994 made between Bruce Heaney and Gemhall Holdings Pty Limited;

2.4 causing or permitting, whether directly or indirectly, the appointment of any person or entity other than Gemhall Holdings Pty Limited as the Trustee, or any change of the Trustee, of the Stephen Donovan Family Trust;

2.5 causing or permitting, whether directly or indirectly, any other person to hold the position of Appointor (as that term is defined in the Stephen Donovan Family Trust) or to exercise any of the powers which might be exercisable by the Appointor so defined; and

2.6 causing or permitting, whether directly or indirectly, any amendment, addition, deletion or change of any kind to the Memorandum and Articles of Association of Gemhall Holdings Pty Limited.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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