Rail Plus Pty Ltd v Hee-Meng Ng - [2013] VSC 429

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2013 00548

RAIL PLUS AUSTRALASIA PTY LTD (ACN 081 473 172)	Applicant (Plaintiff)
v
HEE-MENG NG	First Respondent (Defendant)
and
MAI MOY NG	Second Respondent (Defendant)

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June, 11 July, 2 August 2013
DATE OF JUDGMENT:	22 August 2013
CASE MAY BE CITED AS:	Rail Plus Pty Ltd v Hee-Meng Ng and Another
MEDIUM NEUTRAL CITATION:	[2013] VSC 429

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INJUNCTIONS — Freezing orders against third party’s property — First respondent admitted debt — Likely bankruptcy of first respondent — Possible equitable interest of first respondent in property of third party — Possible action by trustee in bankruptcy against third party to recover first respondent’s property — Supreme Court (General Civil Procedure) Rules2005 r 37A.05.

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APPEARANCES:	Counsel	Solicitors
For the Applicant (Plaintiff)	Mr A Tragardh	Millens Pty Ltd
No appearance for the First Respondent (First Defendant)
For the Second Respondent (Second Defendant)	Mr T D Best	SDR Law

HIS HONOUR:

The second respondent (second defendant), Ms Mai Ng, applies to discharge assets held in her name from a freezing order made by the Court on 5 February 2013 and as subsequently varied.

The freezing order was made against Ms Mai Ng as a third party (or non-party) as she was not then a party to the proceeding. She has made previous unsuccessful applications to discharge the freezing order, but the applicant (plaintiff) did not suggest that this prevented this application being made.

The freezing order also bound and continues to bind the first respondent (first defendant) (Mr Meng Ng). He was not represented at the hearing and no application was made to vary the freezing order made against him.

Ms Mai Ng seeks to discharge all her assets that are covered by the freezing order. Those assets include a property at Glen Iris in which she lives, bank accounts, shares, investment accounts and superannuation benefits. The Glen Iris property is valued at approximately $900,000 at least, shares are valued at about $355,000, there is $59,000 cash in bank accounts, there are superannuation entitlements of $337,000 and there is a credit balance in an AMP investment plan of $31,000. There is a mortgage securing a sum of about $50,000 over the property.

Rail Plus did not seek to justify the continuance of a freezing order that applied to all Ms Mai Ng’s assets, but only to those parts of the assets in which it contends that Mr Meng Ng has an interest. The parties made submissions on the basis that Ms Mai Ng should still be regarded as a third party, presumably because she had that status when the order of 5 February 2013 was made.

Mr Meng Ng was employed by the applicant (Rail Plus) as an accountant and then as a director and secretary. He was dismissed for dishonesty in December 2012.

Rail Plus commenced this proceeding seeking the sum of…

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.

Continue reading Rail Plus Pty Ltd v Hee-Meng Ng

Details

AGLC: Rail Plus Pty Ltd v Hee-Meng Ng [2013] VSC 429
Case: [2013] VSC 429
Decision Date: 22 August 2013

CaseChat Overview and Summary

Rail Plus Pty Ltd sued Hee-Meng Ng and others, seeking freezing orders against a third party's property. The primary dispute involved whether Rail Plus was entitled to such orders due to Ng's admission of a debt, the possibility of Ng's bankruptcy, and a potential equitable interest Ng might have in the third party's property. The court had to determine if there were sufficient grounds for the freezing orders under the Supreme Court (General Civil Procedure) Rules 2005.

The court examined whether the circumstances justified the freezing orders. It considered Ng's admission of debt, the risk of Ng becoming bankrupt, and whether Ng had an equitable interest in the third party's property that could be claimed by a trustee in bankruptcy. The court also assessed if the orders were necessary to prevent the dissipation of assets that could otherwise be recovered.

The court ruled that the circumstances did not justify the freezing orders. It concluded that there was no sufficient evidence of an equitable interest in the third party's property that would warrant such action. Furthermore, the court found that the mere risk of Ng's bankruptcy and the admission of debt did not, on their own, establish a compelling case for the orders. The court held that the application for freezing orders was not substantiated.

In its final orders, the court dismissed Rail Plus's application for freezing orders. The court determined that the application did not meet the stringent criteria required under the rules, and there was insufficient evidence to support the granting of such orders.

Orders