Redwin Industries Pty Ltd v Feetsafe Pty Ltd - [2002] VSC 427

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8291 of 2001

REDWIN INDUSTRIES PTY LTD (ACN 086 450 473)	Plaintiff
v
FEETSAFE PTY LTD (ACN 092 523 389) AND MICHAEL PATRICK MCDONNELL	Defendants
AND BETWEEN
FEETSAFE PTY LTD (ACN 092 523 389)	Plaintiff by Counterclaim
v
REDWIN INDUSTRIES PTY LTD (ACN 086 450 473)	Defendant to Counterclaim

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January and 1 February 2002
DATE OF JUDGMENT:	10 October 2002
CASE MAY BE CITED AS:	Redwin Industries Pty Ltd v Feetsafe Pty Ltd
MEDIUM NEUTRAL CITATION:	[2002] VSC 427

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INJUNCTIONS – Application for discharge of asset preservation order - Failure to make to full and fair disclosure of material facts on ex parte application – Whether that failure tainted interlocutory order made on second occasion when defendant did not appear – Whether interlocutory order could be set aside in any event – Rule 46.08 of the Supreme Court Rules – Order discharged – No basis for making fresh asset preservation order – Inquiry as to damages – Whether delay precluded order for inquiry.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms L Hannon	Keith R Cameron
For the Defendants	Mr DT Forbes	Zolis Barristers & Solicitors

HIS HONOUR:

The Application

This is an application by the firstnamed defendant, Feetsafe Pty Ltd ("Feetsafe"), by summons dated 18 January 2002, for orders that the asset preservation order[1], constituted by orders made by the Magistrates' Court at Melbourne on 29 March and 2 April 2001, in proceeding P00651416, be dissolved and that there be an inquiry as to the damages suffered by Feetsafe as a result of the asset preservation order.
[1]The origin of this terminology for a Mareva type injunction or order is to be found in Cardile v Led Builders Pty Ltd (1999) 198 CLR 380 at 393 per Gaudron, McHugh, Gummow and Callinan JJ and at 411-2 per Kirby J and Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435.

The Background

The application came before me in the following way. On 29 March 2001, the plaintiff, Redwin Industries Pty Ltd ("Redwin"), commenced proceeding P00651416 in the Magistrates' Court at Melbourne claiming the sum of $33,273.20 ("the debt") from Feetsafe for "product … duly manufactured by the plaintiff and in part delivered to the firstnamed defendant or held in the warehouse of the plaintiff" (paragraph 4 of the Particulars of Claim), and from the secondnamed defendant ("McDonnell") "pursuant to a Director's Guarantee he executed on the 19 July 2000" (paragraph 6 of the Particulars of Claim).

By summons dated 29 March 2001, addressed only to the firstnamed defendant, Redwin made "an ex parte application … for an urgent interim injunction." The application was supported by two affidavits, both sworn on 29 March 2001, one by Ian Douglas Travers, the General Manager of Redwin ("Travers' supporting affidavit") and one by Keith Ross Cameron, the solicitor acting for Redwin ("Cameron's supporting affidavit").…

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: [2002] VSC 427
Decision Date: 10 October 2002

CaseChat Overview and Summary

The parties in Redwin Industries Pty Ltd v Feetsafe Pty Ltd were Redwin Industries, the plaintiff, and Feetsafe Pty Ltd, the defendant. Redwin Industries sought to discharge an asset preservation order previously made against Feetsafe. The dispute centred on the legality of the order, which was issued after an ex parte application by Redwin Industries. The case was heard in the Supreme Court.

The court had to determine whether the failure of Feetsafe to make full and fair disclosure of material facts during the ex parte application tainted the interlocutory order made on the second occasion when Feetsafe did not appear. Additionally, the court considered whether the interlocutory order could be set aside even if the initial failure to disclose did not invalidate it. This involved an examination of Rule 46.08 of the Supreme Court Rules.

The court found that the failure to disclose material facts did taint the interlocutory order. Consequently, the order was discharged as there was no basis for making a fresh asset preservation order. The court also considered whether to grant an order for an inquiry into damages but concluded that the delay in making the application precluded such an order. The Supreme Court thus decided in favour of Redwin Industries, discharging the asset preservation order and declining to order an inquiry into damages.

Orders