Reid v Hubbard Summary

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5682 of 2002

SUSAN REID & ANOR	Plaintiffs
V
JOHN HAROLD HUBBARD	Defendant

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JUDGE:	BEACH J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 December 2002
DATE OF JUDGMENT:	17 December 2002
CASE MAY BE CITED AS:	Reid & Anor v Hubbard
MEDIUM NEUTRAL CITATION:	[2002] VSC 590

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APPLICATION to vary Mareva injunction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C.M. Molyneux Q.C. with Mr D.J. Batt	Marshall & Dent
For the Defendant	Mr A.T. Schlicht with Ms M. Hannan	Strongman & Crouch

HIS HONOUR:

I do not propose to trouble you Ms Molyneux. I do not propose to re-state my findings which I made when I dealt with the plaintiff's original application for a mareva injunction on 4 June last, save to remind the court that at the hearing on that day the defendant's then counsel conceded that there had been reprehensible conduct on the part of the defendant up to February of this year, conduct which could not be justified, and one could not but agree more.

Since my order of 4 June it has become clear that the large sum of money of the order of $6 million which the defendant advanced to the companies controlled by his wife, and from whom he is now separated, which I shall simply refer to as Billingsby, has been lost to the trust. So, rather than there be a sum of the order of $5 million to $6 million in the plaintiff's fund, as was the wish of the late father of the plaintiff and the defendant, if my calculations are anything like accurate, the sum which will ultimately become available in the trust to be invested for the benefit of the parties will, in all probability, be less than $2 million.

Not only, of course, did the defendant make the unsecured loans he did to Billingsby, he also arranged for Billingsby to obtain an advance of $600,000 from the ANZ Bank, such advance being secured by a first mortgage over the defendant's own property at 1 Seymour Grove, Brighton. What the defendant swore in his first affidavit of 3 June 2002 in relation to that property, was, in my opinion, calculated to mislead the court as to the true situation concerning it. I quote from that affidavit:

"13. I am the sole registered proprietor of a residential property at 1 Seymour Grove, Brighton. I live at that property with my three sons. I have taken no steps to sell the property or to otherwise assign, transfer, deal with, encumber, secure, dispose of or dissipate my interest in that property".

We now know, of course, that in March of 2002 the defendant mortgaged that property to the ANZ Bank for the purpose of securing the $600,000 loan to Billingsby. I should add, all loans made by the defendant to Billingsby are unsecured.

The defendant's behaviour to date in relation to his financial affairs has been such that I have no confidence that he has made a full disclosure of his assets to the court; nor do I have any evidentiary material to demonstrate what actually became of the large sums of money advanced to Billingsby. In that situation, I am not persuaded that it is appropriate to make any variation to the order of 4 June 2002 and the defendant's application in that regard is dismissed.

I order that the defendant pay the plaintiff's costs of the application including any reserve costs.

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In the case of Reid v Hubbard, the respondent applied to the court to vary a Mareva injunction. The respondent had previously obtained an injunction against the applicant to prevent the applicant from disposing of assets. The applicant, now seeking to vary the injunction, argued that the injunction was too broad and was causing significant financial hardship. The court was tasked with determining whether the injunction should be varied to allow the applicant to access certain assets.

The primary legal issue before the court was whether the Mareva injunction should be varied to permit the applicant to access certain specified assets. The court had to consider the balance of convenience and whether the applicant could demonstrate that the injunction was causing undue hardship. The court also needed to assess whether the variation would prejudice the respondent's rights and whether there were adequate safeguards to ensure that the applicant would not dissipate their assets.

The court considered the evidence presented by both parties and the principles governing Mareva injunctions. The court found that the applicant had not demonstrated that the injunction was causing undue hardship or that the variation was necessary in the balance of convenience. The court held that the applicant had not provided sufficient evidence to show that the variation would not prejudice the respondent's rights. The court concluded that the Mareva injunction should not be varied, as the applicant had not met the necessary threshold. The court maintained the injunction in its original form, with no variation allowed.

The court ordered that the Mareva injunction remain in force, with the applicant not permitted to access the specified assets. The court directed the parties to continue with the existing terms of the injunction and to refrain from any actions that would contravene the order.

Reid v Hubbard

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established