Southern Equities Corporation Ltd (in Liq) v Bond (No 6) No. Scgrg-96-113

[2000] SASC 403

SOUTHERN EQUITIES CORPORATION LTD (IN LIQ) & ORS v BOND & ORS (NO 6)
[2000] SASC 403

Application for Leave to Appeal

1................ DEBELLE J...... On 14 September 2000 I granted the plaintiffs’ application for a Mareva order against certain persons not parties to the action.  I also ordered that the defendants, Craig David Bond, Delores Jean Caboche and John Bryan Bond, file an affidavit disclosing their assets.  It was implicit in the making of the latter order that I believed that the power of the court to make a Mareva order extended to making an order requiring the disclosure of assets notwithstanding that the plaintiffs did not at that stage seek an order against a person ordered to file the affidavit restraining disposal of any assets of that person.

1. The above defendants have filed a notice of appeal against the order I made requiring them to file an affidavit disclosing their assets.  They assert that there is no power to make such an order in circumstances where no order restraining the disposal of assets had been made.  There is a question whether they need leave to appeal.  Out of an abundance of caution, they apply for leave.

2. Although there are a number of decisions which have examined whether affidavits disclosing assets may be ordered as an ancillary order to assist the enforcement of an order restraining disposal of assets and such orders have been made as an ancillary order to an order restraining the disposal of assets: see, for example, A J Bekhor & Co Ltd v Bilton [1981] 1 QB 923; Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) 1 NSWLR 155; Ausbro Forex Pty Ltd v Mare (1986) 4 NSWLR 419; and  Yandil Holdings Pty Ltd v Insurance Co of North America (1987) 7 NSWLR 571, there is not, so far as I know, any decision where an order requiring disclosure of assets has been made in absence of an order restraining disposal of assets. In Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622 – 623, Deane J spoke of the power of the court to make orders requiring disclosure of assets but His Honour did not have to address the issue the defendants now raise. In Gidrxslme Shipping Co v Tantomar-Transportes Maritomos Lda [1995] 1 WLR 299, an order was made requiring disclosure of assets outside the jurisdiction where there was no order restraining disposal of such assets but there was in existence an order restraining disposal of assets within the jurisdiction. The jurisdictional basis for making ancillary disclosure orders was discussed by Austin J in Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538 at 543 – 545. However, His Honour was not required to address this particular issue.

3. The issue is not settled.  The issue is one which raises a question of general principle of sufficient public importance to warrant a grant of leave to appeal.  I think it is appropriate, therefore, to grant to each of the defendants leave to appeal.