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

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.

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.
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.
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.

CaseChat Overview and Summary

In the matter of Southern Equities Corporation Ltd (in Liq) & Ors v Bond & Ors (No 6), the defendants Craig David Bond, Delores Jean Caboche, and John Bryan Bond have applied for leave to appeal against a decision made by Debelle J. The primary dispute revolves around an order that required the defendants to file an affidavit disclosing their assets. The plaintiffs had previously been granted a Mareva order against certain individuals, which restrained the disposal of their assets. However, this order did not apply to the defendants in question. Despite this, the court ordered the defendants to disclose their assets, and they now challenge the legality of this order.

The central legal issue before the court was whether a court can lawfully order the disclosure of assets without concurrently issuing a Mareva order that restrains the disposal of those assets. The defendants argued that such an order is beyond the court's jurisdiction if no restraining order is in place. This argument hinges on the principle that disclosure orders are typically ancillary to Mareva orders, which directly address the risk of asset dissipation. The defendants cited several precedents where asset disclosure orders were made in conjunction with Mareva orders, but no clear authority existed for making such orders independently.

Debelle J concluded that while there are precedents supporting the making of asset disclosure orders as ancillary to Mareva orders, there is no direct authority on the issue of ordering asset disclosure in the absence of a restraining order. The court found the issue to be of significant public importance and one that required clarification. Given the lack of clear authority and the potential for substantial legal implications, Debelle J deemed it appropriate to grant leave to appeal. This decision ensures that the issue of the court's jurisdiction to order asset disclosure independently can be thoroughly examined at a higher judicial level.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established