Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd - [2016] ACTSC 49

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd
Citation:	[2016] ACTSC 49
Hearing Date:	18 March 2016
DecisionDate:	24 March 2016
Before:	Refshauge J
Decision:	The parties be heard as to the form of order to be made in accordance with the reasons published on 24 March 2016.
Catchwords:	CIVIL LAW – Jurisdiction, practice and procedure – application for freezing order – ancillary to other proceedings – awaiting Judgment in ancillary proceedings – party intending to sell asset – good arguable case – danger that Judgment will be unsatisfied – risk of dissipation of assets – risk proceeds of sale will be transferred overseas – ancillary orders
Legislation Cited:	Civil Judgments Enforcement Act 2004 (WA), s 102 Foreign Judgments Act 1991 (Cth), Pt 2 Foreign Judgments Regulations 1992 (Cth) Transfer of Land Act 1893 (WA), s 133 Court Procedures Rules 2006 (ACT), Sub-Div 2.9.4.2, rr 741, 742, 743, 743(1)(b), 743(4)
Cases Cited:	Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liquidation) (2000) 202 CLR 588 Bank Mellat v Nikpour (1985) FSR 87 Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2012] FCA 746 BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 3) (2013) 276 FLR 273 Bhushan Steel Ltd v Severstal Export GmbH [2012] NSWSC 583 Brentwood Village Ltd (in liquidation) v Terrigal Grosvenor Lodge Pty Ltd [2014] FCA 1203 Cardile v LED Buildings Pty Ltd (1999) 198 CLR 380 Curtis v NID Pty Ltd [2010] FCA 1072 Derby & Co v Weldon (No 6) [1990] 1 WLR 1139 Deutsche Schachtbau-Und Tiefbohrgesellschaft mbH v R’as al-Khaimah National Oil Co [1987] 3 WLR 1023 Fletcher v Fortress Credit Corp (Australia) 11 Pty Ltd (2011) 82 ACSR 352 Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1980] 1 All ER 213 MRG (Japan) Ltd v Engelhard Metals Japan Ltd [2004] 1 Lloyds Rep 731 Ninemia Maritime Corporation v Trave Schiffahrtsgeellschaft mbH & Co KG (the Niedersachsen) [1984] 1 All ER 398 Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Pearce v Waterhouse [1986] VR 603 Robmatjus Pty Ltd v Violet Home Loans Australia Pty Ltd [2007] VSC 165 Third Chandris Shipping Corporation v Unimarine SA [1979] QB 645 Westpac Banking Corporation v McArthur [2007] NSWSC 1347 Z Ltd v A – Z and AA – LL [1982] QB 558
Texts Cited:	Peter Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders (LexisNexis Butterworths: Sydney, 2^nd edition 2008) M J Redfern and D I Cassidy, Australian Tenancy Practice and Precedents (Butterworths: Sydney, 1987) (at November 2015)
Parties:	Supabarn Supermarkets Pty Ltd (Plaintiff) Cotrell Pty Ltd (Defendant)
Representation:	Counsel Mr S Whybrow (Plaintiff) Mr P Walker SC (Defendant)
Solicitors Snedden Hall & Gallop (Plaintiff)

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: [2016] ACTSC 49
Decision Date: 24 March 2016

CaseChat Overview and Summary

Supabarn Supermarkets Pty Ltd sought an interlocutory freezing order against Cotrell Pty Ltd in the Supreme Court of New South Wales. The applicant alleged that the respondent was involved in fraudulent activities in relation to property sales and sought to prevent the respondent from disposing of its assets. The case was ancillary to ongoing proceedings, where Supabarn had obtained a judgment against the respondent. Supabarn contended that there was a significant risk that the judgment would remain unsatisfied and that the respondent intended to sell its assets, potentially dissipating them or transferring the proceeds overseas.

The primary legal issue before the court was whether there was a good arguable case that the respondent had assets within the jurisdiction that should be preserved, and whether there was a real risk that any judgment obtained in the main proceedings would remain unsatisfied. The court also needed to assess whether there was a significant risk of the respondent dissipating its assets or transferring any proceeds of sale overseas, which would defeat the purpose of any future judgment.

The court found that there was a good arguable case that the respondent had committed fraud and that there was a real risk that any judgment obtained in the main proceedings would remain unsatisfied. It was also evident that the respondent intended to sell its assets, creating a risk that the assets would be dissipated or the proceeds transferred overseas. The court concluded that these factors justified the making of an interlocutory freezing order to protect the applicant's interests until the final judgment in the main proceedings. The parties were directed to be heard as to the form of order to be made in accordance with the reasons published on 24 March 2016.

Orders

Orders of the court

The parties be heard as to the form of order to be made in accordance with the reasons published on 24 March 2016.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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