Thompson Brindal Ltd v Hamish Boyd McLachlan

[1997] FCA 675

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY ) SG 48 OF 1997

)

GENERAL DIVISION )

BETWEEN: THOMPSON BRINDAL LIMITED

(ACN 008 176 163)

Applicant

AND: HAMISH BOYD McLACHLAN

Respondent

JUDGE: MANSFIELD J

PLACE: ADELAIDE

DATED: 4 JULY 1997

REASONS FOR DECISION

This matter came before me on Friday last, 27 June 1997, on an ex parte basis for an order in the nature of the Mareva order against the respondent and, on that occasion, I made an order which expires at five o'clock today. It was a limited order directed to certain property in the name of the respondent. The application has now been pursued, as was contemplated when the interim order was made last week, on an inter partes basis.

I have heard the submissions of counsel for the applicant and for the respondent. To make an order of the nature sought, I must be satisfied of two things: firstly, that the applicant has prima facie a good cause of action against the respondent.

There are subtleties of expression in that term. Different judgments have used different terms but, for the purposes of my decision today, it is not necessary for me to have regard to those subtleties of expression. I am satisfied, on the material before me, that the applicant has got over the hurdle of showing that it has prima facie a cause of action against the respondent, or that there is a serious question to be tried against the respondent. I am not to be taken of course as expressing any view about that matter generally, except by reference to the material which has been put before me by the applicant. The respondent has not, as is his entitlement, chosen on this application to put any material before me on that question.

The second thing which the applicant must prove to my satisfaction to procure the order sought is that there is a danger, by reason of the respondent absconding, or of his assets being removed from the jurisdiction, or otherwise being disposed of within the jurisdiction, that the applicant, if it is ultimately successful in its application against him, and if it proceeds to judgment, will not be able successfully to recover the amount of any such judgment.

The jurisdiction underlying the power of the Court to grant such an injunction is said to lie in the Court's power to prevent an abuse of its process by a respondent taking steps which might in a practical sense frustrate the Court from exercising in a meaningful way its power by putting assets beyond the reach of a successful litigant. I am not satisfied on the material before me that there is a danger of the applicant absconding, or of him dealing with his assets in such a way as to dispose of them so that they will no longer be available to the respondent, or to other creditors of his, if the respondent successfully proceeds to judgment in this application. It has been put, basically, that there are two reasons why I should be so satisfied, firstly, by reason of the nature of the primary cause of action which is alleged and, secondly, by reason of the terms of certain communications between the applicant and the respondent through their respective legal advisers.

I have had regard to the nature of the allegations made but I do not think that they lead to the conclusion, either alone or in conjunction with the other factor, which I should say I regard as relatively colourless, to the degree of satisfaction adverse to the respondent which I need to reach to make an order of the type sought. In my view, the terms of the communications between the applicant and the respondent do not have much significance in support of the matters which the applicant must make out. It would be going a long way to say that a respondent who, through his solicitors, asserts a legal position or a legal right and declines to offer to an applicant that to which he says the applicant is not entitled, is thereby to be taken, either alone or in conjunction with other material, to have demonstrated an intention to dispose of assets to frustrate any judgment ultimately awarded against him. Of course, each case must be decided on the material before it. On the material presently before me, I do not have that degree of satisfaction.

I accordingly decline to make the order sought. The interim injunction made last week will lapse at five o'clock today. I should stress that the decision I have made and indicated is made solely on the material presently available before the Court. If other material becomes available, either one way or the other, then the matter can be brought back before the Court if that is considered either necessary or appropriate.

I refuse the application.

I order that the applicant pay to the respondent his costs in relation to the application for interlocutory relief brought by application dated 30 June 1997.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Decision of the Honourable Justice Mansfield.

Associate:

Dated: 28 July 1997

Counsel for the Applicant: Mr G Grieve

Solicitors for the Applicant: Piper Alderman

Counsel for the Respondent: Mr D Clayton QC

with him

Mr J White

Solicitors for the Respondent: Thomson Playford

Date of Hearing: 4 July 1997