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Todd v Novotny

Todd v Novotny

Case [2000] WASC 308 15 December 2000

Abuse of Process

Discovery & Disclosure

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TODD -v- NOVOTNY & ANOR [2000] WASC 308

CORAM: PARKER J

HEARD: 21 NOVEMBER 2000

DELIVERED : 15 DECEMBER 2000

FILE NO/S: CIV 2281 of 1996

BETWEEN: ROBERT JOSEPH TORRANCE TODD
Plaintiff
AND
MICHAEL NOVOTNY
First Defendant
BACKLOAD PTY LTD (ACN 009 451 192)
Second Defendant

Catchwords:

Practice and procedure - Mareva injunction - Renewed application - Additional evidence relied on - Not fresh evidence - Whether an abuse of process

Legislation:

Nil

Result:

Application not an abuse of process
Hearing to proceed

Representation:

Counsel:

Plaintiff:     Mr M J McCusker QC & Mr P A Tottle
First Defendant             :     Mr M H Zilko
Second Defendant         :     Mr M H Zilko

Solicitors:

Plaintiff:     Tottle Christensen
First Defendant             :     Williams & Hughes
Second Defendant         :     Williams & Hughes

Case(s) referred to in judgment(s):

Brimaud v Honeysett Instant Print Pty Ltd, unreported; SCt of NSW (McLelland J); 19 September 1988
D A Christie Pty Ltd v Baker [1996] 2 VR 582
Nominal Defendant v Manning [2000] NSWCA 80

Case(s) also cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Amalgamated Television Services v Marsden [1999] NSWCA 313
Austen & Butta Ltd v Shell Australia Ltd (1992) 10 ACLC 610
Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 All ER 745
Christmas Island Resort Pty Ltd v Casinos International (Christmas Island) Pty Ltd, unreported; SCt of WA; Library No 960641; 8 October 1996
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Collier v Howard, unreported, SCt of NSW (McLelland CJ in Eq); 23 April 1996
Darling Harbourside (Sydney) v Sanririse Pty Ltd, unreported; Fed C of A; 17 May 1996
Derby & Co v Weldon (Nos 3 & 4) [1989] 2 WLR 412
Earthline Constructions Pty Ltd v State Rail Authority of NSW, unreported; CA SCt of NSW; 26 October 1992
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49
Guss v Magistrates Court of Victoria [1998] 2 VR 113
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Kermode v John Fairfax Publications Pty Ltd [2000] NSWSC 124
Mitchell v Saengjan (1994) 117 FLR 273
Patterson v BTR Engineering (Aust) Pty Ltd (1989) 18 NSWLR 319
Perth Mint v Mickelberg [1985] WAR 117
Santos & Associates v Glowtime Pty Ltd [2000] WASC 58
Tae Hyun Kim v Melton Wool Pty Ltd [1999] VSC 52
Uniflex (Aust) Pty Ltd v Hanneybel, unreported; SCt of WA (White J); Library No 98046; 17 August 1998
Ward v The State of Western Australia, unreported; Fed C of A (Carr J); 14 May 1997
Wentworth v Rogers, unreported; SCt of NSW (Sperling J); 28 April 1995

PARKER J: By summons filed on 13 November 2000 the plaintiff seeks an asset preservation order, or Mareva injunction, pending the trial of this action. This is opposed by the defendants.
The action has been on foot now for some…

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.

Continue reading Todd v Novotny

Details

AGLC: Todd v Novotny [2000] WASC 308
Case: [2000] WASC 308
Decision Date: 15 DECEMBER 2000

CaseChat Overview and Summary

In the case of Todd v Novotny, the parties involved were Todd and Novotny, with the dispute centred around the application for a Mareva injunction. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether the additional evidence presented by Todd in support of a renewed application for a Mareva injunction constituted fresh evidence that could justify the grant of such an injunction, and if not, whether the renewed application represented an abuse of process.

The court had to consider whether the new evidence Todd sought to rely on was indeed fresh evidence, which, if true, would warrant the grant of a Mareva injunction. The court examined the nature of the evidence and determined whether it had been available or discoverable at the time of the initial application, or if it had only come to light subsequently. Additionally, the court assessed whether the renewed application for the injunction was an abuse of the court's process, considering the implications of such a finding on the administration of justice.

The court concluded that the additional evidence presented by Todd did not amount to fresh evidence, as it was either available or discoverable at the time of the initial application. The court found that the renewed application for the Mareva injunction constituted an abuse of process. Consequently, the court denied the renewed application and emphasised the importance of maintaining the integrity of the legal process. The court's decision underscored the necessity for parties to present all relevant evidence at the earliest opportunity to avoid unnecessary and potentially prejudicial legal proceedings.

The court ordered that Todd bear the costs of the renewed application, reflecting its view that the renewed application was not warranted and had potentially prejudiced Novotny. This decision serves as a reminder to litigants of the importance of thorough and timely disclosure of evidence in proceedings involving applications for Mareva injunctions.

Orders