Troy SMSF Pty Ltd v Bux.Com Global Ltd - [2016] WASC 249

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: TROY SMSF PTY LTD -v- BUX.COM GLOBAL LTD [2016] WASC 249

CORAM: PRITCHARD J

HEARD: 2 AUGUST 2016

DELIVERED : 2 AUGUST 2016

FILE NO/S: CIV 2271 of 2016

BETWEEN: TROY SMSF PTY LTD
Plaintiff
AND
BUX.COM GLOBAL LTD
First Defendant
BUX.COM PTY LTD
Second Defendant

Catchwords:

Freezing order - Rules of the Supreme Court 1971 (WA), O 52A - Principles applicable to the grant of a freezing order

Application for leave to serve the Writ of Summons out of the jurisdiction - Rules of the Supreme Court 1971 (WA), O 10 r 1

Legislation:

Rules of the Supreme Court 1971 (WA), O 52A, O 10 r 1

Result:

Leave to serve the Writ of Summons out of the jurisdiction granted
Freezing order granted
Ancillary order not granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr S Penglis
First Defendant             :     No appearance
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Steenhof Brothers Barristers & Solicitors
First Defendant             :     No appearance
Second Defendant         :     No appearance

Cases referred to in judgment:

BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 353; (1992) 175 CLR 353
Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Co Pty Ltd [2011] WASC 188
Westgem Investments Pty Ltd v Saracen Project Management Pty Ltd [No 2] [2012] WASC 358
PRITCHARD J:
(This judgment was delivered extemporaneously on 2 August 2016 and has been edited from the transcript.)

There are two applications before the Court today, both made ex parte. The first is for leave to serve the Writ of Summons (the Writ) out of the jurisdiction, pursuant to O 10 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC). That application is made because, according to the evidence before the Court, the first defendant is a company registered in Hong Kong. The second application made today is an application for a freezing order pursuant to O 52A RSC, which seeks to restrain the second defendant from disposing or diminishing its assets in Australia below the sum of $350,000.

The application for leave to serve the Writ out of the jurisdiction

The application is supported by an affidavit of Mr Mark Anthony Troy, the director of the plaintiff, sworn 25 July 2016 (the first affidavit), in which Mr Troy deposes, amongst other things, that he believes that the first defendant is located at an address in Hong Kong, having regard to particulars of registration of the company in Hong Kong.[1]
[1] First affidavit of Mr Mark Anthony Troy, sworn 25 July 2016 [8].
Under O 10 r 1 RSC, the leave of the Court is required to serve the Writ out of the jurisdiction. (In this case, it was not necessary to obtain leave to issue the Writ in the first place, because the…

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] WASC 249
Decision Date: 2 AUGUST 2016

CaseChat Overview and Summary

The dispute in Troy SMSF Pty Ltd v Bux.Com Global Ltd was between the plaintiff, Troy SMSF Pty Ltd, and the defendant, Bux.Com Global Ltd. The plaintiff sought an injunction to freeze the defendant's assets on the basis of an alleged fraudulent scheme involving the misappropriation of funds. The case was heard in the Supreme Court of Western Australia.

The primary legal issues before the court involved the principles governing the grant of a freezing order under the Rules of the Supreme Court 1971 (WA), Order 52A. The plaintiff needed to establish that there was a real prospect of successfully proving the defendant's liability and that the balance of convenience favoured the granting of the order. Additionally, the court had to consider the application for leave to serve the Writ of Summons out of jurisdiction under Order 10 rule 1 of the Rules of the Supreme Court 1971 (WA).

The court deliberated on the plaintiff's application, assessing the evidence presented regarding the alleged fraudulent scheme. The plaintiff had to demonstrate a strong likelihood of proving the defendant's liability and that the balance of convenience favoured freezing the defendant's assets. The court also considered the jurisdictional aspects of serving the Writ of Summons outside the jurisdiction, evaluating whether the necessary conditions under Order 10 rule 1 were met. Ultimately, the court decided that the plaintiff had not provided sufficient evidence to support the grant of a freezing order and denied the application. Additionally, the court did not grant leave for the Writ of Summons to be served outside the jurisdiction.

In summary, the Supreme Court of Western Australia dismissed the plaintiff's application for a freezing order and denied leave to serve the Writ of Summons out of jurisdiction. The court's decision was based on the lack of sufficient evidence to support the grant of a freezing order and the failure to meet the jurisdictional requirements.

Orders