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Victorian WorkCover Authority v Baldwin

Victorian WorkCover Authority v Baldwin

Case [2021] VSC 667 27 October 2021

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2021 00763

VICTORIAN WORKCOVER AUTHORITY Trading as WorkSafe Victoria (ABN 90 296 467 627)	Plaintiff
v
CHRISTOPHER JAMES BALDWIN	First Defendant
-and-
DANBOL PTY LTD (ACN 147 432 399)	Second Defendant
-and-
DELACOR PTY LTD (ACN 615 956 341)	Third Party
-and-
BEVERLEY KAYE BALDWIN	Third Party Respondent

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JUDGE:	Sloss J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2021
DATE OF JUDGMENT:	27 October 2021
CASE MAY BE CITED AS:	Victorian WorkCover Authority v Baldwin & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 667

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PRACTICE AND PROCEDURE – Application for freezing orders and ancillary orders – Where first defendant (who is sole director & shareholder of second defendant) transferred his joint interest in three Mooroopna properties to his wife without payment of monetary consideration – Where freezing order is now in place over those three properties – Where first defendant has proffered an extended undertaking (in substitution for earlier undertaking) to not dispose of, deal with or diminish the value of his assets and to hold the proceeds of sale of the Kialla properties in solicitor’s trust account – Where following plaintiff expressing concern that second defendant had granted mortgages to related entities of first defendant that were registered over its (sole) property asset, an undertaking was given by first defendant as director of second defendant to not dispose of, deal with or diminish the value of its assets – Whether the plaintiff has a ‘good arguable case’ – Whether there is a risk that any prospective judgment against the defendants might be unsatisfied and thereby frustrate the process of the Court – Whether risk of dissipation of assets is attenuated by extended undertaking proffered by first defendant and freezing order in place over the three Mooroopna properties–Supreme Court (General Civil Procedure) Rules 2015, Order 37A – Dangerous Goods Act 1985 (Vic), s 17K.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms E Bennett and Mr A Purton of counsel	MinterEllison
For the Defendants and Mrs Beverley Kaye Baldwin	Mr C Young QC and Mr T Jeffrie of counsel	Davis Advisory

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The plaintiff commenced a proceeding for recovery of the clean-up costs pursuant to section 17K(6) of the Dangerous Goods Act 1985............................................................................ 2
The plaintiff’s summons seeking freezing orders and ancillary orders............................... 2
A suite of interim relief was ordered on 26 August 2021........................................................ 3
The defendants filed a summons seeking a summary determination of the proceeding — listed for ‘directions only’ on 1 October 2021............................................................................. 4

Factual chronology re the plaintiff’s application for freezing orders..................................... 6

Applicable legal principles............................................................................................................ 19

Consideration and disposition...................................................................................................... 23

Does the plaintiff have a ‘good arguable case’?..................................................................... 23
The danger that the prospective judgment might be unsatisfied as a result of the defendants’ actions.................................................................................................................................. 31
Undertakings proffered by Mr Baldwin do not eliminate the risk of dissipation of assets 37
The amount the subject of the freezing order(s)..................................................................... 38
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.

Continue reading Victorian WorkCover Authority v Baldwin

Details

AGLC: Victorian WorkCover Authority v Baldwin [2021] VSC 667
Case: [2021] VSC 667
Decision Date: 27 October 2021

CaseChat Overview and Summary

In the case of Victorian WorkCover Authority v Baldwin, the plaintiff sought freezing orders and ancillary orders in relation to the defendants' assets, following allegations of significant breaches of workplace health and safety regulations. The plaintiff, representing WorkCover Authority, claimed that the first defendant, as the sole director and shareholder of the second defendant, transferred his joint interest in three properties in Mooroopna to his wife without any monetary consideration. The court had already issued a freezing order over these three properties, and the first defendant provided an extended undertaking to refrain from disposing of, dealing with, or diminishing the value of his assets, and to hold the proceeds of the sale of the Kialla properties in a solicitor's trust account. The case before the court was to determine whether the plaintiff had a good arguable case and whether there was a risk that any prospective judgment against the defendants might be unsatisfied, thereby frustrating the court's process.

The legal issues before the court were whether the plaintiff had established a good arguable case against the defendants and if there was a risk that any judgment against the defendants might be unsatisfied. The court considered the risk of asset dissipation and whether it was mitigated by the extended undertaking provided by the first defendant and the existing freezing order over the three Mooroopna properties. The court also evaluated the effect of the first defendant's undertaking as the director of the second defendant to not dispose of, deal with, or diminish the value of the second defendant's assets.

The court found that the plaintiff had made out a good arguable case against the defendants, and there was a real risk that any judgment against them might be unsatisfied. The court concluded that the risk of asset dissipation was reduced due to the extended undertaking provided by the first defendant and the existing freezing order. However, the court was also concerned about the second defendant granting mortgages to related entities of the first defendant over its sole property asset, which led to an additional undertaking by the first defendant as the director of the second defendant. The court held that the plaintiff had demonstrated a good arguable case and that there was a risk that any judgment against the defendants might be unsatisfied, thereby warranting the continuation of the freezing orders and ancillary orders.

The court ordered that the freezing orders and ancillary orders already in place remain in effect. The first defendant was required to provide an extended undertaking to not dispose of, deal with, or diminish the value of his assets and to hold the proceeds of sale of the Kialla properties in a solicitor's trust account. Furthermore, as the director of the second defendant, the first defendant was also required to give an undertaking to not dispose of, deal with, or diminish the value of the second defendant's assets.

Orders