Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd

[2005] FCA 337

FEDERAL COURT OF AUSTRALIA

Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 337

WALTER RAU NEUSSER OEL UND FETT AG v CROSS PACIFIC TRADING LTD AND ORS
NSD 432 of 2005

ALLSOP J
21 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 432 of 2005

BETWEEN:

WALTER RAU NEUSSER OEL UND FETT AG
APPLICANT

AND:

CROSS PACIFIC TRADING LTD
FIRST RESPONDENT

PATRICK SHUNG WONG
SECOND RESPONDENT

WILLEM JOHAN VAN VLYMEN
THIRD RESPONDENT

ORBIS COMMODITIES PTY LIMITED
FOURTH RESPONDENT

INTERNATIONAL COMTRADE & SHIPPING LIMITED
FIFTH RESPONDENT

RUSSELL ISLAND PLANTATION ESTATES LIMITED
SIXTH RESPONDENT

KAY LITTLEJOHN
SEVENTH RESPONDENT

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
EIGHTH RESPONDENT

ANZ LIMITED, FIJI
NINTH RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

21 MARCH 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

Upon the Applicant by its counsel, giving the usual undertaking as to damages:

1.That the Applicant be granted leave to file in Court the application, notice of motion and supporting affidavits.

2.That the notice of motion be returnable instanter.

3.That until 24 March 2005 at midnight, each of the First to Fifth and Seventh Respondents by itself and its servants and agents be restrained from transferring, encumbering, disposing or otherwise dealing with the payments received from the Applicant under the agreement between the Applicant and the First Respondent dated 4 September 2003, as amended on or about 20 May 2004, and otherwise, in the case of the First and Fifth Respondents, than by payment into court in accordance with Orders numbered 4 and 7 respectively.

4.That on or before 24 March 2005, the First Respondent pay, and that the Second and Third Respondents procure that the First Respondent pays, into court or as the court otherwise orders each and all of the payments received by the First Respondent, whether directly or through the Fifth Respondent or any other person, from the Applicant pursuant to the agreement between the Applicant and the First Respondent dated 4 September 2003, as amended on or about 20 May 2004.

5.That until 24 March 2005 at midnight, the Fifth Respondent by itself and its servants and agents be restrained from transferring funds out of, encumbering, disposing or otherwise dealing with any account in Melbourne of the Fifth Respondent held with the Eighth Respondent and used for the transfer of funds to its account being USD Account no. 6118484 held with the Ninth Respondent in the Republic of Fiji, otherwise than by payment into court in accordance with Order number 7.

6.That until 24 March 2005 at midnight, the Fifth Respondent by itself and its servants and agents be restrained from transferring funds out of, encumbering, disposing or otherwise dealing with its account being USD Account no. 6118484 held with the Ninth Respondent, in the Republic of Fiji, otherwise than by payment into court in accordance with Order number 7.

7.That on or before 24 March 2005, the Fifth Respondent pay, and the Second and Third Respondents procure that the First Respondent pays, into court or as the court otherwise orders each and all of the payments received by the Fifth Respondent on account for the First Respondent from the Applicant pursuant to the agreement between the Applicant and the First Respondent dated 4 September 2003, as amended on or about 20 May 2004.

8.That until 24 March 2005 at midnight, the Eighth Respondent by itself and its servants and agents be restrained from transferring any funds out of any account in Melbourne of the Fifth Respondent held with the Eighth Respondent and being the account used for the transfer of funds to USD Account no. 6118484 held with the Ninth Respondent in the Republic of Fiji, otherwise that by payment into court in accordance with Order number 7 and by way of bank charges imposed and deducted in the ordinary course of the Eighth Respondent’s business.

9.That until 24 March 2005 at midnight, the Ninth Respondent by itself and its servants and agents be restrained from transferring any funds out of the account of the Fifth Respondent being USD Account no. 6118484 held with the Ninth Respondent in the Republic of Fiji, otherwise than:

(a)By payments into court in accordance with Order number 7;

(b)By imposition and deduction of bank charges on that account in the ordinary course of the Ninth Respondent’s business;

(c)In compliance with an order of a court having jurisdiction over the Ninth Respondent; or

(d)For the purposes of payments under contractual obligations between the Fifth Respondent and third parties which the Bank reasonably believes are neither related to nor associated with the First to Seventh Respondents.

10.That each of the Fourth and Fifth Respondents identify on affidavit sworn by persons other than the Second, Third and Seventh Respondents (and otherwise than by information that is the subject of any claim for privilege from the Second, Third and Seventh Respondents) within two days:

(i)          the account names, account numbers, branches and banks or other financial institutions into which the proceeds of the payments made by the Applicant to the First Respondent, whether paid directly to the First Respondent or paid into the account of the Fifth Respondent on account for the First Respondent, under the agreement dated 4 September 2003, as amended on or about 20 May 2004, have been dispersed or paid and annex a copy of receipts, swift notices, facsimiles, statements, correspondence or emails recording any transfer, receipt or disposition of any part of the proceeds of the monies received under or pursuant to that agreement; and

(ii)        setting out with particularity all current assets and liabilities of the respective respondent, the approximate value of those assets and liabilities, the location of particular assets, the names of any wholly or partly owned subsidiary (including the value of those shares and the value of any shares owned in turn by any subsidiary), and the names of any other company in which shares are held (including the value of those shares), and the particulars of any trust in which the respective respondent is a beneficiary (including as an actual, contingent or discretionary beneficiary).

11.That until 24 March 2005 at midnight, each of the First, Fourth and Fifth Respondents by itself and its servants and agents be restrained from disposing, encumbering, selling or otherwise dealing with any of their respective assets wherever situate except to the extent that the respective respondents have unencumbered liquid assets in Australia in an amount exceeding USD1.2 million and provided further that the First, Fourth and Fifth Respondents may each pay ordinary business expenses to a maximum of AUD5,000 per week and may each pay legal costs in respect of these proceedings in an amount not exceeding AUD10,000.

12.That until 24 March 2005 at midnight, each of the Second, Third and Seventh Respondents by themselves and its servants and agents be restrained from disposing, encumbering, selling or otherwise dealing with any of their respective assets wherever situate except to the extent that the respective respondents have unencumbered liquid assets in Australia in an amount exceeding USD1.2 million and provided further that the Second, Third and Seventh Respondents may pay ordinary living expenses to a maximum of AUD1,000 per week and may each pay legal costs in respect of these proceedings in an amount not exceeding AUD10,000.

13.That substituted service of the application, notice of motion, supporting affidavits and these orders upon the First, Fifth and Sixth Respondents may be effected by serving a sealed copy thereof upon the Second Respondent and that such service effected shall be taken to be personal service on the First, Fifth and Sixth Respondents. 

14.That substituted service of the application, notice of motion, supporting affidavits and these orders upon the First and Fifth Respondent may also be effected by serving a sealed copy thereof at Suite 301, St Thomas House, 781 Pacific Highway, Chatswood in the State of New South Wales.

15.That substituted service of the application, notice of motion, supporting affidavits and these orders upon the Sixth Respondent may also be effected by serving a sealed copy thereof by facsimile at its registered office in Honiara, Solomon Islands, being the offices of Goh & Partners, Pacific Casino Hotel, Honiara, Solomon Islands at facsimile number ([phone].

16.That substituted service of the application, notice of motion, supporting affidavits and these orders upon the Seventh Respondent may be effected by serving a sealed copy thereof both by facsimile at facsimile number [phone] and by email at [email protected].

17.That substituted service of the application, notice of motion, supporting affidavits and these orders upon the Ninth Respondent may be effected by serving a sealed copy thereof by facsimile at its office at ANZ House, 25 Victoria Parade, Suva, Fiji, facsimile number ([phone]. 

18.That the Second, Third and Seventh Respondents appear for the purposes of giving evidence to support further interlocutory relief.

19.Grant leave to the Applicant to file and serve subpoenas to give evidence upon the Second, Third and Seventh Respondents returnable on 24 March 2005 and abridging time for service to 5.00 pm on 22 March 2005. 

20.That time for service of the application, notice of motion and supporting affidavit upon the respondents be abridged to 10.00 am on 22 March 2005.

21.That these proceedings be listed for further directions at on 24 March 2005 at 2.00 pm.

22.That costs be reserved.

23.Liberty to apply urgently by arrangement with the Associate of Allsop J.

24.Note that on the return date the Applicant may seek in the alternative to examining the Second, Third and Seventh Respondents and order that each of the Second, Third and Seventh Respondents identify on affidavit within two days:

(i)          the account names, account numbers, branches and banks or other financial institutions into which the proceeds of the payments made by the Applicant to the First Respondent, whether paid directly to the First Respondent or paid into the account of the Fifth Respondent on account for the First Respondent, under the agreement dated 4 September 2003, as amended on or about 20 May 2004, have been dispersed or paid and annex a copy of receipts, swift notices, facsimiles, statements, correspondence or emails recording any transfer, receipt or disposition of any part of the proceeds of the monies received under or pursuant to that agreement; and

(ii)        setting out with particularity all current assets and liabilities of the respective respondent, the approximate value of those assets and liabilities, the location of particular assets, the names of any company in which shares are held (including the value of those shares), and the particulars of any trust in which the respective respondent is a beneficiary (including as an actual, contingent or discretionary beneficiary),

except that, if a proper claim for privilege against self-incrimination is to be raised, in part or in whole:

(iii)        that part or whole to be filed in a sealed envelope delivered to the Associate to the Judge of the Court making this order;

(iv)       the opening of that envelope, and inspection or use of its contents, is subject to any application by either of the respondents under Federal Court Rule 33.11 or s. 128 of the Evidence Act 1995; and

(v)        if reasonable grounds for objection are found and neither subs. 128(3) or 128(5) of the Evidence Act 1995 applies, the contents of that envelope are to be completely destroyed by a judge of the Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 432 of 2005

BETWEEN:

WALTER RAU NEUSSER OEL UND FETT AG
APPLICANT

AND:

CROSS PACIFIC TRADING LTD
FIRST RESPONDENT

PATRICK SHUNG WONG
SECOND RESPONDENT

WILLEM JOHAN VAN VLYMEN
THIRD RESPONDENT

ORBIS COMMODITIES PTY LIMITED
FOURTH RESPONDENT

INTERNATIONAL COMTRADE & SHIPPING LIMITED
FIFTH RESPONDENT

RUSSELL ISLAND PLANTATION ESTATES LIMITED
SIXTH RESPONDENT

KAY LITTLEJOHN
SEVENTH RESPONDENT

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
EIGHTH RESPONDENT

ANZ LIMITED, FIJI
NINTH RESPONDENT

JUDGE:	ALLSOP J
DATE:	21 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant seeks urgent ex parte relief arising out of contracts for the sale and shipment of copra pursuant to written arrangements made apparently between the applicant and the first respondent. I say, apparently because one issue in the case is whether the first respondent presently exists or has ever existed. There is some evidence to indicate that it may have been at some time in the past, registered in the Cook Islands. 

2. The underlying facts are potentially complex, the simplicity of them for present purposes is as follows:  the applicant is a German entity which engages in the purchase and sale of various commodities, in this case copra. At some stage in 2003 and thereafter, the applicant thought it was entering into arrangements with several of the respondents for the sale and purchase and transport ultimately from the Solomon Islands to Europe of quantities of copra.  Pursuant to those arrangements sums totaling just under USD1 million had been paid on the face of invoices apparently raised by the first respondent.  No copra has ever delivered to Europe, the sales were FOB Honiara, a Solomon Islands port. However, it appears that no copra, other than five to seven tonnes has ever been loaded for the purported benefit of the applicant.  It has paid for many thousands of tonnes. 

3. The applicant claims that various misrepresentations have been made to it, not the least of which is the existence of, the very existence of the first respondent and impliedly, the ability of anyone relevantly to provide title to the copra in question to the applicant.  The matter was frankly put to me by Mr Street SC who appears with Mr Hogan-Doran for the applicant that, not to put too fine a point on it, the applicant's case is both under the Trade Practices Act 1974 (Cth), the Corporations Act 2001 (Cth) and in common law fraud. There is not presently before the Court a pleaded statement of claim. I expect one to be available at least in final draft form on the next occasion the matter is before the Court. The orders sought today ex parte are not merely service and abridgment of time but substituted service in lieu of service under the rules outside the jurisdiction in respect of some of the respondents and in respect of a number of the respondents worldwide freezing orders and in respect of some of the respondents orders that monies be paid into court on or before this Thursday to the extent that those companies are in possession of those funds.

4. I have read the affidavits of Mr Horn and Mr Hurley and the exhibits to those affidavits together with exhibit A. In the absence of the respondents and thus not having heard the parties, there is a sufficiently concerning case to warrant the issue of orders from this Court of the kind contained within the short minutes which I have initialed and which are dated today.  These provide for interlocutory payment into court and freezing orders against the respondents.

5. I should add that the eighth and ninth respondents are two companies in the one banking group, that is the Australia and New Zealand Banking Group Limited and ANZ Bank Limited, Fiji.  ANZ Bank Limited, Fiji, is of course, a Fiji Bank not carrying on business in Australia.

6. As to the orders sought against a Fijian bank, ANZ Bank Limited Fiji, I am satisfied that there is a jurisdictional nexus for service outside the jurisdiction under Order 8 of the Federal Court Rules, arguably Order 8 rule 1(a), (aa), (ab), (ac), (ad), (b), (g), (j), (l).  Given the underlying concern in the proceedings that there has or may have been conduct by the parties of a character which requires immediate steps to be taken by the Court, I am prepared in the circumstances provided for in the affidavits to make orders in accordance with those sought.

7. I should add that the ninth respondent and those who control it in Fiji should not think that there was put to me (or there is a concern in the Court about) any matter which would reflect poorly upon either the ninth respondent or the Republic of Fiji.  Rather, given the concerns that have been expressed in the evidence and the material before the Court that for the better perfection of justice, orders should be made against the ninth respondent and I will, of course, hear the ninth respondent if it wishes to put submissions or evidence before me at the earliest opportunity.

8. I should add that an undertaking as to damages has been given by the applicant.  The applicant is a foreign corporation.  There is evidence before me that the applicant has taken steps and is continuing to take steps to put in place a bank guarantee to secure that undertaking to the extent presently of AUD100,000.

9. I make orders in accordance with the short minutes initialed by me dated today.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             1 April 2005

Counsel for the Applicant:	Mr A Street SC with Mr J Hogan-Doran
Solicitor for the Applicant:	Ebsworth & Ebsworth
Date of Hearing:	21 March 2005
Date of Judgment:	21 March 2005