Westpac Banking Corporation v Hilliard - [2001] VSC 198

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2127 of 2000

WESTPAC BANKING CORPORATION

Plaintiff

ROY CHARLES HILLIARD
and
INFORMATION AGE TRAVEL PTY LTD

First Defendant

Second Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions 13 June 2001
DATE OF JUDGMENT:	21 June 2001
CASE MAY BE CITED AS:	Westpac Banking Corporation v Hilliard & Ors
MEDIUM NEUTRAL CITATION:	[2001] VSC 198

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Costs - ex parte order of a Mareva type, non-disclosure of facts material to making order, order made affecting a person not a party to the proceedings, order discharged on application of person affected, order for costs on a solicitor and client basis.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R. Strong	Mallesons Stephen Jaques
For the Defendant	P. Hayes QC with R. Rosenberg	Rudstein Kron

HIS HONOUR:

On 8 June 2001, in these proceedings and on an application made on behalf of Margaret McCready by summons filed in the proceedings, I ordered that the order made by paragraph 3 of orders made in the proceedings on 19 February 2001 be discharged. Ms McCready is not and has not been a party to these proceedings. The order made by paragraph 3 of the orders made on 19 February 2001 was a Mareva type order. It directly affected Ms McCready in that it prevented her from receiving the net proceeds of the sale of a property of which she was the sole registered proprietor. Although by its form the order made on 19 February 2001 was made by consent, for the reasons stated in my judgment the order so made was treated as an ex parte order insofar as it affected Ms McCready.

Application has now been made to the court on behalf of Ms McCready that it be ordered that the plaintiff pay her costs of the summons filed on 10 April 2001 and that such costs be taxed on a solicitor and client basis. Counsel for the plaintiff, while not opposing an order that the plaintiff pay the costs of Ms McCready, opposed the application insofar as it was sought that such costs be taxed on a solicitor and client basis.

As directed I have now received written submissions on behalf of each of the plaintiff and Ms McCready.

On behalf of Ms McCready it is submitted that it should be ordered that she should have her costs of the summons against the plaintiff not on a party and party basis but on a solicitor and client, or indemnity, basis. A number of submissions made on behalf of Ms McCready have as their underlying foundation the proposition that on a party making an ex parte application to a court for a Mareva type order against another, such as Ms McCready, that party has a duty to the court and an obligation to make full and fair disclosure of all facts material to the determination by the court, in exercise of its discretion whether…

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: [2001] VSC 198
Decision Date: 21 June 2001

CaseChat Overview and Summary

In the matter of Westpac Banking Corporation v Hilliard, the dispute centred on the enforcement of a Mareva injunction, a type of order that restrains a party from removing assets from the jurisdiction. The plaintiff, Westpac Banking Corporation, sought to freeze the assets of the defendant, Hilliard, to ensure satisfaction of any potential judgment debt. This case was heard in the Federal Court of Australia, where the plaintiff sought to enforce an order against the defendant, affecting a third party who was not a party to the proceedings.

The central legal issues before the court included the validity of the Mareva injunction, the consequences of non-disclosure of material facts, and the appropriateness of discharging the injunction upon application by the third party. The court needed to determine whether the plaintiff had adequately disclosed all material facts to the court when seeking the injunction and whether the court should have been aware of certain facts that could have impacted the decision to grant the injunction. Furthermore, the court had to consider the appropriateness of discharging the injunction when the third party, who was affected by the order, applied to have it set aside.

The court found that there had been a significant non-disclosure of facts that were material to the making of the injunction. The plaintiff had failed to disclose that the third party had no connection to the proceedings and was not a party to the dispute, which was a crucial fact that could have influenced the court's decision. As a result, the court concluded that the injunction was improperly made and discharged it on the application of the affected third party. Additionally, the court held the plaintiff liable for the costs of the proceedings on a solicitor and client basis, highlighting the importance of full disclosure in such cases. The court's decision underscored the necessity for parties to provide complete and accurate information when seeking Mareva injunctions, and the potential consequences of failing to do so.

Orders