Westpac Banking Corporation v Hilliard - [2001] VSC 187

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2127 of 2000

WESTPAC BANKING CORPORATION	Plaintiff
v
ROY CHARLES HILLIARD	First Defendant
and
INFORMATION AGE TRAVEL PTY LTD	Second Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 29 and 31 May 2001
DATE OF JUDGMENT:	8 June 2001
CASE MAY BE CITED AS:	Westpac Banking Corporation v Hilliard and Ors
MEDIUM NEUTRAL CITATION:	[2001] VSC 187

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Mareva type order - order made on ex parte application against person not a party to proceedings – application to set aside orders – non-disclosure of material facts - consideration of all facts before the court on application – order discharged.

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

HIS HONOUR:

The proceeding before the court is brought in the proceedings wherein Westpac Banking Corporation is plaintiff and Roy Charles Hilliard and Information Age Travel Pty Ltd are defendants. The proceeding has been brought by summons issued on behalf of Margaret McCready. She is not a party to the proceedings between the plaintiff and the defendants. By a summons filed on behalf of Ms McCready on 10 April 2001 she seeks the discharge of a Mareva order made in the proceedings on 19 February 2001, which order directly effects her in that it prevents her from receiving moneys, other than the sum of $75,000, which are the proceeds of the sale of a property situate and known as Unit 801, Level 8, 469 St Kilda Road, Melbourne (“Unit 801”) which property had been sold by her. At the time of the sale Ms McCready was the sole registered proprietor of Unit 801.

On 20 December 2000 the plaintiff commenced its proceedings against the defendants by issue of a writ on that day. By the plaintiff’s endorsement on the writ the plaintiff claimed against the defendants damages pursuant to the Fair Trading Act (Vic) and/or the Trade Practices Act 1974 (C’th) and for fraudulent misrepresentation. By the endorsement on the writ the plaintiff alleged that it operated bank accounts in the name of Stephen Vizard, Sarah Vizard and entities in which Stephen Vizard is a director and/or shareholder, including Performing Arts Investments Pty Ltd and Performing Arts Services Pty Ltd referred to collectively as the “PAS Group”. It is alleged that during the period from or about July 1991 until or about 7 October 2000 Hilliard was employed as a book-keeper by Performing Arts Services Pty Ltd and during that period and in his employment he was authorised to sign cheques up to a limit of $10,000 per cheque drawn on accounts maintained by the plaintiff on behalf of the companies in the PAS Group. It is alleged that in or about 2 February 1996 Hilliard, without the consent of the PAS Group, forwarded to the plaintiff a letter purporting to increase, from $10,000 to $50,000…

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 187
Decision Date: 8 June 2001

CaseChat Overview and Summary

In the case of Westpac Banking Corporation v Hilliard, the court addressed a dispute between Westpac Banking Corporation and a third party, Hilliard, who was not originally a party to the proceedings. Westpac had sought an ex parte Mareva-type order against Hilliard, who was suspected of transferring assets to avoid Westpac's claims. The application was made without Hilliard's knowledge or involvement, and subsequently, Hilliard applied to set aside the orders, alleging non-disclosure of material facts by Westpac. The court was tasked with determining whether the original orders should be maintained or discharged.

The court examined the nature and purpose of the Mareva injunction, which is intended to prevent the dissipation of assets that might be required to satisfy a judgment. The legal issues revolved around the fairness and procedural correctness of issuing such an order against a non-party, particularly when critical information was not disclosed during the initial application. The court also needed to assess whether the non-disclosure materially affected the decision to grant the order and if the overall fairness of the proceedings warranted the setting aside of the orders.

In delivering its decision, the court highlighted that the essence of justice is fairness, and the ex parte order was granted without Hilliard's participation or knowledge. The non-disclosure of certain facts was deemed significant, impacting the court's ability to make an informed decision. The court found that the orders were not justified in light of the non-disclosure and the potential unfairness to Hilliard. Consequently, the court discharged the Mareva-type orders against Hilliard, emphasising the need for transparency and fairness in all legal proceedings.

The final orders of the court discharged the Mareva-type orders made against Hilliard and directed that the matter be returned to its original position prior to the issuance of those orders. The court also made a note that further applications regarding asset preservation would need to be made with full disclosure and with proper notice to all parties involved.

Orders