Westpac Banking Corporation v Lameri
[2000] NSWSC 393
•3 May 2000
CITATION: Westpac Banking Corporation v Lameri [2000] NSWSC 393 CURRENT JURISDICTION: Equity Division FILE NUMBER(S): SC 1805/2000 HEARING DATE(S): 03/05/2000 JUDGMENT DATE: 3 May 2000 PARTIES :
Westpac Banking Corporation (P)
Ross Allan Lameri (D1)
Leslie Anne Lameri (D2)
Lameri Industries Pty Ltd (D3)
M&O Pty Ltd (D4)
Phillip Cohen (D5)
Adam Eli Meyer (D6)
Golden Key Real Estate Pty Ltd t/as Richardson & Wrench (D7)JUDGMENT OF: Young J
COUNSEL : D R Pritchard (P)
D A Smallbone (D1 & 3)SOLICITORS: Henry Davis York (P)
Michael Croke & Co (D1 & 3)CATCHWORDS: EQUITY [340]- Mareva orders- Ancillary orders- Money traced to foreign bank account- Receiver appointed - MORTGAGES [80]- Receivers- Foreign bank account- Power to appoint. CASES CITED: Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) 1 NSWLR 155
Houlditch v Donegall (1834) 8 Bli 301DECISION: See paras 11-20
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
YOUNG J
WEDNESDAY 3 MAY 2000
1805/00 - WESTPAC BANKING CORPORATION v LAMERI & ORS
JUDGMENT
1 HIS HONOUR: This is a further application for interim protective relief in a case where, if the facts in the statement of claim are established, some of the defendants have, by means of fictitious invoices, caused the plaintiff bank to pay a large sum of money to the third defendant with consequent distributions to some of the other defendants. Mareva orders have been made in respect of some of the defendants, though in different terms.
2 Prima facie about a quarter of a million dollars was transferred from the third defendant's account to the first defendant's account with Bank BNI Negara Indonesia, Jepara, Indonesia. The plaintiff seeks appointment of an interim receiver for those moneys pending the hearing of the proceedings which have been fixed for 8 August 2000.
3 The material suggests that the Indonesian bank will not take any action with respect to the account unless it gets an order from a court in Indonesia to that effect.
4 The plaintiff seeks appointment of a receiver because it hopes that the Indonesian bank may be persuaded by such an order that its real customer is the receiver and not the first defendant. That hope may or may not be realised.
5 Mr Smallbone, who appears for the first and third defendants, says that such an order would be futile, first because the current Mareva order already covers the Indonesian bank account and, secondly, because the Indonesian bank has quite clearly indicated it will not act on any order other than from a court in Indonesia.
6 There is respectable precedent for courts of equity, particularly where the principal defendants are subject to their in personam jurisdiction, appointing a receiver over property in foreign parts. The cases are dealt with in Kerr on Receivers, 17th Edition, (London 1989) pp 92-93. The most illuminating is Houlditch v Donegall (1834) 8 Bli 301, 344; 5 ER 955, 970.
7 Receivers may be appointed ancillary to Mareva orders; see Gee on Mareva Injunctions and Anton Piller Relief, 4th Edition (Sweet and Maxwell, London 1998) p 237 and following, and see also Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) 1 NSWLR 155.
8 However, when a receiver is appointed in aid of a Mareva order the court is not to give the plaintiff de facto security. Thus the form of the order really should be that the defendant give up possession of the assets to the receiver or his agent so that it can be held by an officer of the court pending the resolution of the dispute.
9 In the instant case the only material at this stage is that the money in the Indonesian account came from the alleged fraud. There is not yet any explanation by the relevant defendants or any indication of a defence and, in circumstances where there has been no compliance to date with that part of the Mareva order which required that affidavits be filed and served, it seems to me that the fund should be further protected and is at risk unless I appoint a receiver.
10 The plaintiff bank wants the Mareva orders extended until further order. As I have said, there has been no compliance to date with that part of the order which requires affidavits detailing assets to be filed and served. I am told the first defendant has been overseas quite a lot and wishes an adjournment until 22 May 2000 to comply with the orders. I am prepared to do this on the basis that some sort of order for receivership is made in the meantime.
11 Existing order 1 is continued up to and including 22 May 2000. The existing undertaking as to damages is noted as continuing until then.
12 Without limiting the ability of any party to claim privilege against self-incrimination at an appropriate time, order that the first defendant, no later than 4pm on 17 May 2000, cause to be delivered to the Registry in a sealed envelope identifying the proceedings and marked "Not to be opened without an order of a judge" a full affidavit setting out: (a) the name and address of any bank, building society or other financial institution in which there is an account in the name of or under the control of that defendant and the third defendant together with the number of such account and the balance therein at the date of such affidavit; and (b) an itemised list of all property real and personal owned by that defendant and the third defendant or in respect of which that defendant and the third defendant has a legal or equitable interest.
13 Order that Maxwell William Prentice is appointed as receiver of account 146000148426901 with the Bank BNI Negara, Indonesia, Jepara, Indonesia, in the name of the first defendant without security.
14 Order that the first defendant do all such acts and things necessary and appropriate to vest in the said receiver as an officer of the court to hold as if the moneys had been paid into court and not as security for the plaintiff the current balance in that account.
15 Order that the said Maxwell William Prentice be authorised, subject to the approval of the agent concerned, by this court (by Judge, Master or Registrar) which agent may take proceedings in the appropriate court of Indonesia, to perfect this order.
16 Stand over proceedings to 10 am 22 May 2000 before me.
17 If the first defendant is to rely on any evidence to resist the extension of the current orders until the final hearing of the proceeding all such affidavits in support must be filed and served no later than 4pm on 17 May 2000.
18 Costs reserved.
19 I fix the pre-trial directions for 18 July 2000 at 9.30 am. I fix the final hearing for 8 to 11 August 2000 and request the plaintiff to notify all other parties forthwith.
20 If any party wishes to assert that those dates are inconvenient they should move the court to that effect no later than the end of May.
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