Withersfield Pty Ltd v Kidman - [2008] QDC 112

[2008] QDC 112

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

WITHERSFIELD PTY LTD (ACN 010 515 278)	Applicant
and
KYLIE MERYL KIDMAN	Respondent

BRISBANE

..DATE 03/04/2008

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 260A - circumstances in which a "Mareva" or "Freezing" order was made ex parte on an urgent originating application

HIS HONOUR: This is an application for injunctive relief of the kind referred to in the UCPR in the rules surrounding
r 260A (Freezing order) to protect the value presently in a bank account and in a house property to which the plaintiff company asserts that without its consent its assets, money specifically, have contributed at the doing of the respondent. This comes on as an urgent application which has not been served on her.

No material has been filed in the Court. Mr Pitman, appearing for the plaintiff company and, for the limited purpose of giving an undertaking as damages, for its director, the deponent Michael Russo has obtained the Court's leave to read and file an originating application, an interlocutory application seeking most of the same relief and an affidavit by Mr Russo.

The respondent, according to the affidavit, has been an employee of the company for some 10 years, starting in a clerical capacity but advancing a couple of years ago to the responsible and trusted position of General Manager. The roll of employees at the company, which runs a meat wholesaling business at Murarrie, is into double figures.

The company appeared to have less in kitty than should have been the case given the continuance of trading at accustomed levels. The respondent was entrusted with identifying the cause. She had nothing useful to report, it would seem, to
Mr Russo, whose co-director is his wife, said from the Bar table to play a relatively inactive part.

It is now his belief that misappropriation by the respondent was occurring. He deposes to her having come into possession of certain items of property which he doubted she could afford on the basis of the remuneration from her employment.

In the early part of 2007, she and a gentleman became registered proprietors of the property referred to in the originating application for a recorded sale price of $322,500. That purchase is associated with a mortgage to RAMS Mortgage Corporation, a copy of which appears in the material. The respondent and Mr Brealey are registered as joint tenants.

As to incriminating evidence, Mr Russo has been able to download from the company's computer system referable to its internet banking what he says is an irregular transfer of $5564.04 from the company's account at the National Australia Bank to the respondent's account, 014218-577598721 at the ANZ Bank. The additional information on the print-out says "Wages". However, the Court is given to understand that the respondent's wages are subsumed in larger periodic payments covering numerous employees.

The cash disbursements journal said to be kept by the respondent identifies that claim, $5564, as freight for an overseas container.

Going back in…

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 Withersfield Pty Ltd v Kidman

Details

AGLC: Withersfield Pty Ltd v Kidman [2008] QDC 112
Case: [2008] QDC 112
Decision Date: 3 April 2008

CaseChat Overview and Summary

In the District Court of Queensland, Withersfield Pty Ltd, a meat wholesaling business, filed an urgent ex parte application against Kylie Meryl Kidman, its former General Manager, seeking injunctive relief to protect its assets from alleged misappropriation by Kidman. The applicant claimed that Kidman had misappropriated company funds and was in possession of certain properties that she could not afford based on her employment remuneration. The application sought a "Freezing" order under UCPR r 260A to prevent Kidman from disposing of these assets.

The court needed to determine whether the circumstances justified granting an ex parte freezing order under UCPR r 260A. The applicant had to demonstrate that there were reasonable grounds to believe that Kidman had misappropriated funds and that there was an imminent risk she would dissipate the assets. The court also had to consider whether the applicant had provided sufficient evidence to support its claims and whether the freezing order was necessary to prevent injustice. Moreover, the court had to address the procedural issue of whether the application should proceed as a claim and whether the applicant's jurisdiction was properly invoked.

The court found that the applicant had presented sufficient evidence to warrant an ex parte freezing order. It noted the irregularities in the transactions and the significant assets in Kidman's possession that appeared to be funded by the applicant's money. The court accepted that there was a real risk of dissipation of assets and that a freezing order was necessary to protect the applicant's interests. The court also ruled that the application could proceed on an interlocutory basis and that the applicant's jurisdiction was adequately invoked with appropriate amendments. The court declined to order Kidman to provide evidence of misappropriation and a list of her assets until she had been served with the application. The court ordered the freezing orders to remain in effect until a specified time, allowing further proceedings to be scheduled.

The court granted the application with several conditions. It required the applicant to provide an undertaking as to damages supported by the personal undertaking of Michael Russo, the applicant's director. The court also ordered that all relevant applications and affidavits be served on Kidman. The court adjourned the matter to allow for further proceedings and directed the applicant to amend the originating application to include a provision for judgment in an amount to be determined for the misappropriated funds.

Orders