Primary Services New Zealand v Fonagy
[2019] NZHC 3050
•21 November 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2019-409-000404
[2019] NZHC 3050
BETWEEN PRIMARY SERVICES NEW ZEALAND LIMITED
Applicant
AND
ANDREW MICHAEL FONAGY
First Respondent
AND
ORA TRUSTEES LIMITED
Second Respondent
Hearing: 7 November 2019 Appearances:
J L Bates for Applicant
No appearance for First Respondent N R Williams for Second Respondent
Judgment:
21 November 2019
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 21 November 2019 at 12 noon pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Brown & Bates, Napier
Anderson Creagh Lai Ltd, Auckland
Meredith Connell, Auckland
PRIMARY SERVICES NEW ZEALAND LTD v FONAGY [2019] NZHC 3050 [21 November 2019]
The applications
[1] This judgment concerns applications by Primary Services New Zealand Ltd (Primary Services):
(a)to set aside the second respondent’s, Ora Trustees Ltd (Ora), objection to jurisdiction under r 5.49 High Court Rules 2016 (the Rules); and
(b)for leave to cross-examine witnesses and issue subpoenas on the hearing of (a) above.
[2] The first application is opposed by Ora. The first respondent, Andrew Michael Fonagy (Mr Fonagy), abides the court’s decision.
[3] The second application is opposed by both Ora and Mr Fonagy. Given my conclusion that Ora’s objection to jurisdiction must be set aside, I do not need to consider the second application.
The background
[4] I set out below the procedural background in so far as it is necessary to give context to the application I must decide.
[5] On 26 July 2019, Primary Services commenced this proceeding against Colombo Projects Ltd (Colombo), Mr Fonagy, and John Richmond Paynter (Mr Paynter). It sought summary judgment against all three defendants under a loan facility agreement between Primary Services and Colombo in respect of which Mr Fonagy and Mr Paynter are guarantors. I will refer to this as the primary proceeding.
[6] At the same time, Primary Services also filed (in the primary proceeding) an interlocutory application against Mr Fonagy and Ora for freezing orders (the freezing order application). Ora is registered in the Cook Islands with its registered office at Avarua, Rarotonga. It operates as a trustee of international trusts according to the laws of the Cook Islands.
[7] Primary Services alleges that Mr Fonagy has been transferring personal assets to Ora. The assets are shareholdings in companies and the proceeds of sale to which Mr Fonagy might become entitled following the sale of any property owned by those companies. Primary Services seeks to restrain Ora from removing from New Zealand those assets or from disposing of, dealing with or diminishing the value of those assets, whether they were inside or outside of New Zealand.
[8] The freezing order application came before Dunningham J on 26 July 2019. She was satisfied that Primary Services had a good arguable claim in the primary proceeding but required further assistance as to why the court should issue a freezing order in respect of assets where it is not obvious that Primary Services would have recourse to those assets if it obtained judgment. She referred the matter for a teleconference with a duty judge.
[9] On 1 August 2019, a teleconference was convened before Churchman J. Mr Fonagy’s counsel appeared on a Pickwick basis. Ora’s counsel was to appear on the same basis but could not join the conference. Churchman J made a freezing order against Mr Fonagy but directed that Ora was to be served with the primary proceeding and freezing order application and the case be set down for a case management conference.
[10] On 7 August 2019, Ora was served with the primary proceeding and freezing order application at its registered office. Ora accepts that service was in accordance with the laws of the Cook Islands but argues that it was not valid under the Rules.
[11] On 26 August 2019, Ora filed a notice of appearance under protest to jurisdiction. On 6 September 2019, Primary Services filed its application to set aside the protest to jurisdiction.
[12] Primary Services obtained summary judgment against Colombo on 3 October 2019. Its applications for summary judgment against Mr Fonagy and Mr Paynter are yet to be heard.
[13] The freezing order application has been set down for hearing before Dunningham J on 10 December 2019 in anticipation of this judgment being issued before that date.
[14] On 29 October 2019, Primary Services filed its application seeking leave to cross-examine and to issue subpoenas. At the same time, Primary Services sought an urgent interim freezing order against Ora. That application was made on notice. It was heard by Simon France J on 5 November 2019 and was dismissed; at least in part because the substantive hearing of the freezing order application was scheduled for 10 December 2019.
The court’s powers
[15] The court’s power to make a freezing order is derived from s 12 of the Senior Courts Act 2016. The procedural aspects of applications for freezing orders are contained in Part 32 of the Rules.
[16]Rules 32.2 and 32.4 read:
32.2 Freezing order
(1)The court may make an order (a freezing order), on or without notice to a respondent in accordance with this Part.
(2)A freezing order may restrain a respondent from removing any assets located in or outside New Zealand or from disposing of, dealing with, or diminishing the value of, those assets.
(3)An applicant for a freezing order without notice to a respondent must fully and frankly disclose to the court all material facts, including—
(a) any possible defences known to the applicant; and
(b) information casting doubt on the applicant’s ability to discharge
the obligation created by the undertaking as to damages.
(4)An application for a freezing order must be made by interlocutory application under Part 7 or originating application under Part 19, which Parts apply subject to this Part.
(5)An applicant for a freezing order must file a signed undertaking that the applicant will comply with any order for the payment of damages to compensate the respondent for any damage sustained in consequence of the freezing order.
32.4 Respondent need not be party to proceeding
The court may make a freezing order or an ancillary order against a respondent even if the respondent is not a party to a proceeding in which substantive relief is sought against the respondent.
[17] The court may grant a freezing order against a foreign respondent whether they are a defendant, or a third party who is holding property on behalf of a defendant.1 Rules 32.2 and 32.4 do not distinguish between a respondent resident within New Zealand or outside New Zealand. The Court of Appeal recently held, in Commerce Commission v Viagogo AG, that the fact that service has not occurred on a foreign defendant does not give rise to a jurisdictional barrier to the grant of interim relief. 2 I note also that under r 32.5, the court may grant relief in support of foreign proceedings even though the court may never assume jurisdiction over the substantive dispute.
The protest to jurisdiction
[18] Ora does not dispute that the court may grant a freezing order against a foreign respondent. Mr Williams accepted, on the authority of Viagogo, that interim orders against a foreign respondent may be made even before service but submitted this is a different case because Churchman J had directed that Ora be served. Ora was therefore entitled, he submitted, to protest jurisdiction and the protest should be determined as a preliminary question before any hearing of the freezing order application.
[19] Mr Williams also submitted that the court should not assume jurisdiction over Ora and make a freezing order in this case. Ora’s reasons were marshalled on two broad grounds. First, Mr Williams relied upon the principle of territoriality; namely that New Zealand is not the appropriate forum for the action to be heard. He argued that Primary Services had not established that:
i)The “claim” has a real and substantial connection with New Zealand; and
ii)There is a serious issue to be tried on the merits; and
1 Mareva Compania Naviera SA v International Bulk Carriers SA [1975] Lloyds Rep 509 (CA); Hunt v BP Exploration Co (Libya) Ltd [1980] 1 NZLR 104 (HC); Kuyt v Kuyt [2018] NZHC 619; Devoy v Goldex International Services Ltd [2013] NZHC 103.
2 Commerce Commission v Viagogo AG [2019] NZCA 472.
iii)New Zealand is the appropriate forum for the proceeding.
[20] Second, Ora argued that as it is resident in the Cook Islands the freezing order application should have been served in accordance with sub-pt 4 of pt 6 of the Rules.
[21] Mr Williams submitted that none of the circumstances where service may be effected out of New Zealand without leave under r 6.27 apply in this case and leave to effect service out of the jurisdiction under r 6.28 was not obtained. Ora was not therefore validly served. Furthermore, Primary Services did not comply with r 6.31 because Form G6 was not included with the documents and this was a significant defect.3
Application of rule 5.49
[22]The first issue is whether r 5.49, upon which Ora’s protest is based, has any
application in this case. Rule 5.49 relevantly provides:
5.49 Appearance and objection to jurisdiction
(1)A defendant who objects to the jurisdiction of the court to hear and determine the proceeding may, within the time allowed for filing a statement of defence and instead of so doing, file and serve an appearance stating the defendant’s objection and the grounds for it.
(2)The filing and serving of an appearance does not operate as a submission to the jurisdiction of the court.
(3)A defendant who has filed an appearance may apply to the court to dismiss the proceeding on the ground that the court has no jurisdiction to hear and determine it.
(4) …
(5)At any time after an appearance has been filed, the plaintiff may apply to the court by interlocutory application to set aside the appearance.
(6)The court hearing an application under subclause (3) or (5) must,—
(a) if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss the proceeding; and
(b) if it does not dismiss the proceeding under paragraph (a), set aside the appearance.
…
(7)To the extent that an application under this rule relates to service of process effected outside New Zealand under rule 6.27 or 6.28, it must be determined under rule 6.29.
…
3 Du v M5 Holdings Ltd [2019] NZHC 2313.
(8)The court, in exercising its powers under this rule, may do so on any terms and conditions the court thinks just and, in particular, on setting aside the appearance it may extend the time within which the defendant may file and serve a statement of defence and may give any directions that appear necessary regarding any further steps in the proceeding.
(9)If the appearance set aside has been filed in relation to a proceeding in which the plaintiff has applied for judgment under rule 12.2 or 12.3, the court—
(a) must fix the time within which the defendant may file and serve—
(i)a notice of opposition; and
(ii)an affidavit by or on behalf of the defendant in answer to the affidavit by or on behalf of the plaintiff; and
(b) may, under subclause (8), give any other directions that appear necessary regarding any further steps in the proceeding.
[23] Under r 5.49(1), an appearance objecting to the jurisdiction of the court to hear and determine a proceeding may be made by a defendant. The appearance must state the objection and the grounds for it “within the time allowed for filing a statement of defence.” If the court is satisfied it has no jurisdiction to hear and determine the proceeding it must dismiss it.4 If the court does not dismiss the proceeding it must set aside the appearance.
[24] Under the Rules “defendant” means “a person served or intended to be served with a proceeding (other than a third or subsequent party served with a proceeding under rule 4.12).” The term “proceeding” means “any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application.”5
[25] The freezing order application is not a proceeding. Primary Services applied for the freezing order by way of interlocutory application. Interlocutory applications are specifically excluded from the definition of a proceeding under the Rules. It also follows that Ora, who is not a party to the primary proceeding, is not a defendant for the purposes of the Rules.
[26] Furthermore, having been served with an interlocutory application there is no provision in the Rules allowing Ora to file a statement of defence. If Ora wished to
4 High Court Rules 2016, r 5.49(6).
5 High Court Rules 2016, r 1.3.
oppose the freezing order application, it could only do so by filing a notice of opposition in accordance with r 7.24.
[27] Alive to these difficulties, Mr Williams argued that r 5.49 should be applied by analogy; that is, the freezing order application should be regarded as if it were a proceeding and Ora should be regarded as if it were a defendant. Leaving aside the damage that this does to the language of the rule, it also fails to recognise the sense in which the term jurisdiction is being used in the phrase “objects to the jurisdiction of the court” in r 5.49(1).
[28] In Viagogo, the Court of Appeal considered the different senses in which the term jurisdiction is used and noted the importance of keeping them distinct.6 One sense refers to the jurisdiction of the court to finally determine a substantive claim against a defendant. This personal jurisdiction depends on valid service of the proceeding on the defendant in accordance with the Rules. It is the sense in which the term jurisdiction is used in r 5.49.7 In the context of r 5.49, the jurisdiction which is the subject of the protest is the entitlement of the court to entertain a proceeding.8
[29] Another sense concerns the circumstance under which the court has the power to grant interim relief against a defendant (or in this case, a non-party) pending final determination of a proceeding. The Court of Appeal noted that the granting of interim relief does not involve accepting that the court has jurisdiction to hear and determine a proceeding on the merits. 9 This jurisdiction, which is not engaged by r 5.49, is what the court is presently concerned with.
[30] A freezing order is an order that seeks to secure the purpose of litigation by preventing a defendant from siphoning assets out of the jurisdiction or squandering them to make any judgment obtained in the proceeding incapable of being satisfied. A freezing order acts in personam against a defendant or a third party who has control of a defendant’s assets and does not create any proprietary interest in the assets
6 At [49]– [54].
7 Commerce Commission v Viagogo AG [2019] NZCA 472 at [52].
8 Andrew Beck and others McGechan on Procedure (loosleaf ed, Brookers) at [HR5.49.03] citing
Young v Attorney-General [2018] NZCA 307 at [24].
9 At [79].
frozen.10 The important point is that a freezing order is supportive of a primary proceeding and ancillary to it.11 It is a form of interim relief and intended to improve the prospect of the court being able to do justice between the parties to the primary proceeding after a determination of the merits at a trial.12
[31] Applying the plain meaning of r 5.49, there is no basis upon which the court can entertain an appearance protesting jurisdiction from Ora.13 Ora’s protest falls at the first hurdle and must be set aside, but I will go on and consider the other matters it advances.
Was Ora properly served?
[32]Subpart 4 of pt 6 deals with service out of New Zealand. Rules 6.27 and 6.28
are concerned with service of an “originating document” which is defined in r 6.27(1).
[33] Rule 6.27 deals with circumstances where an originating document may be served abroad without leave of the court and relevantly provides:
When allowed without leave
(1)This rule applies to a document that initiates a civil proceeding, or is a notice issued under subpart 4 of Part 4 (third, fourth and subsequent parties), which under these rules is required to be served but cannot be served in New Zealand under these rules (an originating document).
(2)An originating document may be served out of New Zealand without leave in the following cases:
(a) …
(b) when a contract sought to be enforced or rescinded, dissolved, annulled, cancelled, otherwise affected or interpreted in any proceeding, or for the breach of which damages or other relief is demanded in the proceeding –
(i)was made or entered into in New Zealand; or
(ii)was made by or through an agent trading or residing within New Zealand; or
(iii)was to be wholly or in part performed in New Zealand; or
10 Andrew Beck and others McGechan on Procedure (loosleaf ed, Brookers) at [HRPt 32.01(c), (d)].
11 Polly Peck International plc v Nadir (No 2) [1992] 4 All ER 769, 785 and Reid Mortensen “Duty Free Forum Shopping: Dispute Venue in the Pacific” (2001) 32 VUWLR 673, 684.
12 Commerce Commission v Viagogo AG [2019] NZCA 472 at [7] and [8].
13 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94; [2013] 1 NZLR 804 at [25].
(iv)was by its terms or by implication to be governed by New Zealand law:
(c) when there has been a breach in New Zealand of any contract, wherever made:
(d) …
(e) when the subject matter of the proceeding is land or other property situated in New Zealand, or any act, deed, will, instrument, or thing affecting such land or property;
(f) …
(g) when any relief is sought against any person domiciled or ordinarily resident in New Zealand:
(h) when any person out of the jurisdiction is –
(i)a necessary or proper party to proceedings properly brought against another defendant served or to be served (whether within New Zealand or outside New Zealand under any other provision of these rules), and there is a real issue between the plaintiff and that defendant that the court ought to try;
(ii)…
[34] Rules 6.28 deal with circumstances where service of an originating document may be effected abroad with the leave of the Court and provides:
When allowed with leave
(1)In any proceeding when service is not allowed under rule 6.27, an originating document may be served out of New Zealand with the leave of the court.
(2)An application for leave under this rule must be made on notice to every party other than the party intended to be served.
(3)A sealed copy of every order made under this rule must be served with the document to which it relates.
(4)An application for leave under this rule must be supported by an affidavit stating any facts or matters related to the desirability of the court assuming jurisdiction under rule 6.29, including the place or country in which the person to be served is or possibly may be found, and whether or not the person to be served is a New Zealand citizen.
(5)The court may grant an application for leave if the applicant establishes that—
(a) the claim has a real and substantial connection with New Zealand; and
(b) there is a serious issue to be tried on the merits; and
(c) New Zealand is the appropriate forum for the trial; and
(d) any other relevant circumstances support an assumption of jurisdiction.
[35] Ora submits that none of the circumstances under r 6.27 apply and leave to serve the freezing order application out of the jurisdiction under r 6.28 was not obtained. I do not accept this submission. The freezing order application is not a civil proceeding and, it follows, not an originating document. Rules 6.27 and 6.28 have no application in this case.14
[36] Mr Williams relied upon the first instance decision of Priestley J in Commissioner of Police v Vincent.15 Vincent concerned an application by the Commissioner under the Criminal Proceeds (Recovery) Act 2009. Without notice restraining orders were made against Mr Vincent. Mr Vincent lived overseas and applied to set aside the orders alleging he was not validly served. Priestley J expressed the view that rr 6.27 to 6.35 are of general application to any document that “initiates a civil proceeding (be it by interlocutory or originating application).”16 I am unable to accept that is a correct statement. The definition of a proceeding expressly excludes an interlocutory application. Vincent concerned an originating application, not an interlocutory application and the Judge’s comment was obiter dictum. He also did not refer to the definition of “proceeding” in the Rules.
[37] The inclusion of interlocutory applications within the definition of an originating document is inconsistent with r 6.31, which in the case of a defendant served overseas, requires Form G6 to accompany the notice of proceeding. Interlocutory applications do not require a notice of proceeding. It is also inconsistent with r 7.24, relating to the filing of a notice of opposition to an interlocutory application.17
14 Matthew Casey and others Sim’s Court Practice (looseleaf ed, LexisNexis) at [HCR6.27.3] and
Kroma Colour Prints v Atco Controls (2007) 18 PRNZ 510.
15 Commissioner of Police v Vincent [2012] NZHC 2581.
16 At [24].
17 Vincent v Commissioner of Police [2013] NZCA 412 at [36].
[38] The freezing order application was not an originating document. It was served upon Ora pursuant to leave granted by Churchman J. The jurisdictional basis for directing service upon Ora was r 6.30.
[39]Rule 6.30 provides:
Service of other documents outside New Zealand
Any document other than an originating document required by any rule to be served personally may be served abroad with the leave of the court, which may be given with any directions the court thinks fit.
[40] Rule 6.30 applies to service abroad of any document, other than an originating document, that is required to be served personally. Any such document may be served with the leave of the court. Primary Services was directed by Churchman J to serve the freezing order application upon Ora. The freezing order application was served in accordance with the laws of the Cooks Islands. There is no doubt that Ora received the document and has responded to it. Ora was validly served with the freezing order application.
Is New Zealand the proper forum?
[41] To the extent that an application under r 4.59 to dismiss a proceeding on the grounds the court has no jurisdiction to hear it or to set aside an appearance in protest to jurisdiction, relates to service of process effected overseas under rule 6.27 or 6.28, it must be determined under r 6.29.18
[42]Rule 6.29 relevantly provides:
Court’s discretion whether to assume jurisdiction
(1)If service of process has been effected out of New Zealand without leave, and the court’s jurisdiction is protested under rule 5.49, the court must dismiss the proceeding unless the party effecting service establishes—
(a) that there is—
(i)a good arguable case that the claim falls wholly within 1 or more of the paragraphs of rule 6.27; and
18 High Court Rules 2016, r 5.49(7).
(ii)the court should assume jurisdiction by reason of the matters set out in rule 6.28(5)(b) to (d); or
(b) that, had the party applied for leave under rule 6.28,—
(i)leave would have been granted; and
(ii)it is in the interests of justice that the failure to apply for leave should be excused.
(2)If service of process has been effected out of New Zealand under rule 6.28, and the court’s jurisdiction is protested under rule 5.49, and it is claimed that leave was wrongly granted under rule 6.28, the court must dismiss the proceeding unless the party effecting service establishes that in the light of the evidence now before the court leave was correctly granted.
….
[43] Starting from the position that Primary Services did not have leave to effect service on Ora (which is incorrect), Ora argued that Primary Services has not and cannot establish:19
a)there is a good arguable case that the freezing order falls within r 6.27 (so that service could be effected without leave); and
b)that the court should assume jurisdiction by reason of the matters set out in r 6.28(5)(b) to (d).
[44]At [4.2] of his written submissions Mr Williams argued:
The present claim against the second respondent is not for “a permanent injunction to compel or restrain the performance of any act in New Zealand”. Instead, it is an interim one given the alleged “danger that judgment in favour of the applicant will be wholly or partly unsatisfied” by the first respondent. In any event, a claim for a freezing order is not of itself sufficient to found jurisdiction.
[45]Ora’s submissions proceed on at least three incorrect premises. First, that the
freezing order application is an originating document for the purposes of rr 6.27 and
6.28. Second, that Primary Services did not have leave to effect service on Ora. Third,
19 Wing Hung Printing Company Ltd v Saito Offshore Pty Ltd [2010] NZCA 502, [2011] 1 NZLR 754.
that the relevant “claim” for the purposes of rr 6.27 and 6.28 is the freezing order
application.
[46] In relation to this last matter, the relevant claim is the primary proceeding (between Primary Services and Mr Fonagy and Mr Paynter). The court plainly has jurisdiction to hear that proceeding.
[47] In support of the submission that “a claim” for a freezing order is not of itself sufficient to found the court’s jurisdiction, Mr Williams referred to the Owners of Cargo lately laden on board the vessel Siskina v Distos Compania Naviera SA (“The Siskina”)20 which was cited by McGechan J in Sundance Spas New Zealand Ltd v Sundance Spas Inc21 and commentary in McGechan.22 Mr Williams did not, however, refer to the commentary in McGechan that casts doubt on these authorities.
[48] The Siskina and Sundance once stood as authority that the right to an interim injunction cannot exist in isolation and must always be incidental to and dependent upon a substantive proceeding that is subject to the jurisdiction of the court.23 In both cases, the court held that it had no jurisdiction to grant a Mareva injunction against a foreign defendant other than in support of a cause of action in respect of which the defendant was amenable to the jurisdiction. However, The Siskina was subject to much criticism. It appears that McGechan J in Sundance considered The Siskina’s application was not without difficulty and produced a harsh result.24
[49] The law in the United Kingdom and New Zealand has developed since The Siskina and Sundance were decided.25 In New Zealand, under r 32.5 the court may make freezing orders where the substantive proceeding is in a foreign jurisdiction. In Yos v Heng,26 Miller J noted that pt 32 of the High Court Rules effected substantial changes to the law relating to freezing orders, effectively reversing the rule in The
20 Owners of Cargo lately laden on board the vessel Siskina v Distos Compania Naviera SA (“The Siskina”) [1979] AC 210, [1977] 3 All ER 803 (HL)
21 Sundance Spas New Zealand Ltd v Sundance Spas Inc [2001] 1 NZLR 111 (HC).
22 Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [HR6.27.11].
23 Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334; [1993] 1 All ER 664.
24 The Siskina, above n 20, at [51] and [56].
25 Lord Collins and Jonathan Harris (eds) Dicey, Morris & Collins on the Conflict at Laws (15th ed, Sweet & Maxwell, London 2018) at [8-029-8-030].
26 Yos v Heng HC Wellington CIV-2009-485-234, 1 December 2009.
Siskina that freezing orders are dependent upon substantive proceedings being brought within the jurisdiction.27
[50] But this is by-the-by, as in this case the court is seized of a valid substantive action to which the freezing order (if granted) may attach. It is the primary proceeding.
[51]Mr Williams referred to [85] of the Court of Appeal’s judgment in Viagogo,
where the Court said:28
We should not be understood as suggesting that interim relief can be granted without any reference to the jurisdiction of the New Zealand court to hear and determine the substantive claim against the defendant. The inquiry into whether there is a serious issue to be tried is in effect an inquiry into whether there is a real prospect that the court will ultimately grant relief against the defendant. It is the prospect of an eventual determination in favour of the plaintiff that justifies preserving the position until the court has had an opportunity to finally determine whether to grant the relief sought by the plaintiff.
[52] This extract does not assist Ora. The substantive claim in the present case is not the freezing order application but the primary proceeding.
[53] Mr Williams referred me to several authorities all of which concerned defendants protesting jurisdiction. He did not refer to any authority where a respondent to an application for interim orders that was not a party to the substantive claim was found to be entitled to object to the court’s jurisdiction on forum non conveniens grounds.29
[54] The making of a freezing order against a foreign respondent raises special concerns. In the United Kingdom, with the development of the worldwide freezing order the practise has been to subject the making of such orders to limitations. 30 The matters raised by Ora in relation to the merits of the freezing order application, its connection to this jurisdiction, the nature of its business and the law governing the
27 At [7].
28 Commerce Commission v Viagogo AG, above n 2.
29 Cockburn v Kinzie Industries Inc (1988) 1 PRNZ 243; Du v M5 Holdings Ltd, above n 3, Kuwait Asia Bank EC v National Mutual Nominees Ltd, and Wing Hung Co Ltd v Saito Offshore Pty Ltd, above n 19.
30 Lord Collins and Harris, above n 25, at [8-021].
relevant transactions in this case are all matters that it can raise in opposition to the making of the freezing order, but not at this stage.
Result
[55]I am satisfied that the court has jurisdiction to hear and determine the freezing
order application. Ora’s appearance and protest to jurisdiction is set aside.
[56] It has been unnecessary for me to consider the application in [1](b) and it is dismissed.
[57] Any party wishing to apply for costs should apply by memoranda in 14 days with 7 days for any reply.
[58] If Ora wishes to oppose the freezing order application, it must file papers in opposition. I suggest Counsel confer and file preferably a joint memorandum of timetable orders sought by no later than 25 November 2019. This memorandum is to be referred to Dunningham J.
O G Paulsen Associate Judge
3
9
1