MG Corrosion Consultants Pty Ltd v Gilmour [2012] FCA 568

MG Corrosion Consultants Pty Ltd v Gilmour [2012] FCA 568

The defendants lack other means to meet reasonable legal expenses, expert witness costs, mortgage payments, and usual living expenses. There is no real opposition to allowing mortgage and living expenses, and a refinement of the freezing order is appropriate to allow specified payments to prevent injustice, but amounts for an expert witness and ongoing legal fees are set at reasonable estimates based on evidence. No further sum is allowed for payment to the liquidator.

Parties
Plaintiff and First Cross Respondent: MG Corrosion Consultants Pty Ltd ACN 084 715 177; First Defendant and First Cross Claimant: Malcolm Stewart Gilmour; Second Defendant and Second Cross Claimant: Magil Nominees Pty Ltd ACN 009 059 607; Second Cross Respondent: Alberto Cesario Vinciguerra
Jurisdiction
Australia
Judgment Date
31 May 2012
Procedural Posture
Corporations Interlocutory Application / Application to Vary Freezing Order
Outcome
Variation of freezing order granted in part, with costs ordered against defendants.
Legal Topics
Freezing Orders, Interlocutory Relief, Variation of Court Orders
Corporations Law Freezing Orders Interlocutory Relief Variation of Court Orders

Case Brief

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Parties

MG Corrosion Consultants Pty Ltd ACN 084 715 177

Plaintiff and First Cross Respondent

Malcolm Stewart Gilmour

First Defendant and First Cross Claimant

Magil Nominees Pty Ltd ACN 009 059 607

Second Defendant and Second Cross Claimant

Alberto Cesario Vinciguerra

Second Cross Respondent

Procedural Posture

Corporations Interlocutory Application / Application to Vary Freezing Order

Legal Issues

  1. 1 Whether freezing order should be varied to permit payment of legal, expert, mortgage and living expenses from frozen assets
  2. 2 Whether there has been sufficient change of circumstances to warrant variation

Ratio Decidendi

The defendants lack other means to meet reasonable legal expenses, expert witness costs, mortgage payments, and usual living expenses. There is no real opposition to allowing mortgage and living expenses, and a refinement of the freezing order is appropriate to allow specified payments to prevent injustice, but amounts for an expert witness and ongoing legal fees are set at reasonable estimates based on evidence. No further sum is allowed for payment to the liquidator.

Court Disposition

Variation of freezing order granted in part, with costs ordered against defendants.

Orders

  • The freezing order of 16 April 2012 is varied to permit the defendants to pay from the frozen assets: (a) $27,000 for legal services up to 2 May 2012; (b) $35,000 for ongoing legal services; (c) $15,000 to an expert witness; (d) a weekly allowance of $1,000 for living expenses (first defendant); (e) monthly mortgage...
  • Defendants to pay the plaintiff's costs of this application to be taxed, if not agreed.